Wildlife and Its Impact on Construction

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Wildlife and Its Impact on Construction
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Endangered Species Act

• 1966 Whooping Crane inspires Congress to pass
  Endangered Species Preservation Act to protect
  critical habitats
• 1969 Whale conservation led to Endangered Species
  Conservation Act to prohibit import of listed
  species
• 1973 Pres. Nixon backs new Endangered Species
  Act to expand categories of endangered and
  threatened species, include partial regions, make
  it illegal to take listed species.

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Legal Actions with ESA

• 1978 Supreme Court rules that Tellico Dam in
  Tennessee must be halted to protect the Snail
  Darter.
• 1978 Congress responds by establishing god
  squad to exempt certain species from protection.
• 1979 god squad rules that Snail Darter is
  exempt and Tellico Dam to be constructed
• 1980 More Snail Darters found and species was not
  in significant danger.

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Legal Action ESA continued

• 1990 Fish Wildlife Service list Spotted Owl
• ESA blamed for decline in timber industry
• 1994 Clinton Administration updates ESA due to
  concern that landowners have incentive to harm
  wildlife critical habitats.
• 2005 Critical habitats are designated at time of
  endangered species listing.

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Threatened or Endangered Species

• There are 100s of species listed in the US
• 329 in Hawaii
• 308 in California
• 117 in Alabama
• 112 in Florida
• 94 in Texas

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Examples of Endangered Species

• Florida Panther (Everglades region)
• Red-cockaded Woodpecker (old growth timber of
  Florida)
• Peregrine Falcon
• Bald Eagle

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Endangered Species
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Off the Endangered List

• Snail Darter
• Aleutian Canada Goose
• Louisiana Pearlshell Cactus
• American Alligator

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Invasion of the Unwanted

• Zebra Mussels
• Marine Borers
• Fire Ants

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Definitions

• Critical Habitat - Area occupied by a species or
  considered essential for species behavior.
• Harass Action that may cause injury or disrupt
  patterns of a species
• Harm Actions that kill or injure species.
  Includes habitat modification
• Take Is harass, harm, pursue, hunt, shoot,
  wound, kill, trap, capture, or collect endangered
  species.
• Incidental take is a permitted take of a
  species within specified requirements.

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Construction and ESA

• Oversight by U.S. Fish Wildlife Service and
  National Marine Fisheries Services
• Develop list of endangered species
• Monitor critical habitats for species
• Applies to the following scenarios
• Construction under EPAs Construction General
  Permit
• Activities funded or permitted by Federal
  agencies
• Construction that impacts a listed species or
  critical habitat

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ESA Permit

• Required when incidental take of threatened or
  endangered species.
• Burden is on owner and/or builder to determine if
  potential impact.
• FWS and NMFS assist in process
• Permit application must contain Habitat
  Conservation Plan
• Assessment of impacts
• Actions to minimize impacts
• Alternatives considered
• Additional measures required by FWS

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Step 1. Procedures for Determining Impact on
Species

• Determine if listed species are present on or
  near the project area.
• http//www.fws.gov/endangered/wildlife.html
• Contact FWS, NMFS, or State, or Tribal Heritage
  Center
• If there are listed species or critical habitats,
  the responsible party will need to do one or more
  of the following
• Conduct visual inspections to identify any listed
  species or critical habitat.
• Conduct a formal biological survey.
• Conduct an environmental assessment under the
  National Environmental Policy Act (NEPA).
• If listed species or critical habitats are
  present in the project area, the responsible
  party must look at the impacts to the species
  and/or habitat when following Steps 2 through 4.

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Step 2 Determine if Construction Activities Are
Likely to Affect Listed Species or Critical
Habitat

• Potential adverse effects from stormwater
  discharges and stormwater discharge-related
  activities include
• Hydrological. Stormwater discharges may cause
  siltation or sedimentation, or induce other
  changes in receiving waters such as temperature,
  salinity or pH.
• Habitat. Excavation, site development, grading,
  and other surface-disturbing construction
  activities may adversely affect listed species or
  their habitat.
• Toxicity. In some cases, pollutants in stormwater
  may have toxic effects on listed species.
• Assistance in determining these criteria is
  available from the Fish and Wildlife Service,
  National Marine Fisheries Service, or Natural
  Heritage Center.
• If adverse effects are not likely, then the
  responsible party may apply for coverage under
  the Construction General Permit.
• If the discharge may adversely affect listed
  species or critical habitat, then step 3 must be
  followed.

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Step 3 Determine if Measures Can Be Implemented
to Avoid Adverse Effects

• These measures may involve relatively simple
  changes to construction activities such as
• rerouting a stormwater discharge to bypass an
  area where species are located,
• relocating Best Management Practices, or
• changing the footprint of the construction
  activity.
• Contact the Fish and Wildlife Service, National
  Marine Fisheries Service to see what measures
  might be appropriate to avoid or eliminate the
  likelihood of adverse impacts to listed species
  and/or critical habitat.
• If measures are adopted to avoid or eliminate
  adverse affects then they must be enacted for the
  duration of the construction project.
• These measures must be described in the
  Stormwater Pollution Prevention Plan (SWPPP).
• If appropriate measures to avoid the likelihood
  of adverse effects are not available, follow Step
  4.

