Endangered Species and
Conservation Planning Assistance
The Endangered Species program of our office is primarily responsible for reviewing public and private projects that may affect federally listed species. The Conservation Planning Assistance program (formally Federal Activities) reviews other federal programs such as U.S. Army Corps of Engineers wetland permits and Virginia Department of Transportation projects. These programs mainly work to implement the following Federal laws (the list is not complete):
- Endangered Species Act of 1973, 87 Stat. 884, as amended; 16 U.S.C. 1531 et seq.
- Clean Water Act of 1972, 33 U.S.C. 1344
- Fish and Wildlife Coordination Act of 1958, 48 Stat.401, as amended; 16 USC 661 et seq.
- Migratory Bird Treaty Act of 1918, 40 Stat. 755; 16 U.S.C. 703-712
- Bald and Golden Eagle Protection Act of 1940, 16 U.S.C. 668-668d
- National Environmental Policy Act of 1969, 83 Stat. 852; 42 U.S.C. 4321 et seq.
- Coastal Barrier Resources Act of 1982, 96 Stat. 1653; 16 U.S.C. 3501 et seq
ENDANGERED SPECIES ACT (ESA) OVERVIEW:
Section 7 (a)(1) requires Federal agencies, in consultation with the Service, to utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered and threatened species.
Section 7 (a)(2) requires Federal agencies to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any federally listed threatened or endangered species or result in the destruction or adverse modification of designated critical habitat. In the event that a Federal agency determines that its action “may affect” a listed threatened or endangered species or designated critical habitat, the agency is required to consult with the Service regarding the degree of impact and measures available to avoid or minimize the adverse effects.
Section 9 makes it illegal for any person subject to the jurisdiction of the United States to “take” any federally listed endangered or threatened species of fish or wildlife without a special exemption. “Person” is defined under the ESA to include individuals, corporations, partnerships, trusts, associations, or any other private entity; local, state, and Federal agencies; or any other entity subject to the jurisdiction of the United States. Under the ESA, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. Harm is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavior patterns such as breeding, feeding, or sheltering. Harass is defined as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering.
Section 10 establishes an incidental take permit provision for private entities that includes the development of habitat conservation plans. This provision authorizes the Service, under some circumstances, to permit the taking of federally listed fish and wildlife if such taking is “incidental to, and not the purpose of carrying out otherwise lawful activities.” This process is also intended to be used to reduce conflicts between listed species and private development and to provide a framework that would encourage “creative partnerships” between the private sector and local, state, and Federal agencies in the interest of endangered and threatened species and habitat conservation. When approved by the Service, this regulatory procedure results in the issuance of a permit authorizing incidental take, provided such take is mitigated by appropriate conservation measures for habitat maintenance, enhancement, and protection, coincident with development.
It is important to distinguish between important habitat and Critical Habitat. Critical Habitat is federally designated and carries legal implications under the Endangered Species Act. Important habitat is habitat that a certain species needs for its survival and carries no legal implications.
The Service reviews projects that may adversely modify federally designated Critical Habitat, just as it reviews projects that may affect federally listed species. While both Federal and non-Federal actions that may affect listed species require consultation with the Service, only Federal actions that may adversely modify federally designated Critical Habitat requires consultation with the Service. However, it is important to clarify that any Federal nexus (Federal involvement) is sufficient to Federalize a proposed action. Some examples of actions with a Federal nexus are as follows:
FEDERAL AND STATE PARTNERS:
- actions on Federal land
- actions that require a Federal permit (such as a wetland permit)
- actions that require a Federal license
- actions using Federal funds
We work closely with the following State agencies, and provide you links to their websites:
US Army Corps of Engineers - Norfolk District (USACE)
Virginia Department of Game and Inland Fisheries (VDGIF)
Virginia Department of Agriculture and Consumer Services (VDACS)
Virginia Department of Conservation and Recreation, Natural Heritage Program (DCR)
Virginia Department of Environmental Quality (DEQ)
Virginia Marine Resources Commission (VMRC)
Virginia Institute of Marine Science (VIMS)