When do I need to worry about threatened and endangered species on a project site?
The short answer is almost anytime that construction or development activities or in-stream/watershed activities may impact species listed in the U.S. Endangered Species Act (ESA). Section 9 of the ESA states that it is unlawful to "take" an endangered species; the ESA further defines "to take a species" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct." Some activities at a project site may be allowed at certain times of the year but not others, for example, when birds or fish may be nesting. Image (above top): Kirtland's warbler - threatened; Image (bottom right): Blanding's turtle - endangered
Other federal laws and regulations such as the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, as well as other state laws, may apply to specific species and project sites. In Michigan, threatened and endangered species are additionally protected under Part 365 of the Natural Resources Environmental Protection Act (NREPA, PA 451 of 1994, as amended). Some species, such as the Karner blue butterfly (Lycaeides melissa samuelis) and Kirtland's warbler (Setophaga kirtlandii), are protected under both federal and state endangered species statutes, while others like the least bittern (Ixobrychus exilis) and common loon (Gavia immer) are only protected under state statute. These three bird species are also protected under the Migratory Bird Treaty Act of 1918.
Image (left): eastern massasauga rattlesnake - threatened; Image (right): prothonotary warbler - endangered
What types of projects are required to address threatened and endangered species?
Projects that are funded, authorized, permitted, or implemented by a federal agency must demonstrate compliance with Section 7 of the ESA, which outlines requirements for "interagency cooperation." Under Section 7, any action authorized, funded, or carried out by a federal agency that may affect a listed species must first undergo a consultation with the U.S. Fish and Wildlife Service (USFWS). This may include projects that incorporate state permits or authorizations that implement federal laws or are supported by federal funds. Examples of this type of work include:
This type of consultation is intended to ensure that any action authorized, funded, or carried out by a federal agency is not likely to jeopardize the continued existence of listed species or modify a listed species' critical habitat.
Similarly, projects that involve state permits or state funding often must consider rare species. Other examples of this include a wetland (Part 303) or waterbody (Part 301) permit application.
When do I need a permit and what types of permits are there?
Section 10 of the ESA prohibits any activities that have reasonable potential for an incidental "take" unless authorized by a permit from the USFWS. There are three types of permits issued by the USFWS; which permit type is relevant for your project depends on the type of activities you're conducting and your purpose for conducting those activities.
1. Recovery and Interstate Commerce Permits -- Section 10(a)(1)(A) of the ESA
Recovery and Interstate Commerce Permits are issued for "take" activities that are intended to promote the recovery of a threatened or endangered species. Examples of activities that may require a section 10(a)(1)(A) permit include, but are not limited to, abundance surveys, genetic research, relocations, capture and marking, and telemetric monitoring. Under certain circumstances, a section 10(a)(1)(A) permit may also be required to possess tissues and/or body parts of listed species.
2. Incidental Take Permits -- Section 10(a)(1)(B) of the ESA
If you are engaged in an otherwise lawful activity where a listed species may be adversely affected and the purpose of your activity is not scientific research or enhancement of listed species, then you may need to obtain an Incidental Take Permit. Examples of activities that may require an Incidental Take Permit include construction and development activities or in-stream/watershed activities that may impact threatened and endangered species.
3. Enhancement of Survival Permits
Enhancement of Survival Permits were developed as a mechanism to promote endangered species conservation on non-federal lands and are used in conjunction with Safe Harbor Agreements or Candidate Conservation Agreements with Assurances. An Enhancement of Survival Permit, in conjunction with one of these Agreements, allows landowners to improve habitat for listed species without incurring additional restrictions if the size of the area occupied by the species increases or their number increases. Examples of activities that may require an Enhancement of Survival Permit include actions to enhance, restore, or maintain habitat (e.g., restoration through prescribed burning, restoring hydrological conditions) so that it is suitable for listed species.
For individuals wishing to conduct survey work to look for threatened or endangered species, various other state and federal permits may also be necessary. These permits carry restrictions, such as how such species must be handled and reported.
Image (left): showy orchid - threatened; Image (right): spotted turtle - endangered
Additional Elements to Consider
Several different types of work can be performed before conducting a Threatened and Endangered Species Survey that will provide information to make informed decisions going forward with the project. Some of this work can be done any time of year and provides a broad overview of the situation. This should involve a review of available records for the project area; data sources such as historical aerial photos and wetland inventory maps can be used to gain an understanding of the potential need for further work. Some additional information may also be gathered from a habitat assessment. This desktop-level review can be used to inform future project development timelines, costs, and planning.
Additional work may be required in the field to verify site and habitat conditions and potentially search for actual individuals. This aspect of the work can require the greatest amount of time. Obvious differences can be anticipated when looking for plants or rare animals. For example, surveys are generally best done when the ability to detect a rare species is greatest; this short window of time may be when a flower is in bloom or when a butterfly is actively flying about in search of a mate or a place to lay eggs. In other situations, it may be necessary to avoid surveys when an animal may be hibernating or has migrated out of the survey area. The desktop review can also be used to plan how a survey should be conducted. Survey methods may be as simple as a meander or transects through potential habitat or as technically involved as ultrasonic recording for bats.
How Can Envirologic Help?
With over 30 years of experience in Michigan and the surrounding region, Envirologic has the expertise and practical knowledge to help clients successfully meet their project goals. One of our experienced biologists can help you navigate through the process of determining whether protected species may exist on your site and, if so, how to keep your project moving forward. Envirologic can additionally help you through the permitting application process. For more information on the ecological services Envirologic can provide, please contact Project Scientist-Biologist, Brad Yocum.
Photos by Matt Tanis, Envirologic Environmental Inspector - Biologist
Brad Yocum, Biologist
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