Legalized Recreational Marijuana: Land Use and Environmental Laws
Schroder Zippin Slides PRESENTATION_linkedIn
1. 1
Complex Section 10 Permits
David Zippin, Ph.D., ICF International
Katie Schroder, JD, Bjork Lindley Little
PC
Rocky Mountain Mineral Law
Foundation ESA Conference
November 2015
Denver, CO
2. 2
• Background on section 10 permits
• Structures of section 10 permits
• What area should the HCP cover?
• Which species should the HCP
cover?
• Amount of take authorized
• Conclusions
Overview
3. 3
• Section 10(a)(1)(A) Authorized Take Permits
– Scientific research and recovery permits
– Interstate commerce permits
• Section 10(a)(1)(B) Incidental Take Permits (ITP)
Background: Section 10 Permits
– Enhancement of survival permits
• Safe Harbor Agreements
• Candidate Conservation Agreements with Assurances (CCAA)
– Incidental Take Permits
• Habitat Conservation Plans (HCP)
4. 4
• Require at least one listed wildlife species
• Require preparation of a Habitat Conservation Plan
(HCP)
– HCP may include Implementing Agreement
• Prior to issuing a permit, the FWS or NMFS must
find the statutory requirements of HCP and permit
are met.
• FWS has issued 826 incidental
take permits accompanying
701 HCPs in at least 31 states
and Puerto Rico (Oct. 12, 2015).
Background: Incidental Take Permits
6. 6
• Candidate Conservation Agreements with
Assurances (CCAAs)
– Cover candidate species and species likely to become
candidates
– Available to non-federal property owners
– Conservation measures that preclude or remove the need
to list the covered species
– Assurances that additional conservation measures or land,
water, or resource use restrictions will not be imposed if
the species is listed
• Notable CCAAs protect the lesser prairie-chicken,
dunes sage-brush lizard, and southern Idaho ground
squirrel
Background: Enhancement of Survival Permits
7. 7
• Safe Harbor Agreements
– Cover listed species
– “Restore, enhance, or maintain” habitats and/or
populations of listed species
– Commitments intended to improve habitat or populations
above baseline conditions – “net conservation benefit”
– Non-federal property owners receive authority to use
property in any manner that does not result in property
falling below below baseline conditions
• Notable example is the PG&E Antioch Dunes Safe
Harbor Agreement (Lange’s metalmark buttterfly)
Background: Enhancement of Survival Permits
8. 8
• Notice in the Federal Register
• Opportunity for public comment
• Compliance with the National Environmental Policy
Act (NEPA)
• Compliance with section 7 of the ESA
– For HCPs and SHAs, “intra-Service” section 7 consultation
– For CCAAs, “intra-Service” section 7 conference
• Compliance with the National Historic
Preservation Act (NHPA)
Process for Approving Section 10 Permits
9. 6 Types of Section 10
Permit Structures Every ESA
Expert Must Understand
10. 10
Basic Structure of Section 10 Permits
FWS
Permittee
Service
Permittee
Service
Permittee
Service
Permittee
Service
Permittee
Service
Permittee
11. 11
• Consolidated resources to develop the conservation
plan
• Coordinate multiple property owners’ land use
activities
• Work toward landscape-level conservation
• Efficiency in permitting the conservation plan
• Efficiency in implementing the conservation plan
Why Use a Complex Permit Structure?
12. 12
• Ability to predict impacts from permitted activities
• Ability to anticipate participation levels in a complex
permit
• Number of public comment periods
• Party who will develop the permit
• Party who will be responsible for monitoring and
reporting
• Participant confidentiality
Considerations When Choosing a Structure
13. 13
• Programmatic permits
• General conservation plans
• Primary permit conservation plans
• Jointly held permits and co-permittees
• Combinations of permit structures
Types of Complex Permits
14. 14
• Single permittee
– Local government
– State agency
– Nonprofit organization
• Multiple participants
• Permittee’s control over
participant
– Jurisdictional
– Contractual (Certificate
of Participation or
Inclusion)
Programmatic Permits
FWS
Permittee
Participant Participant Participant
15. 15
General Conservation Plans
• Single conservation plan
– Developed by Service
• Multiple permittees
• One NEPA analysis and
section 7 consultation/
conference
• Multiple public notice
and comment periods
Service
Permittee Permittee Permittee
16. 16
• Single permit issued
• Permit coverage
transferred to multiple
permittees
• One NEPA analysis and
section 7 consultation/
conference
Primary Permit Conservation Plan
Service
Permittee
Participant Permittee Permittee
17. 17
• Single permit
• Issued to multiple permittees
• Permittees hold permit
jointly
• Implementing
Agreement necessary
Jointly Held Permits & Co-Permittees
Service
Permittee Permittee Permittee
18. 18
• Permit structures
can be combined
• Structures are frequently
combined when permits
are issued to state or
local governments
Mix-and-Match: Combinations of Structures
Service
Permittee
(City 1)
Permittee
(County)
Permittee
(City 2)
Participant Participant
20. 20
• Plan area must include:
– All activities and projects that will receive
incidental take authorization
– All mitigation sites
– All monitoring and management activities
• Plan area vs. permit area
– Plan area boundary can be larger than
ultimate permit area
• Plan area for complex permits:
– Be inclusive, especially initially
– Balance economies of scale with
manageable size
What Area Should Complex Plans Cover?