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Step 4 Determine if the Requirements of the
Construction General Permit Can Be Met

• Where adverse effects are likely, the Fish and
  Wildlife Service (FWS) and/or National Marine
  Fisheries Service (NMFS) must be contacted.
• 1. An ENDANGEREND SPECIES ACT (ESA) Consultation
  Is Performed for the Activity.
• 2. An Incidental Taking Permit is Issued for the
  Activity.
• 3. The Responsible Parties are Covered Under the
  Eligibility Certification of Another Operator for
  the Project Area.
• If a federal agency is funding (either fully or
  partially) a construction project, or if a
  federal permit (other than the Construction
  General Permit) is required for a construction
  project, the federal agency taking the action
  (e.g., funding or permitting) must fulfill the
  requirements of the Endangered Species Act (ESA).

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Obtain an Incidental Take Permit

• If the construction activity will adversely
  affect listed species or critical habitat, an
  Incidental Take Permit must be obtained.
• Components of a permit application are
• a standard application form,
• a Habitat Conservation Plan (HCP),
• an implementation agreement, and,
• a draft NEPA analysis
• The operator should coordinate with the Fish and
  Wildlife Service or NOAA-Fisheries as soon as
  possible for guidance in assembling a complete
  application package.
• Before the operator submits an application, they
  may be required to conduct biological surveys to
  determine which species and/or habitat would be
  impacted by the activities covered under the
  permit.
• The HCP should include
• An assessment of the impacts likely to result
  from the proposed taking
• Measures that will be undertaken to monitor,
  minimize, and mitigate such impacts
• The funding that will be made available to
  implement such measures and
• The procedures to deal with unforeseen or
  extraordinary circumstances
• Alternative actions to the take that have been
  analyzed and
• Additional measures that Fish and Wildlife
  Service or NOAA-Fisheries may require.

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The Penalties

• The US Fish and Wildlife Service and the National
  Marine Fisheries Service may impose
  administrative, civil, and criminal sanctions for
  failure to comply with the Endangered Species
  Act.
• Civil penalties can reach 27,500 per day per
  violation.
• Criminal violations of the Act for negligent or
  knowing violations of as much as 50,000 per
  day, 3 years' imprisonment, or both.
• A fine of as much as 250,000, 15 years in
  prison, or both, is authorized for knowing
  endangerment violations that knowingly place
  another species in imminent danger of death or
  serious bodily injury.
• Environmental Protection Agency (EPA) may impose
  administrative, civil, and criminal sanctions on
  a property owner and/or a contractor for failure
  to comply with the CWA.
• Administrative penalties can reach 157,500 and
  civil penalties can reach 32,500 per violation
  per day.
• In addition, the CWA allows private citizens to
  bring civil actions against any person for any
  alleged violation of "an effluent standard or
  limitation."

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Additional Sources of Information

• The U.S. Fish Wildlife Service web site is the
  most complete source of information on Endangered
  Species Act - listed species. This site contains
  valuable tools for landowners http//endangered.f
  ws.gov.
• The NOAA Fisheries - Office of Protected
  Resources provides the full text of the
  Endangered Species Act. It also provides
  information on marine and anadromous species as
  well as recovery plans for their listed species
  http//www.nmfs.noaa.gov/prot_res/overview/es.html
  .
• EPAs Where you live page contains links to
  state environmental agencieshttp//www.epa.gov/ep
  ahome/whereyoulive.htm.
• NatureServe is a conservation organization that
  provides the scientific information and tools
  needed to help guide effective conservation
  action. NatureServe and its network of natural
  heritage programs are the leading source for
  information about rare and endangered species and
  threatened ecosystems http//www.natureserve.org.
  
• The Construction Industry Compliance Assistance
  Center (http//www.cicacenter.org/espermits.html)
  provides resources specific to Endangered
  Species Act - listed species, including state
  requirements and contacts.
• The National Environmental Compliance Assistance
  Clearinghouse contains a search engine to help
  find compliance assistance tools, contacts, and
  EPA-sponsored programs http//www.epa.gov/clearin
  ghouse/.

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Conclusion

• All fifty states have fish and game/wildlife
  agencies that work in cooperation with U.S. Fish
  and Wildlife Service district offices with regard
  to the incidental take permitting process.
• The National Endangered Species Tool (NEST) can
  be used to find out more about the rules in a
  particular state.
• Even if it were not for the law, the moral
  obligation of us all is to preserve our wildlife,
  and do nothing that might contribute to the
  endangerment of a species. Thus, the safety
  manager should be informed about the local
  wildlife.
• If there is a known rare species of bird, animal,
  or fish in the vicinity of the construction
  project, become knowledgeable about that species.
  Know what signs indicate its presence and
  understand what measures can be taken to help
  preserve the species.

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1914
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1844
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1920
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1875
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1931
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