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 Oklahoma
Department of Transportation projects. These programs mainly
work to implement the following Federal laws (the list is
- 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.
- Bald and Golden Eagle Protection Act of 1940, 16 U.S.C.
- National Environmental Policy Act of 1969, 83 Stat. 852;
42 U.S.C. 4321 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:
- actions on Federal land
- actions that require a Federal permit (such as a wetland
- actions that require a Federal license
- actions using Federal funds
FEDERAL AND STATE PARTNERS: We work closely
with the following State agencies (links provided):