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Similaire à Federal and State Regulations for Biological Resources
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Federal and State Regulations for Biological Resources
- 1. ESP 179- Winter 2013 Biological Resources February 21, 2013 Instructor: Angela McIntire, Esq.
- 2. Lecture Outline Federal Regulatory Framework Federal Endangered Species Act of 1973 Section 404 of the Clean Water Act Migratory Bird Treaty Act State Regulatory Framework California Endangered Species Act California Native Plant Society Porter-Cologne Water Quality Control Act Section 401 of the Clean Water Act Streambed Alteration Agreements (CDFW Code Section 1600) Local Regulatory Framework (Generally) Review of Methodology Review CEQA Checklist Questions
- 3. Federal Endangered Species Act Administered by United States Fish and Wildlife Service and National Marine Fisheries Service Outlines Process for listing Species Endangered Threatened Proposed Methods for listing species Examples: Gray Wolf in the Northern Rockies; VELB; Bald Eagle
- 4. Federal Endangered Species Act Section 9 – Prohibits “Take” Take means “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct This includes disturbance to habitats used by a species during any portion of its life history Under ESA, USFWS may authorize “take”, however activities authorized by permits may differ depending on whether species is listed as endangered or threatened Endangered Species – Permits for scientific research; enhancement of propagation or survival; taking that is incidental to otherwise lawful activity Threatened Species – Permits issued for zoological, horticultural, or botanical exhibition; educational use; special purposes consistent with ESA Individuals Registered with USFWS may obtain captive-bred wildlife permits to buy and sell within US non-native endangered or threatened animals (Separate permit to import or export such species and can’t keep as pet)
- 5. Section 404 of the CWA Administered by US Army Corps of Engineers Regulates discharge of dredge and fill material into “Waters of the United States” Nationwide Permit – Authorize a number of activities in Waters of US if activity can demonstrate compliance with standard conditions Individual Permit - Area excess of 0.5 acre of waters Both require NO impacts to endangered species US Fish and Wildlife Service National Oceanic and Atmospheric Association (NOAA) Fisheries
- 6. Note: Waters of the United States Waters or tributaries to lakes, rivers, intermittent and perennial streams, mudflats, sand-flats, natural ponds, wetlands, wet meadows, and other aquatic habitats Ordinary High Water Mark Wetlands - South Pacific Division’s Guidelines for Jurisdictional Delineations for Waters of the US Require Three Conditions: Hydrophytic Vegetation Hydric Soils Wetland Hydrology All waters must show connectivity to a “Navigable Water” to be jurisdictional (i.e. “Significant Nexus” from 2006 Rapanos decision)
- 7. Migratory Bird Treaty Act (1918) Protects all common wild birds found in the US Exceptions: House sparrow, starling, feral pigeon Resident game birds (managed separately by state) Pheasant Grouse Quail Wild Turkey Unlawful for anyone to kill, capture, possess, buy, sell, trade, ship, import, or export any migratory bird including feathers, parts, nests, or eggs
- 8. CA Endangered Species Act Analogous to Federal ESA CDFW Administers California ESA Endangered Species Threatened Species Rare Species (plants) Species of Concern (informal) – no legal protection, but recognized as sensitive by CDFW Endangered and Threatened protected from take
- 9. California Native Plant Society CA Resource Conservation Organization that has inventoried Sensitive Plant Species Summarizes information on distribution, rarity, and endangerment of CA vascular plants Provides inventory of plant communities considered sensitive by State, Federal, Academic Institutions, various Conservation Groups Bases sensitivity determination on: Number Size of remaining occurrences Recognized Threats
- 10. Porter-Cologne Water Quality Control Act Enacted in 1969, the Act designated the State Water Resources Control Board with the ultimate authority over state water rights and water policy Also designated Regional Boards for day- to-day quality on a regional level Administer Basin Plans NPDES Permits (Point Sources – i.e. “pipes”) CWA 401 Certification Wetland and Riparian Area Protection Policy (NEW)
- 11. Section 401 of CWA Administered by State Water Resources Control Board “[A]ny applicant for a Federal permit for activities that involve a discharge to waters of the State, shall provide the Federal permitting agency a certification from the State in which the discharge is proposed that states the discharge will comply with the applicable provisions under the Federal Clean Water Act.”
