Event ID: 3165700
Event Started: 1/19/2017 9:21:50 AM ET
Please stand by for realtime captions.
Hello everyone welcome to today's conservation webinar. This webinar is the sixth in the indomitable valuation theories. It is a comprehensive overview NRCS environment procedures there are a couple replays available at conservationwebinars.net. The first of these was the primer on NRCS environment so compliant and that was followed up by a second webinar entitled documenting the NRCS content environment evaluation worksheet. This particular webinar today will focus on three of our special environmental concerns. The purpose of it is to assist NRCS conservation planners and partners in the technical service providers to understand the ecological importance of these three special environment concerns. To be able to analyze and document existing conditions and the effects of planned conservation actions. To aid in compliance with environmental requirements and understand what documentation is required for the environmental evaluation worksheet.
The webinar will be presented in three parts, part one will discuss the danger and threatened species and part two, migratory bird committee act and part three bald and Golden Eagle protection act. Spoke your presenters today are Danielle Flynn the national biologist and I and again we encourage you to ask questions by typing them into the notes box and we will not be taking any verbal questions. Please ensure your address all moderators so we can ensure your question is captured. Stephanie will be recording your questions and we will take a few questions at the end of each part and then any remaining questions at the end of the entire presentation.
With that said, I will now be happy to turn it over to Danielle Flynn.
Think you Matthew. As Matthew Stead, I will provide a general overview of the provisions of endangered species act and how it works and what is required under the act and how regulations the policy we ensure compliance with it.
Before one you will see a lot of texts on slides I show and it is cluttered and it makes a dull presentation but it is a series of webinars about compliant and I want to provide you with specific language from the -- law and regulation and the implementation.
The Endangered Species Act was passed in 1973 and subsequent amendments which are significant happened and it is administered by the US Fish and Wildlife Service and 1010 and the they have the sensibility for freshwater regulatory and the responsibility of the national service are marine wildlife and wild fish. You see the slide?
Okay. Continuing. I want to say in this presentation when I refer to the service or services I am referring to these two agencies who administered endangered species act. Context Wally have Endangered Species Act? This is explained in section 2 of the act itself which lays out the findings and the purpose of the act and the reason it does not come as much of a surprise a result of economic routes and development vision live implants have been extinct and more currently in danger of extinction. This of course begs the question why should we care if species go extinct? While it is interesting to read this question we need not [Indiscernible] them on the justifications on species of fish and log off implants are Bible to the nation for a Marriott of reasons listed in the bullet.
Congress is concerned species have gone extinct or are endangered with extinction and what specifically where they hoping to achieve by enacting the Endangered Species Act? Again in section to the purpose is to conserve the ecosystem upon which button and endangered species depend put in place on the conservation and purposes to protect the fish and lava. The conventions include international migratory Bird Treaty's and international conventions concerning fisheries etc. Also note the explicit emphasis placed on ecosystem conservation. This is important as the true purpose of endangered species often times gets lost as the act implementing regulation which will get you later and it is on ecosystem focus and this is a common critique of the endangered species act.
How does the act were? It complies of 18 sections and today's talk I will focus on number seven which is interagency cooperation and associated implementing regulations. It lays out what we of the federal agency are required to do. How we will go to the presentation, I will make at least a brief mention of all six sections listed on the slide. I have covered section 2 on findings purpose and policy. Before launching into the federal agency responsibilities under section 7 I want to quickly describe how species become listed so you understand what this means. This is spelled out in section for determination of endangered species and threatened species.
When we speak of a federally listed species there are only two categories. Endangered and threatened. The endangered species or species in danger of extinction and threatened as a species likely to be endangered to [Indiscernible] and it is the same for both and it big desk and begin in a few ways.
A species can be identified and internal status assessments by one of the services which is the national Marine service and why Bob service and if the service determines the species biological status and vulnerability to threats affecting our suspicion to a listing the species is then proposed through the listing the publication of a proposed rule in the Federal Register. Public comments are so listed and a peer review is conducted and generally within 12 months if it determines the species protection of final rules are published in the Federal Register officially placing that species on the list. Or, if the service has higher listing priorities that preclude their ability to develop a proposed rule, the species becomes a candidate species and it is as such until they have had time to prepare the role.
The second way the process is through a request for petition from private citizen or organization. Upon receipt of a petition the services determine the petition to list the species as term as wanted as justifiable. If the services from the petition is not wanted in the process ends. If it is wanted the services then proceed with the correction and evaluation of additional data and available information and funding which has three possible outcomes. The enlisting stops and if listing is wanted as with internal status assessment the service prepares the proposals for publication Federal Register public comment and federal role in final the core again as of the status the listing is warranted but the development of proposed role as included by the higher listing priorities the species becomes a candidate until the proposed rule can be developed.
Candidates and proposed are two categories in addition to endangered and threatened into which species can be placed under the Endangered Species Act. Candidate species are species that are warranted but listing is precluded by higher listing priorities. Proposed species have been proposed for listing in the Federal Register but are not yet listed. Neither candidate proposed species are subject to regulatory protection these danger and in threatened species artwork it is important to understand the categories.
There is one more designation I want to cover.
When a species is proposed for listing they consider areas of habitat essential to the species conservation and if so the areas can be proposed for designation as critical habitat. Proposed critical habitat are in the Federal Register and critical habitat can be designated on public and private land but subject to regulatory protection only when federal agencies action has a potential to affect that critical habitat.
Let's move on to general responsibilities as federal agency under the act. As mentioned before these requirements are bound in section 7 interagency cooperation and there are basically three things the federal agency are required to do.
The first is to conserve listed species and their habitats. It is pretty basic. We directed to use eight of the authorities to carry a programs and support conservation and listed species and proactive conservation not simply avoiding and minimizing potential impact to the species and habitat. Often times environmental interest will point to the section of endangered species act remind agencies they have an obligation to act to pursue programs and policies and provide conservation benefit to the species not just avoid harm. It pertains to the next two requirements.
