NOAA Fisheries Office for Law Enforcement

1
NOAA FisheriesOffice for Law Enforcement

• INTRODUCTION TO THE ENDANGERED SPECIES ACT
  Instructor James Houseman
• Office [phone]
• Jim.Houseman_at_noaa.gov

2
Potential Project Impacts

• Increase sediment yield
• Increase temperature
• Reduce streamside vegetation
• Landslides
• Impacts to fish passage
• Introduce toxic materials

3
Chinook ESUs
4
Chum ESUs
5
Steelhead ESUs
6
Coho ESUs
7
Historic Abundance of Coastal Coho
8
Reasons for the decline of salmon and steelhead
in the Northwest

• Population Growth
• Urbanization
• Industrialization
• Use of Fossil Fuels
• Dams
• Timber Harvest
• Fish Harvest

juvenile coho salmon
9
Purpose of the Endangered Species Act

• Conserve the ecosystem which endangered and
  threatened species depend.

10
PROHIBITION ON TAKE 16 U.S.C. Section 1538

• Unlawful for any person to
• Import or export any such species
• Take any such species within the United States,
  territorial seas, or high seas.
• Possess, sell, deliver, carry, transport, or ship
  by any means whatsoever
• Deliver, receive, carry, transport, or ship in
  interstate or foreign commerce
• Sell or offer to sale
• Violate any regulations pertaining to such
  species or to any threatened species or fish or
  wildlife sec. 4(d)

11
WHAT IS TAKE?

• To harass, harm, pursue, hunt, shoot, wound,
  kill, trap, capture, or collect.
• Harm significant habitat modification or
  degradation.
• Impairing essential behavior patterns, including
  breeding, spawning, rearing, migrating, feeding,
  or sheltering.

12
DEFINITION of PERSON

• Any individual, corporation, partnership, trust,
  association. Or any other private entity or any
  officer, employee, agent, department, or
  instrumentality of the Federal Government, of any
  State, municipality, or political subdivision of
  the State, or of any foreign government any
  State, municipality, or political subdivision of
  a State, or any other entity subject to the
  jurisdiction of the United States.

13
DEWATERING
14
Barrier to Fish Passage
15
Water Quality
16
Habitat Destruction
17
Unregulated In-stream Work
18
Unauthorized Flood Control
19
Side Channel Modification
20
Riparian Loss
21
Road Construction Slide
22
Water pH Toxic

• Liquid Concrete was poured into the river for
  this repair.
• This work was conducted without coffer dams to
  contain toxic liquid concrete lethal to
  salmonids.

23
Culvert Cleaning
24
Bank Hardening
25
SECTION 11 ENFORCEMENT

• Criminal, civil penalty, forfeiture actions and
  injunctive relief are all available sanctions
  under the ESA
• Defenses,
• Protection from bodily harm is a defense.
• Protection of property is not.

26
Early Coordination and CooperationKeys to Success

• Reduces Need to Revisit
• Good Biological Assessments
• Buy-in by All Agencies
• Expedited Time Frames
• Better Environmental Product
• No Late Hour Surprises

27
Without Early Coordination or Cooperation

• Slows Project Approval
• Environmental Safeguards Lacking
• Potential Lawsuits
• Delays Project Completion
• Reinitiation of Consultation

28
INCIDENTAL TAKE AUTHORIZATION

• Definition Take that is incidental to and not
  the purpose of, the carrying out of an otherwise
  lawful activity.
• Sec. 7 Incidental take statement
• Sec. 10 Incidental take permit (HCP)
• Sec. 4(d) Exemption or Limit on Take
  Prohibition
• Section 6 Cooperative agreements with States

29
LIMITS ON TAKE PROHIBITION

• Take prohibitions are not applied on
• 1. Activities conducted under an ESA Permit
• 2. Research on-going during Permit Processing
• 3. Fish/Wildlife personnel aiding stranded
  salmonids or salvaging dead salmonids for study
• 4. State harvest programs
• 5. State hatchery and genetic management
  programs
• 6. Joint Tribal/State Plans
• 7. Scientific research conducted under a state
  permit
• 8. Habitat restoration actions
• 9. Water diversion screening
• 10. Routine road maintenance in Oregon
• 11. Portland parks integrated pest management
• 12. New urban development
• 13. Washington Forest Practices

30
Emergency Consultation

• Definition of Emergency within context of ESA
  section 7 - situations involving acts of God,
  disasters, casualties, national defense or
  security emergencies, etc.

31
Emergency Repairs
Some emergency fixes may need to be redone during
in-water work window to mitigate impacts (Agency
Creek).
32
Emergency Repair Restoration
Incorporation of logs and root wads provide fish
habitat, while stabilizing bank (Agency Creek).
33
Emergency Consultation

• Agency responsibilities
• Contact the Services as soon as the emergency is
  known
• Explain the emergency
• Implement, to the degree possible, the Services
  initial recommendation
• After the emergency has ended, continue
  consultation process

• Services responsibilities
• Establish procedures how to handle emergencies
• Offer recommendations to minimize effects on
  listed species. Notify the action agency if
  jeopardy is likely
• Follow recommendations with a written document
• Do not impede response efforts
• After emergency is over, complete a BO if
  necessary

34
Thank You

• NMFS website www.nwr.noaa.gov
• Jim.Houseman_at_noaa.gov
• Office [phone]