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Key Topics

Undersection 7(a)(2) of the ESA, federal agencies must “consult” with FWS (or NMFS) to “insure” that the activities they are proposing to “authorize, fund, or carry out” will not be likely to “jeopardize the continued existence of any endangered species or any threatened species or result in the destruction or adverse modification of [critical] habitat of such species.” At the conclusion of a consultation, FWS(or NMFS) will provide the action agency a Biological Opinion (BiOp) in which it will state whether any such effects are likely to occur. If they are, then the BiOp will sometimes be referred to as a Jeopardy Opinion; if they are not, then the BiOp will sometimes be referred to as a No Jeopardy Opinion. Read IPAA’s ESA Fact Sheet to learn more.

What do “jeopardize” and “adverse modification” mean?

“To jeopardize the continued existence of” is defined as “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 CFR§ 402.02.
The regulatory definition of “adverse modification” was ruled invalid in 2004 in Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). The definition has not yet been changed, although the Obama Administration has announced its intention to do so. In the meantime, FWS follows the guidance issued on December 9, 2004 in making “adverse modification” determinations. [link to guidance] The guidance discusses the factors that must be considered in determining whether “adverse modification” is likely to occur, but does not set a uniform standard that must be met in all cases, as the regulation did. The guidance directs that, having examined the current condition of the habitat, and the expected direct, indirect, and cumulative effects that the proposed action is likely to have on the habitat, FWS is to “discuss [its conclusions about] the significance of the these anticipated effects to critical habitat, and then to discuss “whether, with implementation of the proposed Federal action, critical habitat would remain functional … to serve the intended conservation role for the species.”

What is a 4(d) rule?

The regulations make it illegal for any person to “take” any member of a species that has been listed as “threatened.” “Take” is defined broadly to cover a wide variety of activities that might “harm” or “harass” the species. Under section 4(d) of the ESA, however, FWS has discretion to adopt special rules for particular species that tailor the take prohibitions for that species to the activities that are threats to that species’ survival—i.e., that permit some activities (subject to certain conditions) that would otherwise be prohibited. Such special rules are called 4(d) rules and are adopted through a formal rulemaking at the same time as the listing of the species is made final. 4(d) rules are, in effect, Incidental Take Permits that apply to a broad class of persons, rather than to just one permit holder. Persons who may be affected by the listing of a species will often support the adoption of a 4(d) rule for the species and will suggest in their comments to FWS what the provisions of such a rule should be. 4(d) rules may not be adopted for “endangered” species.
An example of a 4(d) rule is the one adopted in 2014 for the lesser- prairie chicken. [cite to link]. That rule, for example, allows for incidental take of the chicken as a result of routine agricultural practices on existing cultivated lands and for activities conducted pursuant to the Western Association of Fish and Wildlife Agencies’ Lesser-Prairie Chicken Range-wide Conservation Plan. The Conservation Plan acts, in effect, as a range-wide Habitat Conservation Plan and landowners who comply with its requirements can go about their normal activities without fear of being liable for incidental take and without the need to develop their own Habitat Conservation Plan or to obtain their own Incidental Take Permit.

What is critical habitat and how does it get designated?

“Critical habitat” is: 1) the areas within the geographical area occupied by a species at the time it is listed on which are found biological and physical features thatFWS determines are essential to the conservation of the species; and 2) the areas outside the geographical areas occupied by a species at the time it is listed that are determined by FWS to be essential for the conservation of the species.
“Critical habitat” is supposed to be designated at or about the time a species is listed through a formal rulemaking process. However, it cannot be designated if the FWS determines that the habitat is not “determinable: or if FWS determines that designating it would not be “prudent” –e.g., if designating it would encourage its destruction. An area can be excluded from a “critical habitat” designation if FWS determines that the economic benefits of excluding it outweigh the benefits of including it.
FWS calls the designation of “critical habitat” “one of the most controversial and confusing aspects of the ESA.” To date, “critical habitat” has been designated for only about 405 of listed species.
Once habitat is designated as “critical,” federal agencies may not “authorize, fund, or carry out” activities that will destroy or adversely modify the habitat. A “critical habitat” designation does not directly affect private landowners—i.e, they can conduct activities that destroy or adversely modify the habitat as long as their activities do not result in “take” of a listed species.

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