Federal agencies shall not bind or authorize an activity that is reasonably likely to directly or indirectly result in the extinction of species which is don't jeopardize continued existence of listed species or diminish the value of critical habitat necessary for the survival and recovery of listed species. Don't do anything that will result in destruction or adverse modification of critical habitat. Photo agencies are also required to consult with the service and ensure any proposed action produces no more than minimal harm to the listed species or critical habitat.
The third requirement is like the previous one accept it pertains to proposed species and proposed critical habitat rather than listed species is designated critical habitat. It requires a federal agency to confirm or conference rather than consult and later I will talk about the differences between consulting and conferencing.
In addition to these three general requirements for federal agencies you need to be aware the act contains prohibitions which apply to public and private entities. These are found in section prohibited activities and specifically prohibited is taking and the term take means to harass or harm, pursue, hunt, Shannon, wound, kill trap or collect and engage in any contact or R is is defined by regulation and you see the definition only take endangered species and of endangered species act however the prohibitions have been extended by regulation to threatened species as well. Proposed and candidate species are not subject to being prohibitions.
What are the repercussions of unauthorized take? This section 11 penalties and it is spelled out. There are civil penalties and criminal penalties which includes line or prison. This is a big deal and it is imperative we communicate revelatory consequences to the client.
Thus far we have covered the concept with in the act how they become listed and the various categories to which a species can fall and three general requirements for federal agencies under section 7 and what is prohibited and the consequences of violating those prohibitions. I will talk next about you are most interested in any federal agency what they specifically asked how to do to make these requirements and ensure compliance.
The endangered species act itself does not contain an act is simply allow passed by Congress and administrative agencies of government and implementing permission and regulation is a more specific description of what is designated as administered to the body and requires in order to implement compliance. Stepping down from regulation policies the agency's specific directions conforming to the reckoned that regulation. I appreciate the majority do not have great interest in a specific of low regulation as it intends to the law but you should at least be aware with the direction is coming from and what is legally required and what agency policy but not required by law for regulation. For reference and learning regulation in section 7 which we talked are contained in 50 CFR 402 and NRCS policy is entitled 190 part 14.22 of the general mantle -- manual.
Will we need to do. If you recall the primary responsibility is to conserve and the purpose of the act focus on specie conservation you might expect to see most of the regulatory emphasis on fulfillment of this requirement but surprisingly there's no direction contained in the regulation. We, NRCS to recognize obligation in general manual policy and we shall among other things provide for the conservation listed and candidates of species as well as did that mated proposed critical habitat and each time we provide any form of financial or technical assistance to landowners to improve habitat conditions for threatened or endangered species or addressing responsibility to conserve under the section A1 we do not document ultimately did. It is a good example we coordinate fish and wildlife and identify practices Ann Taylor application in order to provide a conservation benefit not simply avoid or minimize impact to the number of species. We have more explicit direction in both regulation and policy for the second requirement ensuring the actions do not jeopardize the continued existence of threatened and endangered species or destroy adversely modest by their habitat.
The means by which this requirement is met is through what is termed section 7 consultation and consultation is simply coordination with the services whereby effects of a proposed action are evaluated to ultimately ensure the action will not do significant harm to threaten endangered species or their habitat. Consultation can be informal or formal and informal is conversation with persons over the telephone or email exchange etc. in which federal agencies work with the services to quickly evaluate the potential effects in the habitat. With formal consultation there is a structured process and it must be followed. The consultation process, step one to determine if there is a need for formal consultation actions must be reviewed and a determination whether they action may affect a listed species are critical habitat.
Fortunately our own internal policy requires us to make effective terminations and the general manual conducted an environmental evaluation's for all assistance both technical and financial to determine the effects of all proposed actions and alternatives on federally listed species as well as species proposed for listing and candidate species designated in proposed critical habitats and not covered under the Endangered Species Act relevant to the trouble species and their habitat. It is pretty comprehensive.
We could spend a lot of time discussing what is needed to make an support a solid FX determination as well as all the complexities and nuances that confound that but we do not have time today but I want to mention a couple of basic spirit to a number of developments that should be considered and documented. First is a description of the action. What the action is for example and it may be a list and a description of the suite of conservation practices implemented to identify and address the identified resource concerns. When it will be implemented and it is just a timeline. It has an implementation schedule and it is especially important and should be included if the action is multi-phased big relocation. It is level to provide not just a site but the surrounding areas as to better consider the significance of the site for the species within a broader geographic but plant product the details about how the actual action will be accomplished in the searching and implementing each conservation practice. It is important to describe any conservation measures that will be applied as part of the action to avoid an minimize impact in particular to protect a species and habitat.
Next is the one the nation of the action area in order to determine what species may be present of a critical habitat and you want to be sure you include access routes and staging areas and stockpiling areas etc. The tricky part is the action area includes all areas that may be affected directly or indirectly. You should think of this as a geographic of any environmental change that have the potential to hurt as a result of the action. This action area is often times larger than the area quickly affected by the action. For example, in applying herbicides what is the potential for risk or is it possible for disturbance with the actual cause of sanitation issues or fish downstream. You have donated the action area and you need to consider which listed species have the potential to hurt and within the action area if there is any designated proof of habitat. Also consider the time of year when the action will be implemented in the likelihood of species are mostly for migratory and if you're unsure how to go about this your state biologist will be the most helpful person. This information is likely to incorporate into your field office technical guide and your Fish and Wildlife Service and natural marine fishery service filled office is required upon your request to provide a list of species of potentials or however, I encourage you to speak with your state biologist.
In describing habitat conditions, think in terms of adequate food and shelter and cover as well as movement or migration corridors that may be present. Describe habitat conditions be sure to do so in relation to the last stage of the species or the seasonal you -- use.
Finally describe how the action may affect each listed species or critical habitat. Effects need to be detailed relative to each species with the potential to occur in all critical habitats. Will be action affect habitat quality and wildlife movement or breeding and nesting activities? Be sure to consider beneficial effects and we will have habitat conditions improve as a result of increased cover or greater plant species diversity and also I want to make explicit mention of short-term negative impacts. There are cases particularly with habitat restoration where an action will have short-term negative effects and ultimately provide beneficial effects and habitat management of burning in use of herbicides can have short-term direct impact over the long-term result of these activities conditions the short-term impacts must be considered and finally be sure to consider both the direct and indirect effects that occur after the actions not just those associated with implementation.