- 12. Streambed Alteration Agreements Outlined in CDFW Code Section 1600-1603 “[I]t is unlawful for any person to substantially divert or obstruct the natural flow or substantially change the bed, channel, or bank of any river, stream, or lake designated by the department, or use any material from the streambeds, without first notifying the department of such activity.” CDFW Jurisdiction Ephemeral, Intermittent, Perennial watercourses Dry washes (NO NEED FOR OHWM!) Characterized by hydrophitic vegetation, definable bed and banks, presence of fish and wildlife resources Does NOT include isolated wetlands Also includes adjacent habitat Oak woodlands in canyon bottoms Willow woodlands that function as part of riparian system
- 13. Local Ordinances (Generally) Tree Ordinances Regulate Removal of certain native trees Examples: Oaks, Black Walnut, Madrone, Redwood, California Bay Typically identify “Protected Trees” as being a certain diameter Identify compensatory mitigation and/or replacement ratios Swainson’s Hawk Regulates Nesting and Foraging Habitat Identifies compensatory mitigation and/or replacement ratios Riparian Setbacks Defines building and development setbacks from riparian systems
- 14. Local Ordinances (Generally) Habitat Conservation Plans Section 10 of ESA Plan prepared under ESA by nonfederal parties to obtain permits for incidental taking of threatened and endangered species Plan must specify: Impacts to species that will occur Steps taken to minimize and mitigate the incidental take Funding available Alternative actions considered, but not taken Other necessary appropriate measures After review of proposed conservation plan, USFWS/NOAA and/or CDFW issue incidental take permits, provided a determination is made that incidental taking “will not appreciably reduce the likelihood of the survival and recovery of the species in the wild”
- 15. Methodology Literature Review Topographic Quadrangle/Aerial Maps Soil Surveys CDFW California Wildlife Habitat Relationship System California Natural Diversity Database California Native Plant Society Existing Habitat Conservation Plans Site Visit Note time, climate conditions Characterize wildlife and plant species onsite Species specific requirements
- 16. Sources of Information California Natural Diversity Data Base Department of Fish and Game (CDFW) The California Native Plant Society's Inventory of Rare and Endangered Plants of California CDFW's list of special animals and plants California Statewide Wildlife Habitat Relationships System
- 17. Sample Species Specific Guidance Burrowing Owls Survey Protocol and Guidance Blunt Nose Leopard Lizard Swainson Hawks Staff Report and Guidance California Red-Legged Frog San Joaquin Kit Fox
- 18. CNDDB Map
- 19. Mitigating Biological Resources Species and/or Habitat Specific Often Regional Based Mitigation Fees and Funds Mitigation Banks Pre Approved Allows for larger conservation areas Not always 1:1 ratio Success Rates Transfer Type Convergence Permitting Agencies Section 10 Section 7
- 20. Appendix G: Checklist Questions
- 21. Appendix G: Checklist Questions
- 24. Significant Biological Impacts What are a few types of projects? Mining/Petroleum Extraction Transportation Projects Residential and Commercial Development Large Industrial/Residential Developments Wind Power Solar Power Many, many more.
Notes de l'éditeur
- History Near-extincition of the bison, whooping crane, and disappearance of the passenger pigeon helped drive the call for wildlife conservation starting in the 1900s; public introduced to a new concept: extinction. Several iterations were passed between the 1900s and 1960s, however in the 1970s, Nixon declared current conservation efforts inadequate; congress responded with a completely re-written law that was put together by a team of lawyers and scientists. Designed to protect species and the ecosystems upon which they end. Has been likened to the Magna Carta of the environmental movement The ESA defines as “endangered” any plant or animal species that is in danger of extinction throughout all or a significant portion of its known geographic range. A “threatened” species is a species that is likely to become endangered. A “proposed” species is one that has been officially proposed by the USFWS for addition to the federal threatened and endangered species list. To list: Conduct assessments to identify species most in need of the ESA’s protection and the activities that threaten them; and Work through partnerships to conserve species by imiproving habitat and removing threats Species Assessments Emphasizes coordination with States to obtain the best available information on species status and recommendations for conservation; and Provides the foundation for planning and implementing voluntary conservation efforts that are most likely to be effective in improving the status of the species EXAMPLE: Thousands of gray wolves once ranged throughout the Northern Rockies, but were aggressively eliminated by the 1930s. Due to its listing in the ESA and the work of a variety of interest groups, the Northwest Montana Recovery Area supported 326 wolves and 21 breeding pairs. In May 2011, the Service published a direct final rule delisting wolves in Idaho, Montana, and parts of Oregon, Washington, and Utah. EXAMPLE: VELB EXAMPLE: Bald Eagles - Forty years ago, our national symbol was in danger of extinction throughout most of its range. Habitat destruction and degradation, illegal shooting, and the contamination of its food source, largely as a consequence of DDT, decimated the eagle population. Habitat protection afforded by the Endangered Species Act, the federal government’s banning of DDT, and conservation actions taken by the American public have helped Bald Eagles make a remarkable recovery. Bald Eagles were removed from the endangered species list in August 2007 because their populations recovered sufficiently.