21. 21
Larger plan areas for complex plans:
What Area Should Complex Plans Cover?
Pros
• More mitigation
options
• Reduce
implementation cost
• Cover more activities
• More competitive for
grants?
Cons
• Increased cost and
time to prepare
• Increased complexity
• More stakeholders?
22. 22
When determining plan area, consider:
• Locations of covered activities
• Ecological boundaries
• Physical boundaries (e.g., watersheds)
• Political boundaries (city, counties, states)
• Land ownership (state, federal)
• Regulatory agency jurisdictional
boundaries (Field Offices or
Regional Offices)
What Area Should Complex Plans Cover?
26. 26
Midwest Wind Energy Multi-Species HCP
• Focused on FWS Region 3 (8 states)
• 20+ wind companies, AWEA, and NGO
• Cover up to 9 species
– Indiana bat, gray bat, 3 others
– Piping plover
– Bald eagle
27. 27
Size of Approved HCPs
Source: USFWS 05/09/12
291
125
95
40
26 27
10
0
50
100
150
200
250
300
350
0-10 11-100 101-1,000 1,001-
10,000
10,001-
100,000
100,001-1
million
> 1 million
N
u
m
b
e
r
o
f
H
C
P
s
Size (acres)
28. 28
• Federal agencies must consult with FWS or NMFS
to determine whether their actions
– may affect a listed species or
– result in adverse modification to critical habitat
• Consultation documented in a biological assessment
• If a federal action “may adversely affect” a listed
species, FWS or NMFS issues a biological opinion
authorizing take (incidental take statement)
• Federal consultation requirement is often
misinterpreted in context of HCPs and section 10
Covering Federal Land in Complex HCPs
MYTH: Federal actions cannot be
covered by an HCP under section 10
29. 29
• Federal lands can be included in programmatic HCPs
– As long as HCP also includes some non-federal land
• Process for activities with federal nexus covered by HCP:
Covering Federal Land in Complex HCPs (cont’d)
Programmatic
Habitat
Conservation
Plan
Sect. 10
Incidental
Take
Permit
Intra-
Service
Biological
Opinion
Covered
Activity with
Federal Nexus
Simple
Project
Biological
Opinion
30. 30
Clark County, NV
• Covered urban development in
Las Vegas and surrounding
cities
• 89% of plan area = federal land
• Mitigation almost entirely on
federal land
Examples of Federal Activities in HCPs
1991
Short-term HCP for
Desert Tortoise (4 yrs)
1995
Long-term HCP for
Desert Tortoise (30 yrs)
2001
Long-term Multi-Species HCP
(30 yrs)
31. 31
East Contra Costa County HCP, CA
• Covers urban and rural development
• Many covered activities have federal
nexus
– Federal jurisdictional wetland permit
– Federal Highways Administration funding
• Biological Opinions issued
– Reference HCP, ITP, Intra-Service BiOp
– 2-6 pages
– Take a few weeks
• HCP has first Clean Water Act Regional
General Permit from Army Corps
– Biological Opinion on RGP provides
additional streamlining
Examples of Federal Activities in HCPs (cont’d)
32. 32
• Covered species = species, subspecies, or distinct
population segments for which the applicant requests
incidental take authorization under the ESA.
• May include both listed and non-listed species
• Must include at least one listed fish or wildlife species
• All non-listed covered species must be treated in HCP as
if listed
• Species list for single project HCPs vs.
Species list for large programmatic HCPs
– Many choices
– May be conflicting input from stakeholders
– Recommend using clear criteria and a
systematic process
Which Species to Cover?
33. 33
Recommended Selection Criteria:
• Range: Species in the plan area or expected during
permit?
• Status: Listed species or non-listed species likely to
become listed during permit term
• Impact: Species adversely affected by the covered
activities and result in take?
– Listed and non-listed species, including plants
• Data: Are data sufficient to evaluate effects, impact of
the taking, and develop adequate
mitigation measures?
• Programmatic HCPs: the “list
dilemma”
Which Species to Cover? (cont’d)
34. 34
Covered Species in Approved HCPs
Source: USFWS
452
50 37
20 19 7 13 2
0
50
100
150
200
250
300
350
400
450
500
1 2 3-5 6-10 11-25 26-50 51-100 >100
N
u
m
b
e
r
o
f
H
C
P
s
Number of Species
35. 35
2011 Settlement Agreements
• Settlement Agreements
with Wild Earth and
Center for Biological
Diversity
• Commits USFWS to
listing decisions on >750
species by 2018
• Could increase listed
species by 20-40%
• Highest rate of listing
since 1994
• Most species are:
– Aquatic invertebrates
(35%)
– Plants (27%) 0
100
200
300
400
500
Species Groups
36. 36
• Expressly allocate take among permittees
• “Use or lose”
– Desert Renewable Energy Conservation Plan
• Tiered take limits
– Lānai‘i Meteorological Towers HCP
3 Essential Ways to
Allocate Authorized Incidental Take
37. 37
Your Burning Questions
About Section 10 Permits –
ANSWERED!
Katie Schroder
kschroder@bjorklindley.com
David Zippin
david.zippin@icfi.com