Having considered all of this information, there are four possible effective terminations you may arrive at. Know that what it is there will be no impact positive or negative. It may affect beneficial effect. Been a foolish -- beneficial effect is any adverse effect. May affect not likely to adversely affect, this applies when effects are insignificant or does countable. Based on best judgment a person would not be able to meaningfully measure or evaluate insignificant effects and they do not rise to the level or expected countable affect to occur. They are probably not happen. Finally may affect likely to adversely affect and that is when species are likely to be exposed to the action or environmental consequences and respond in a negative manner.
Affect the terminations are not easy to make our technical calls based on biology and my history and habitat requirements given species and they also require consideration and knowledge of how various stressors may affect a species and again we encourage you to work with your state biologist and make these determinations and in fact I think NRCS state-level policy may affect the terminations of to the state biologist but be sure to talk with your state biologist. Even though policy requires us to make affect determinations based on all proposed actions and alternatives we are required under section 7 to consult only on NRCS action. I want to divert a moment to discuss what NRCS action is.
Under section 7, federal action is an action in which there is discretionary federal involvement of material -- control. Jelly actions of provisions upon until assistance be a contract in order for conservation practices or providing some form of payment for easement programs and we have discretion in how and when and where and why and who we provide financial assessment -- assess those assistants how the Technical Assistance is not constitute federal action and yes we had discretionary of how and when and where into him we provide the Technical Assistance however we do not have the implementation portion of the action that provide assistance to [ Indiscernible ] we do not control their action. The provision of technical assistance is not a federal action and when not required to consult on the Technical Assistance we provide.
With that said this does not absolve clients from a need to obtain the required permits for the actions they undertake without benefit of financial assistance from NRCS. That is step one in the consultation process. If there is no determination he conducted with the punning and move on. If there is a may affect beneficial or may affect not likely to adversely affect you should request a occurrence letter from the services upon your determination included in the file. You can move on. The proposed action may adversely affect the listed species formal consultation required and you proceed to the step two.
NRCS initiates formal consultation by submitting a written request to the service along with a written request to initiate the publication NRCS submits information most of all which will be obtained in the document and the effective termination. It is listed on the slide.
Step three is consult. Once you shall the services have 90 days to complete the consultation and 45 days to prepare and render what is called a biological opinion for those interested the Code of Federal Regulations further describe the services responsibilities consultations and list out requirement elements a biological opinion and I want to mention a few of those.
Everyone -- every biological opinion will include Teresa's opinion on whether the action is likely to jeopardize a continued existing species or cause a distraction or adverse habitat and it will contain an incidental take statement which authorizes the amount or extent of incidental take which would be prohibited not occurred and a biological and this is a legal authorization for incidental take to occur. Without it it becomes a violation of endangered species act. Third, the reasonable and prudent measures which are necessary to minimize incidental take and the term and conditions that must be complied with to implement those reasonable and prudent measures. Weasel and prudent measures often times prescribed things like avoidance and distance from a habitat feature or timing ever activities to avoid breeding and nesting periods and reasonable and prudent measures and terms and conditions are nondiscretionary in the MSPB here to and implemented as a proposed action. Clients need to be aware of these any regulatory consequence while adhering to those. The last thing our conservation recommendations and these are advisory only and do not carry binding legal force. The consultation cocos upon underling -- rendering should haven't open dialogue during the entire consultation process and nothing in the biological opinion should come as a surprise in fact you should ask for a courtesy review of the draft opinion.
For the third and final requirement, section 7 a four conferencing is required if an agency determines a proposed action may jeopardize a continued proposed species or resulted in adverse modification a proposed critical habitat. This is well below the threshold for consultation for listed species which may adversely affect. There is no formal process or requirement by initiation of conferencing and it takes the form of informal discussions. With the intended purpose the existing federal agencies identify the resulting to me potential conflicts early in the process. During the conference the services make advisory recommendations to minimize impact and if the agency's request in the services apply of course the formal conservation procedures we walked through can be followed and conferencing. The conferencing ends with the service rendering a conference opinion in the opinion does contain a statement but does not go into effect unless the species becomes listed because remember it cannot apply to proposed species.
This was a lot to go over and we really only scratch the surface. Please be aware the existing consultation handbooks altered by the Fish and Wildlife Service and national Marine fisheries service provide procedures for conducting consultation and conference activities under section 7 in way more detail than we covered today. That handbook you can either Google Endangered Species Act consultation handbook or by the handbook on the fish and wildlife websites.
You can see if you have not already experience section 7 conferencing process takes a lot of time and effort to complete. Again you should be aware a number of NRCS state biologist have informal and in some cases formal consultation worked with services to complete state programmatic agreements pricked these programmatic agreements contain conservation measures to be implemented in association with given conservation practices in order that implementation of those conservation practices to not adversely affect species of a habitat. It is such consultation are not needed and you can simply reference that programmatic agreement. Once again, we strongly encourage the contact of state biologist to see if your state has a programmatic agreement in place and if so how to utilize it. It would make it much easier.
Also be aware there are cases where a client may already have a permit or exemption for the incidental take that can be referenced by NRCS during conservation and it may include the need for NRCS to consult and under section 10 permits and exemptions, the services can issue permits for limited take of a listed species for scientific purposes or enhance the propagation of survival to species and this is to conduct listed species surveys or Differing of listed species for eventual reintroduction. We are more likely to encounter are the clients who are subject to enhancement of survival permits and again authorized limited take to private property owners to participate in voluntary conservation agreements program agreements [ Indiscernible - low volume ]. There are also habitat conservation plans which are another tool for listed proposal candidate species while allowing for development that will not reduce the likelihood of a survival of species in the wild. Anytime a client is subject to a permit or exemption under section 10 copy of the permit must be included in the NRCS case file and you should verify with the service any additional consultation.