- Following years of development, in the 1960s, the public was recognizing the dangers of ignoring its water supplies: Pollution in Chesapeake Bay was found to cause $3 million in losses to the fishing industry DDT was prevalant in water supplies Bacteria levels in the Hudson River were at 170 times the safe limit In 1969, a floating oil slick on the Cuyahoga River near Cleaveland, Ohio burst into flames In 1972, CWA was a response to the nearly unchecked dumping of pollution into waterways. At the time, two-thirds of the country’s lakes, rivers, and coastal waters had become unsafe for fishing or swimming. Untreated sewage was being dumped into open water. The USACE administers Section 404 of the federal Clean Water Act (CWA). This section regulates the discharge of dredge and fill material into waters of the U.S. USACE has established a series of nationwide permits that authorize certain activities in waters of the U.S., if a proposed activity can demonstrate compliance with standard conditions. Normally, USACE requires an individual permit for an activity that will affect an area equal to or in excess of 0.5 acre of waters of the U.S. Projects that result in impacts to less than 0.5 acre can normally be conducted pursuant to one of the nationwide permits, if consistent with the standard permit conditions. USACE also has discretionary authority to require an Environmental Impact Statement for projects that result in impacts to an area between 0.1 and 0.5 acre. Use of any nationwide permit is contingent on the activities having no impacts to endangered species. Example Nationwide Permits (50 of them): Maintenance Outfall Structures/Intake Structures Utility Lines Bank Stabilization Transportation Projects Mining Activities Tons more!
- The Migratory Bird Treaty Act of 1918 ( MBTA ), codified at 16 U.S.C. §§ 703 – 712 (although §709 is omitted), is a United States federal law , at first enacted in 1916 in order to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada [1] ). The statute makes it unlawful to pursue, hunt, take, capture, kill or sell birds listed therein ("migratory birds"). The statute does not discriminate between live or dead birds and also grants full protection to any bird parts including feathers, eggs and nests. Over 800 species are currently on the list. Narrow exceptions to the act, known as the eagle feather law , are enacted in federal regulations (50 C.F.R. 22), which regulates the taking, possession, and transportation of bald eagles , golden eagles , and their "parts, nests, and eggs" for "scientific, educational, and depredation control purposes; for the religious purposes of American Indian tribes; and to protect other interests in a particular locality." Enrolled members of federally recognized tribes may apply for an eagle permit for use in " bona fide tribal religious ceremonies." [2] The Act was enacted in an era when many bird species were threatened by the commercial trade in birds and bird feathers . The Act was one of the first federal environmental laws (the Lacey Act had been enacted in 1900). The Act replaced the earlier Weeks-McLean Act (1913). Since 1918, similar conventions between the United States and four other nations have been made and incorporated into the MBTA: Mexico (1936), Japan (1972) and the Soviet Union (1976, now its successor state Russia ). Some of these conventions stipulate protections not only for the birds themselves, but also for habitats and environs necessary for the birds' survival.
- Implemented in 1984 to remedy previous conservation efforts. Generally, it mirrors FESA and is administered by CDFW The California Endangered Species Act (CESA) generally parallels the main provisions of the FESA, but unlike its federal counterpart, the CESA applies the take prohibitions to species proposed for listing (called candidates by the State). Section 2080 of the CDFW Code prohibits the taking, possession, purchase, sale, and import or export of endangered, threatened, or candidate species, unless otherwise authorized by permit or in the regulations. Take is defined in Section 86 of the CDFW Code as to “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” The CESA allows for take incidental to otherwise lawful development projects. State lead agencies are required to consult with the CDFW to ensure that any action they undertake is not likely to jeopardize the continued existence of any endangered, threatened, or candidate species or result in destruction or adverse modification of essential habitat. The CDFW administers the act and authorizes take through Section 2081 agreements (except for designated fully protected species). The State of California considers an “endangered” species one whose prospects of survival and reproduction are in immediate jeopardy. A “threatened” species is one present in such small numbers throughout its range that it is likely to become an endangered species in the near future in the absence of special protection or management. A “rare” species is one present in such small numbers throughout its portion of its known geographic range that it may become endangered if its present environment worsens.