That is a basic overview of our requirements under the Endangered Species Act and before handing off to Matthew I want to the you aware and highlight some of the places NRCS general manual policy actually goes beyond what is minimally required under the and -- Endangered Species Act. The listed species, the conservation recommendations identified in the biological opinion MSPB incorporated into the conservation plan under contract to the maximum extent practicable even though those organizations are discretionary, and as we covered provision of technical assistance is not a federal or NRCS action the consultation for general policy we will not provide technical assistance for an action or portion of an action that affects a federally listed species unless that his client obtained under section 10 which we just discussed.
Proposed species, again remember agencies are required to initiate conferencing of a proposed or potential to jeopardize the continued existence of a proposed species or result in the destruction or adverse modification of critical habitat. NRCS policy requires us to initiate conferencing of a proposed action may adversely affect a proposed species or proposed habitat for much lower threshold. Second, if they planned or a landowner refuses to apply recommended alternative conservation treatment that will avoid adverse effects and to the extent practicable long-term benefit to species and habitats will not provide technical or financial assistance for the action portion of the action affecting the proposed species even though [ Indiscernible - low volume ]. For both financial and technical assistance will incorporate all recommendations of the conservation opinions in the plans and specifications to the extent practicable. Finally the candidate species, for both technical assistance and NRCS action when NRCS concludes an action may adversely affect a candidate species, as proposed NRCS will recommend only alternative conservation treatments that will avoid or minimize adverse effects and to the extent practicable, provide long-term benefit to the species. Unlike proposed species the national policy is silent on whether we resend financial assistance to the client if they are unwilling to implement one of the conservation treatments. This basically becomes a state-level call and the number of states in particular those with programmatic agreements or opinions in place to address candidate species have made state-level policy that assistance and financial intake will be rescinded. Again check with state biologist to see if your state policy and while not subject to provisions of Endangered Species Act the policy also requires two considered state and tribal species with concerns. When less comment I want to make, this is important. Before NRCS undertakes any required consultation either informal or formal, conferencing or even mixed contact one of the services NRCS must obtain written consent from the client and landowner to release personally identifiable information and if consent is not in seven -- given NRCS will not proceed in providing assistance. That I will turn it back to Matthew the walk us through an example.
Think you very much then yell. I see Stephanie, we have a question. It is asking if we talk about the differences and definition of take between the migratory Bird Treaty act and the bald and Golden Eagle protection act and endangered species act. Yes, I can answer that question. We will cover those items if it is not cover to your satisfaction don't hesitate to repeat your question.
After that extensive rundown, this is where the rubber meets the road and how we evaluate what to do regarding various categories of endangered species and as you can see on your screen we have the CPA 52 form in front of you. You will notice I have condensed this form so it will fit this format on the left-hand side you will see that rose those rose 17 through content have been eliminated so we can focus on the particular aspect of the 52 burn into this discussion. What we have, the initial information with the planning steps one and two and the need for action and the objectives of the client and we also have the blocks for alternatives across the front and on the left-hand column you can see endangered species. The block is identified and this comes from -- this is where you find it on the third page of the CPA 52. This is where special and our mental concerns are located.
As we pointed out, let me back up real quick -- I want to make sure everyone understands along the bottom set of tabs are died she and fact sheets for special and our mental concerns. There are also links to these within the special environmental concern itself. As we go and walk through these guides to help folks understand how to navigate through this special environmental concern, the God sheets are set up as a decision tree and you can see for endangered species the first step in this guide sheet asked the question or protected species or habitat present in the area and what we want to do the Chatterjee behind most of the God sheets is to scope out any nonrelevant special environmental concerns and if they do not exist we don't want to spend time analyzing whether or not a particular alternative might impact them and if they are not present in the area of potential effects you will talk about this it is not the footprint of the action but it is the area affected by the action.
In this case if the answer is no we are instructed to document that on the CPA 52 providing the reasons why we are saying there are no species or habitat present. If the answer happens to be yes, this guide sheet will take you one of four places. It will take you to the federally listed species proposed species candidate species or state and tribal species. If you have a mixed bag of species, you will likely have to rent the various guide sheets or sections to come to the conclusion.
This is what documentation on the CPA 52 will look like. With no species present, As you can see we have completed steps one and two of the planning process. Step one is to identify problems and opportunities and in this case there is a desire or an opportunity to increase forage yield in diversity and increased livestock score and this has to do with calving rates in such. The client overall objective from step two is to improve range help and improve calving percent. We do not have alternatives because we're still in the inventory resource and analyze resource data steps of planning which is where we complete down here partly inventory this situation and we have looked at natural heritage database and the field office checkout or whatever your state source for endangered species list is and some states have GIS and there are various gammet's. In this case for this example I said no protected species are present in the area of potential effect and the data source to support was the field office technical guide section 2. If you recall from previous webinar, once we scope a resource concern or special environmental concern and determine it not to be relevant we are done with it for the rest of the planning process unless we plan an alternative that may cause it to raise its head again. In this case we can simply say it is not applicable from here on out or you can leave it blank. It depends on your preference.
If we answer the question yes and said we do have species present and in this case with this example we are going to use a mannerly listed species and in the benchmark condition we want to say who and what and where and why and how and when and we said there were 620 acres of sage grouse habitat in pastures three and four. Out we know we have -- now we know we have a federally listed species but we don't know if our affection -- actions will affect but we know it is present within the area of potential effect or within our planning area.
The Guide sheet guides us to section 1 which is federally listed species section and the question asked is what is the effect of the action on the endangered species? By this time we have to have alternative formulated and the choices we can say it has no effect and if it has no effect we can document that on the CPA 52 of course we have to provide reasons why we say no effect and we cannot just say no effect and leave it at that. Or we can have another choice to determine it is a may affect and it could be a beneficial effect on adverse effect or it could be we don't know. We know we can't make a no effect in the only choice left is a may affect.
If it is a no effect we document the no effect and the reason and if it is a may affect we go to step two. Step two asks the question is NRCS providing financial assistance or otherwise controlling the actions? We have two choices. To know choices. The first no choice is no we're not providing fun until assistance and the effects are purely beneficial or no, we're not providing financial assistance and there is a possibility of adverse effects. These guides direct the plan on what to do in those situations. For our example, and I kept this page in half so on this page there are also two yes answers.I think I skipped a slide.
If we answer no , we have alternatives and the alternative is to continue the current management or alternative one is brushed management or prescribed burning and prescribed grazing and alternative is brush management and prescribed burning and prescribed grazing and wildlife habitat management. We have said no, we're not providing assistance and the effects on grass for these in the no action -- I am sorry, putting no action there is no effect because there is no change from the current management in the producer does not want to without financial assistance does not want to do anything different.
Under alternative one, we determined it may affect because brush management would occur or is currently planned to collect and may disturb reading. The second alternative incorporates consideration for wildlife habitat management and Andrew this scenario we determine there is no affect the reason why there is no effect of mismanagement and prescribed burning is because we have mitigated those potentially adverse impacts so they will occur outside the breeding and nesting season or we will maintain appropriate buffers around those slots so they will not be impacted.
Now we get to the yes question of providing assistance and there are two options. Are we providing financial assistance? Yes the action will be implemented according to an existing informal consultation, biological opinion or special world. What that means is, about 25 states already have programmatic consultations they have conducted for at least some of their species and some of their practices. Many NRCS state offices, I would say probably half of those have conducted these consultations for all species in all conservation practices. Basically they are covered under a programmatic consultation period they could also be covered under a specific biological opinion or a 4D special role and as an example that would be landed reserve program in Mississippi and Louisiana and there is a special for the will for the Louisiana black bear that is a wetland preserve program easement acquired by NRCS and because of the conditions identified in the weather reserve program it is exam from taking endangered species act for if you do not have one of those in your state and we are providing financial assistance and actions cannot be modified to avoid the effect this is and we have to inform the client we must consult with wildlife service and I want to reiterate something Danielle just remind you according to policy we have to have permission, written permission to carry out initiate that consultation.
Here is an example of what that might look like documented on the CPA 52. We have the same practices, the same 620 acres of sage grass habitat and Andrew this first alternative we said it is not likely to adversely affect and the reasons why the practices are implemented according to existing programmatic consultation dated 1114 2010 and if we did not have a programmatic consultation we would say there is eight may affect and the client establish desired hayfield adjacent and that is what caused the inverse impact and this is when we determined yes there will be an adverse impact and to continue we must consult with Fish and Wildlife Service.
On the fourth page of the CPA 52, I felt this out but -- I did not fill this out but I wanted to show you where the documentation will occur under section K and any kind of consultation required it is important to document these in the outcomes of those. It would have been appropriate to say there was existing automatic consultation for the one alternative. Although there is not necessarily a need to duplicate that information, also, be sure to describe any additional mitigation measures above and beyond what are contained within the alternatives. There may be cases where you informally consult with wireless service and you may have picked up the phone and said we have a producer and we are thinking about he wants to do this and I want to check with the service to find out what experience you had with other similar type requests. Speck that is pretty much it for the endangered species and Stephanie, do we have any questions we want to address?
We have to questions. A question came from Kenny. On the Q&A guide sheet, a protected species or habitat present the habitat repair this referred to [ Indiscernible - low volume ] or both? That is a great question.
I will give you my opinion and let Danielle we end. In my opinion, I don't get concerned with designated critical habitat and the reason is, it is because of the definition of harm that stayed in wildlife service have in their relation includes adverse habitat modification. Because of that definition, the adverse impact to habitat is not designated critical habitat and it can result in Tate and -- in Tate and that is why there is no distinction. Danielle, do you have a comment?
I guess I would look at the habitat not designated and what you're trying to assess is the likelihood the species, is it currently utilized or unoccupied habitat with the likelihood it could become occupied I guess is a question I would ask myself. I would consider it and if it is not likely to become occupied I would document the reasons that is the case.
We have another question from Claudia Swanson. Where in section 1 --
I am not sure if that is section 1 or section 5. As discussed earlier I condense the form so we could see the pertinent information on a single screen and that is probably why you are not seeing the section. Let me double check. Actually, we are seeing section and because it is in the affect section that is where we describe the effects of the alternatives. I have the same scenario for part two and I will point that out to you when we get therefore migratory birds -- there for migratory birds. But continuing on. Part II's will discuss NRCS responsibility under migratory Bird Treaty act.
In 1916 series of extinction and population decline of several migratory birds species in the United States caused the United States to get into a treaty with the United Kingdom which was acting on behalf of Canada for the protection of migratory birds in the United States and Canada. Two years later Congress enacted the migratory Bird Treaty act to give effect to this convention prohibiting the taking and killing or possessing of migratory birds covered by the treaty except as permitted by regulations that were promulgated by the Secretary. and the Secretary. of Interior. The United States subsequently entered into a similar agreement with Mexico in 1936 and Japan in 1972 and the Soviet Union in 1976 which were incorporated into the original provision of the migratory Bird Treaty act. This was done in 1918 and this is one of the oldest environmental laws on the books. What was it that caused and that people's attention about this?
It was understood that early Americans considered wildlife in terms of limited or unlimited limited to eight tran8 -- [Indiscernible] agricultural labor and service in way of pest control and as a lively object for sports. Motherwort: American societies viewed as a bottomless pit for which they could [Indiscernible] and markets in cottage cheese had this bottomless pit so hunting became very popular and wildlife merchandise become available in public markets for consumption in fashion. For instance, of an restaurant menus were eager to feature foul and consumptions not limited to game birds and many sunbirds were viewed as appropriate [Indiscernible] and Robbins were served in soup while sitter waxwings and goldfinch were made into past. Also available for purchase were fashions of inks bottled and bundled but carrots in the tasting customs of fashionable women created such a demand for the killing of nongame birds and so extensive with the use of phasers as well as whole birds on women's hats, they were said at social events to resemble aviaries.