- The California Native Plant Society (CNPS) is a California resource conservation organization that has developed and inventory of California’s sensitive plant species. This inventory summarizes information on the distribution, rarity, and endangerment of California’s vascular plants. The inventory is divided into four lists based on the rarity of the species. In addition, the CNPS provides an inventory of plant communities that are considered sensitive by the state and federal resource agencies, academic institutions, and various conservation groups. Determination of the level of sensitivity is based on the number and size of remaining occurrences as well as recognized threats.
- The RWQCB regulates actions that would involve “discharging waste, or proposing to discharge waste, within any region that could affect the water of the state” (Water Code Section 13260(a)), pursuant to provisions of the Porter-Cologne Water Quality Act. “Waters of the State” are defined as “any surface water or groundwater, including saline waters, within the boundaries of the state” (Water Code Section 13050(e)). Each Basin Plan establishes: 1) beneficial uses of water designated for each water body to be protected; 2) water quality standards, known as water quality objectives, for both surface water and groundwater; and 3) actions necessary to maintain these standards in order to control non-point and point sources of pollution to the State's waters. Regional Boards regulate all pollutant or nuisance discharges that may affect either surface water or groundwater. Any person proposing to discharge waste within any region must file a report of waste discharge with the appropriate regional board. No discharge may take place until: 1) the Regional Board issues waste discharge requirements or a waiver of the waste discharge requirements, and 2) 120 days have passed since complying with reporting requirements. Under the auspices of the U.S. Environmental Protection Agency, the State Board and nine Regional Boards also have the responsibility of granting Clean Water Act National Pollutant Discharge Elimination System permits, commonly known as NPDES permits, for certain point-source discharges. In summary, California routinely issues NPDES permits to selected point-source dischargers and either waste discharge requirements or conditioned water quality certification for other discharges. The nine Regional Boards differ somewhat in the extent they choose to apply waste discharge requirements and other regulatory actions. Project proponents should be careful to check with the appropriate Regional Board before proceeding with any action which may result in a discharge to State waters. Wetland and Riparian Area Protection Policy As directed by the State Water Board in Resolution No. 2008-0026 , the Wetland and Riparian Area Protection Policy is being implemented in three phases which will allow for necessary infrastructure and program development. The current Phase 1 effort is now called the “Wetland Area Protection and Dredge and Fill Permitting Policy.” The purpose of Phase 1 is to protect all waters of the State, including wetlands, from dredge and fill discharges. It includes a wetland definition and associated delineation methods, an assessment framework for collecting and reporting aquatic resource information, and requirements applicable to discharges of dredged or fill material. Phases 2 and 3 are not under consideration at this time. Current efforts on Phase 1 are focused on developing a Draft Program Environmental Impact Report and accompanying draft policy and draft regulation text.
- Under federal Clean Water Act (CWA) section 401 every applicant for a federal permit or license for any activity which may result in a discharge to a water body must obtain State Water Quality Certification (Certification) that the proposed activity will comply with state water quality standards. Most Certifications are issued in connection with U.S. Army Corps of Engineer (Corps) CWA section 404 permits for dredge and fill discharges. Once a complete application has been received, the State Board and regional boards have a federal agency-dependent time period to issue or deny 401 Water Quality Certification, or to request that the federal agency provide additional time for review. For the Corps [U.S. Army Corps of Engineers], the regional boards and State Board have 60 days to issue or deny 401 Water Quality Certification, or to request from the Corps a time extension of up to one year. If the State Board or regional boards fail to take any action within the specific time period, the federal agency can assume that 401 Water Quality Certification has been waived by the state, and the federal agency can proceed through the rest of its permitting process. The current regulations do not allow the State Board or regional boards to “waive” through inaction; and therefore, some action (deny, issue, request additional time) must be taken within the specified time period. Once again for the Corps, the time period is 60 days upon receipt of a complete 401 Water Quality Certification application.