The migratory Bird Treaty act served diverse purposes. First, Congress wanted to regulate commercial and recreational hunting and especially targeting the considered act and pot hunters. A pot hunter is a person who gets profit ignoring the rules of sport and you may have in the past heard of someone taking a pot shot at something and that is where this comes from. The center of the times abysses and at the professional pot hunter in the migratory Bird Treaty act was to keep pot hunters from killing game at postseason in running the eggs of nesting birds and running the country. While the act singled out the hunter who refuse to play by the rules of the game and did not purport to regulate recreational hunters as well. There were also market hunters at the time and these were commercial hunters who exploited animals as a natural resource but for many and economic development in one of the tools of their trade as shown is called a parent can -- at Dan and it was another Linley -- it was an extremely large scan for shooting waterfowl for commercial harvesting. A single shot could kill overwater foul on the water surface. In the United States the practice of wild water by the late 1800s was a banded and we have the Lacey act of 1900 and the practice of market hunting outlawed by a series of federal laws including the migratory Bird Treaty act of 1918 and the migratory Bird Treaty act also contemplated agricultural benefits. Not only was there value in saving birds from reckless slaughter of punters but there was also value in keeping birds alive to do what they did well which was eight crop damaging insects. Congress took notice of the loss and proclaimed these protected birds and families -- finally Congress recognize the value of migratory birds.
Prohibitions of the migratory bird treaty act is a crime to take a migratory bird or except as authorized by the act or by permit and they migratory Bird Treaty act is a criminal statute in one section of the act makes it unlawful to kill or take a migratory bird or nest or egg except as permitted by the regulation per in less permitted by regulation it is unlawful at any time by any means in any manner to pursue, parent, take, capture, kill, attempt to do those and possess or sale or purchase or deliver or export or import or transport or carry overseas or any migratory bird or a natural product manufactured or not, this is also the law that makes it unlawful to hunt migratory birds over bait. If you are a big death hunter or waterfowl that is where the regulation for that prohibition comes from.
Persons found in violation of the migratory bird treaty act can be arrested without they want in charge of misdemeanor carrying $1500 maximum fine or six months of maximum jail time period if they commit knowingly it is a $2000 fine and two-year term in jail. That is the background.
What are the list of birds protected? There are some 800+ species protected in the list, there is a list and published in the Federal Register in 50 CFR 10.13. The list also authorizes the Secretary. of Interior to determine when and to what extent the hunting and taking and taking position as well as adopting regular agents and that is all we have regulations on the and waterfowl because the service determines what level) can be harvested each year. Examples of common birds not covered, and the list is about, I don't know there may be 100 birds on the list that are not covered, but here are the main ones that are generally thought of. They include European sterling, house sparrow, pidgin, any resident game bird such as Turkey's and Quail they are not covered under the treaty act.
Permits are available for taking of intentional taking of migratory birds. Where the action is actually to take the bird, this may be necessary where you have agricultural pests and I know in some cases in the South where there all, rants that differ date on aquatic facilities, there are instances where you have [Indiscernible] of various sorts and establish an urban areas they become a human health and safety concern and for scientific collection.
As far as habitat goes, migratory bird to the act prohibits take which means it is unlawful to take a bird but habitat is not covered unless it involves totality of birds and nests and eggs or parts thereof per --.
As far as unintentional take, there is currently no authorization to permit unintentional take. Anyone who causes the death of a migratory bird is technically in violation of the act. If you are driving home today and drive home from work, if you hear a migratory bird and kill it, technically you are in violation of the migratory Bird Treaty act and subject to prosecution. It is ridiculous as that may sound, it happens all the time.
Under the scope of the migratory Bird Treaty act take and kill prohibitions, as previously described, the act makes it unlawful to take a migratory bird basically under any circumstances. The Fish and Wildlife Service rolled the pond take as pursue their hand or trapper capture or collect and the definition clearly covers activity against wildlife such as hunting or killing of migratory birds without a permit. The Fish and Wildlife Service developed regulation for hunting and permit of intentional take but not an intended take. The question is, do the terms take and kill beyond while Bob Jerry Watson of activities that may inadvertently cause the death of a migratory bird? Such as operation of a oral and gas facility construction and operation of wind turbines and telecommunication towers or commercial for street activities or agriculture's and operation of automobiles and airports. If so, how far did the prohibitions go? Unfortunately there is no clear answer among the cords and the law varies circuit by circuit. What we will do next is take a look at a sampling of court cases in the outcomes of those court cases.
It is about the U.S. Navy LiveWire training. On a small uninhabited island in the Pacific Ocean known as [Indiscernible] this is located 150 miles north of Guam and the US Pacific fleet conducted live fire training on this island. In addition to the space for the island and provides sufficient room for many different profiles which is needed by the Navy. During the peak of the Vietnam War operation, they were delivering as much as 22 tons of warheads of my on this island. Justice sued the Navy for temporary restraining order saying the Navy was not compliant with migratory Bird Treaty act although they did comply with other laws and as a result the law was introduced by Congress to amend the migratory Bird Treaty act to make it lawful for the Department of Defense to kill migratory birds during military readiness activity. The Navy got an exception and it is doubtful we will see an exception anytime soon.
In the next case, this is a recent case and it happened in North Dakota and it was United States versus brickle Molin gas -- brickle wall and gas and the expansion for the interpretation of criminal activity under the act between intentional activity criminalized by statute and lawful activities that incidentally resulted in death of a migratory bird was the central to the court's decision. In this case the court held the government interpretation would be to observe results by criminalized everyday behavior and citing statistics from the Fish and Wildlife Service that identified the make best major source of bird death and to be consistent with the government driving a car or constructing buildings and flying airplanes and farming and electricity and when turbines and any other everyday other lawful activities.
Another case in Colorado was moving like electric -- moon lake electric who sued the division of wildlife for illegally killing rafters. Moon Lake was placed on probation for three years to retrofit utility lines and also pay $100,000 in fines and restitution. In this case midlake failed to respond to the request with power structures and killed at least 17 rafters in the old failed in Colorado and then Lake pleaded guilty to three misdemeanor charges violating the bald and Golden Eagle under the migratory Bird Treaty act. This came after the company and successfully argued prohibition against killing birds and they referred to illegal hunting but did not apply to unintentional death caused by contact with power lines. Here we see a picture of some of the cords saying unintentional is a violation and other cases it is not. In this case, just to be brief about this, Corbin farm versus US in this case the scenario epic later, -- [Indiscernible] and they land owner for all and dotted -- were indicted for the migratory Treaty act for application on enough I'll fulfilled which killed more than 1000 American widgeon's and in this case they were also found guilty of violating the FIFRA and they did not apply the pesticide according to directions. This is basically a case of not following rules of neglect.
In a very similar case, this was an Idaho and this case began when Ronald Rawlins applied an herbicide and again this was [Indiscernible] 250 acres of seed L4-5 in the Westlake island of the river between Oregon and Idaho and a flock of geese landed on his field and died from the ingestion of the pesticide. A magistrate issued a memorandum the defendant was the of violating the migratory Bird Treaty act even though the defendant used [Indiscernible] on this field in the past and never experience problems with birds and other farmers in the area could not recall any prior incidents where large numbers of birds had been killed following pesticide application. The pesticide had been used by the farming community in the area for a number of years without major incident and the defendant did not apply the pesticide and eight reckless manner. He applied the pesticide in appropriate quantities in time and the court implied there was no effective way to keep the geese off the field. In this case, the court declared the farmers have the right to know what conduct is considered criminal especially will conduct consent of forming process carried out in the committee and lobby const that -- the medical Sunday they have to be drafted with a result degree of certainty and in this case the court reversed a magistrate decision and all charges against Mr. Wallin's were dropped. Basically, there is no regulation for incidental take and why Bob service and the courts are all over the place.
What do we do? I believe I have identified common denominator's that relieve liability from the migratory Bird Treaty act. Here is my short list. The first one is used common sense. We have to understand the surroundings and affected resources. This is things accomplish in steps three and four of the planning process and we should understand there may be migratory birds in the area and we need to consider and be aware of the potential for impact to migratory birds. We need to understand how that ecosystem is functioning. We need to accurately identify and analyze the impacts and risks of various activities whether it is prescribed or brush management or herbicide application or whatever it may be. We need to be creative and try to identify appropriate mitigation. For migratory birds, the primary mitigated strategy is timing. It may be a time of day or time of year. We can avoid the nesting season or apply the recommended practice in the town of the year when the birds are somewhere else. We run into trouble in states like Florida we have 360 degree [Indiscernible] and you have to be creative in some cases. The key thing is to exercise due diligence. You can show you consider these factors and you made an effort to avoid impact or migratory bird I think that provides a level of certainty and will help insulate our clientele legal entanglements.
As we move forward into documentation of the CPA 52, again you can see , we have on the lower tab a God sheet -- guide sheet for migratory birds and the bald and Golden Eagle are combined in the same sheet.
As to the previous question, you will note we are showing section I of the form. This is where the migratory birds and bald and Golden Eagle in Burma to deterrent resides on page 3.
As we go through the guide sheet, the first question asked, could the action result in a of a migratory bird nest or egg? We provide you with again the definition of take. If the answer is no, let's say we are conducting activity that has the potential to affect the bird and we can document that on the child to 52 and if the answer's yes we proceed to step two.
Step to ask if it is the purpose of the action trenchantly take. If you recall there are permits available for actions whose purpose is to take a migratory bird. If it is indeed the purpose to take a bird we can directly client to obtain a permit from official while Bob service and document that accordingly on the turn to 52. If it is not intend to take we go to step three. Step three asked have we mitigated to the extent practicable the adverse effects on migratory birds? If we have not, we have to go back and identify or exhaust all mitigation options. If the answer is yes, we document that on the CPA D2 including the reasons why and proceed with planning. Here is an example of what the CPA D2 may look like. In this case we have the same scenario as we did for endangered species in the same client objectives and the same need for action and the same initial alternative. On the benchmark condition we document we had 1575 acres of grassland bird habitat and pastors three and four and five and for the no action alternative which is continue current management, continuous grazing with no brush management and there will be a long-term decline in grassland bird species as the brush encroaches. Under the alternative one, we made a determination there will be no take of migratory birds due to the timing and method of implementation. It says seek mitigation. As we get to the next page on the CPA 52 , the mitigation identified is annual patch burns and brush management will be scheduled outside the nesting season.
That concludes this part. Stephanie, if we have additional questions, we can pose those at this time.
We have one question from Jackie. At the end of the section, how does NRCS [ Indiscernible - low volume ] affect state listed species are expected that sounds like ESA.Danielle, do you want to take that?
Well, basically in the policy we are to address state listed species much the same way we address candidate species. If your state has an equivalent or corollary to the endangered species act you want to adhere to that. I guess I would point you to the general policy manual on candidates state and tribal species. Matthew?
Yes, I would add our policy only addresses state and tribal species where they are covered by state or tribal law or regulation. There is a number of states out there that have a list of state species but they have no enforcement or no permit or no regulatory requirements associated with the species. And that case, we would not be bound to consider impacts to the state listed species. Where they are regulated, our obligation is to consult with the state Fish and game folks and incorporate their recommendations and our policy says if the producer is not willing to incorporate those recommendations, we can no longer provide that producer assistance regarding the endangered species. The principle theme behind that strategy is we do not want to be partied to a violation of a state law and we do not want our clientele to be liable for violation of a state law. That is word that thinking behind the policy on state and listed species and trouble species comes from.
We are on the home stretch.
There is one more question. Please restate how to [ Indiscernible - low volume ]
It may or may not. Some courts have ruled force activities, because they are not intentional take, are not taking of migratory birds. I think the idea is try to schedule forest harvest activities outside of nesting season to avoid that take and identify that mitigation and where you can do that can reduce -- you are technically still in violation of the act but you will not likely be prosecuted the Kaz you have made a diligent effort to avoid that take. I hope that answers your question but if not far one back at me again.
There is a question from Susan. Are using NRCS cannot recommend any action such as mechanical brush management except outside local nesting field?
No, Susan, I am not saying that at all. We have to make an effort to identify any appropriate mitigation. Let's say we can't do it and there is some reason why we cannot do it outside the nesting season, we may want to do half one year and half another year or some other mitigation strategy. It is not that we are required to mitigate but we are required to explore mitigation and where it is appropriate to incorporate and where we can incorporate and we should do that to the maximum extent practicable.
There are no other questions at this time.
Thank you, Stephanie. We are renting long and we are almost done so I will move forward. The final section is on the bald and Golden Eagle protection act.
Bald and Golden Eagles continue to be protected by this act even though they have been delisted from the endangered species act. This act was enacted in 1940. Way before endangered species act and amended several times since then and prohibits anyone without a permit issued by the service from taking bald eagles including parts or nest or egg and the act provides criminal penalties for persons who take or possess or sell or purchase or border blob blob blob the violation and in this case can result from $100,000 per person or $200,000 for an organization. Imprisonment for one year or both for the first offense and penalties increase substantially for additional offenses and a second violation of this act is a felony. All three of these acts have pretty hefty criminal and civil penalties.
Again I want to remind you as in the case of Corbin Farm services, we briefly reviewed when someone sues over one of these violations they are not going to sue the client. They will see the client and the operator and they will sue NRCS and the individual person that provided that recommendation. You can be held personally liable for any action you recommend as a federal employee with a result intake.
The definition of take for bald and go-go -- Golden Eagle act includes personal -- pursue, should call shoot at, pleasant, wound, QO, capture, trap, collect, the list or disturbed which is the most significant difference Part B start is defined as to agitate or bother a bald or Golden eagle to a degree that causes or likely to cause injury, decrease in productivity by substantially interfering with normal breeding feeding and sheltering and nest Avandamet -- abandonment by interfering with breeding or feeding or sheltering. The bar for take what bald and goading -- Golden Eagle is significantly more than the other two categories.
As far as bald and Golden eagle habitat, in addition to the immediate impact disturbed also covers impacts that result from human induced alterations initiated around a previously used nest and during a time when the Eagles are not present and if upon the Eagles return any alteration to agitate or bother the Eagle to a degree that interferes with breeding or feeding or sheltering or injury or nest abandonment, that will result in a take. A little research I did on this and preparation for this webinar is the statute of limitations on eagle nest is about five years. The Fish and Wildlife Service is not going to be interested in issuing a permit unless they nest have been abandoned for a long period of time. As far as permits go, the primary permit NRCS may associated with would be a take permit 22.26 which is not associated with a purposeful take but otherwise a lawful activity. It is like incidental take associated with migratory bird and Treaty act.
There is this permit only for take and it cannot be avoided and the permittees must avoid and minimize to maximum degree practicable the adverse effects and covers disturbance and incidental lethal take.
There are also take permits for nests and these permits can be issued under for basic scenarios where there is safety or emergencies to people or Eagles and general health and safety to restore operability of human made structure or any reason if there is some net benefit to the Eagle. Again only an active mass can be removed unless it is a safety or emergency issue per
Here we are again completing the trial to. We note we have a tab for bald and Golden Eagle guide sheet on the lower part of the form. Again, this guide sheet is combined with a migratory Bird Treaty act. As we go to the guide sheet, it basically the first question is will the proposed action take a bald or Golden eagle? Remember this definition includes disturbance. If there are no bald and Golden Eagles around you can document that fact and if there is a potential to disturb an eagle or if there is an eagle nest on site we will go to step two. Step two asks the question can the action be modified to avoid the adverse effect. It refers you to the bald and Golden Eagle management guidelines for these were developed by Fish and Wildlife Service. If we cannot modify the action the field planner is directed to contact the state biologist and work with the client in the US Fish and Wildlife Service to determine if there is a permit available for that action. If the action can be modified, we would go back and repeat step one. It asks the question is there a potential for take. If we can eliminate that potential for take, we could move forward.
Taking a look, this is an expert from -- exit from the balding Eagle got on and they break this down by region of the US and you can see this is for the southeastern region and the only reason I chose this one is because it was on top of the chart and I could clip it out real cleanly. They divided it down into laugh stage activities and they have handling and rearing and [Indiscernible] of young. If you can see the timeline, when these things occur in the southeast it is very last very -- very for different regions of the country.
Here is what the penalty looks like under this scenario and the client objective is to manage 340 acre woodland for wildlife habitat and income production for timber. The need for action is to control stocking density and increase understory vegetation. We let down in the special environmental concern inventory and identify and active bald eagle nest in the northwest portion of the track and the no action alternative is to continue with current management other than fire suppression as the only activity that would occur. Under the action alternative we have forest improvement and installation of a firebreak and prescribed burning and open wide love -- wildlife habitat management. As we look to the effects of the action of no action it was determined we have no effect because no actions are taken other than fire suppression. Under the action alternative we determined no effect because operations enable mentation of the practices are compliant with the national bald Eagle and Golden Eagle management guidelines. It directs us to mitigation. As we look at mitigation, we document the operation and the prescribed buyer would occur after June 1 and there is an eighth of a mile harvest buffer around the Eagle nest. Again, with the bald and Golden Eagle management guidelines, a lot of the mitigation strategies are timing and/or deferred distances. May have an a or a 16th of a mile for various activities.
Back to the first question. This is a comparison of the take definitions for the three topics of the day. You can see for endangered species act the standouts are harm and her laugh which is another question -- harass and another question that relates to adverse modification of habitat. For the migratory Bird Treaty act it is pretty cut and dry. For the bald and Golden Eagle protection act, it the disturbance is standing out in the definition of take. That will conclude the webinar today. Stephanie, if we have additional questions, we will be happy to take those now.
I would like to point out I promised Robert O'Toole photography I would give him credit for his amazing photo and he allowed us to use for this webinar. If you need additional information about any of these topics you can contact Danielle Flynn, myself or entrée to Barney and again this webinar is being recorded and it will be available in about a week or so on conservationwebinars.net..
We have no questions at this point.
At this point, with no questions I would like to express my appreciation to Danielle for conducting her part of this webinar. A great job, Danielle. I think we had about 230 some odd participants and I appreciate your attendance. We will take the month off for December and the next webinar is likely going to cover additional special environmental concerns and you can keep your ears open for that. That will be available mid-January. With that, I will conclude this webinar and wish everyone a great day. Thank you.
[ Event Concluded ]