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Conservation Law

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Title: Conservation Law


1
Conservation Law
15 Sept 2009
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(No Transcript)
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What do this bear and conservation law have in
common?
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(click)
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Frequency
Average size
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Frequency
Average size
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Frequency
Average size
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Frequency
Average size
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Frequency
Average size
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How do we assign the Burden of Proof
?
Frequency
Average size
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What was Hardins position?
The social arrangements that produce
responsibility are arrangements that create
coercion. . . . . . I recommend mutual coercion,
mutually agreed upon by the majority of the
people affected.
12
Major U.S. Environmental Laws
  • National Environmental Policy Act (NEPA)
  • http//ceq.hss.doe.gov/nepa/nepanet.htm
  • Endangered Species Act (ESA)
  • http//www.earthjustice.org/library/reports/Citize
    ns_Guide_ESA.pdf

For complete details on any U.S. law, go to
http//www.law.cornell.edu/
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National Environmental Policy Act(NEPA, 1970)
  • Objective (NEPA 101 or 42 U.S.C. 4331(a))
  • The Congress, recognizing the profound impact of
    mans activity on the . . . natural environment,
    declares that it will . . . use all practicable
    means and measures to create and maintain
    conditions under which man and nature can exist
    in productive harmony.

16
NEPA How It Works
  • The Trigger
  • Proposals for legislation and other major
    Federal actions significantly affecting the
    quality of the . . . environment

What constitutes major Federal action?
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Categories of Major Federal Action(Council on
Environmental Quality 1508.18)
  • Plans to use Federal resources (including Federal
    lands or Federal money).
  • cattle grazing leases
  • Specific projects, including actions approved by
    permit, as well as federal and federally assisted
    activities.
  • dam construction (US Army Corps or TVA)
  • waste treatment discharge permits
  • federal grants to build waste treatment
    facilities
  • Official policies and programs.
  • TED requirement for shrimp nets

18
NEPA How It Works
  • The Result a detailed statement on
  • environmental impacts
  • unavoidable, adverse environmental effects
  • alternative actions
  • relationship between local, short-term benefits
    long-term productivity
  • irreversible/irretrievable commitments of
    resources

19
The NEPA Process
(NEPA 102)
Environmental Assessment
Major Federal Action Proposed

(CEQ 1502.4, 1508.18)
Public Comment
Categorial Exclusion?
(CEQ 1501.3, 1508.9)
sufficient?
(CEQ 1508.4)
Yes
No
Yes
No
FONSI
EIS
Done
(CEQ 1501.4)
(CEQ 1508.13)
20
The NEPA Process Creating an EIS
Notice of Availability
Notice of Intent
(CEQ 1508.22)

Public Comment
Interdisciplinary Review Team
(CEQ 1502.19, 1503.1-4)
Internal Review
(CEQ 1502.6)
Final EIS
(CEQ 1502.8-16)
Scoping Meetings
(CEQ 1501.7, 1508.25)
Record of Decision
Draft EIS
(CEQ 1505.2)
(CEQ 1502.8-16)
21
NEPA Major Benefits
  • Proactive approach to environmental regulation.
  • Explicitly addresses non-economic objectives
    (e.g. assure safe, healthful, productive, and
    esthetically and culturally pleasing
    surroundings).
  • Direct channel and funding for public
    participation.

22
NEPA Major Shortcomings
  • Addresses only Federal action.
  • Intensive focus on EIS compliance promotes
    litigation (at the expense of conservation
    activity ecological research).

23
(For the most recent NEPA activity, go to
www.nepa.gov.)
24
www.ecr.gov
(Udall Scholarship video)
25
Endangered Species Act(ESA, 1973)
http//www.fws.gov/endangered/
http//www.nmfs.noaa.gov/pr/laws/esa/
26
ESA Overview
  • Determination of endangered and/or threatened
    status
  • listing and delisting decisions (ESA 4)
  • Protective measures
  • cooperation with States (ESA 6)
  • interagency (Federal) cooperation (ESA 7)
  • prohibited acts enforcement (ESA 9, 11)
  • exceptions (ESA 10)

27
ESA How It Works
  • Criteria for listing
  • Formal listing petition must be presented to the
    Secretary of Interior 90 day review.
  • Imperiled condition must be associated with
    anthropogenic (human) effects ( 4(a)(1)).
  • Listing decisions must be based on the best
    scientific and commercial data available (
    4(b)(1)(A)).

28
1,331 currently listed species

250 petitioned listings awaiting review 100 in
wait gt10 yrs 73 in wait gt25 yrs Ecosystem-based
listing now being considered




29
ESA How It Works
  • Contents of a listing decision
  • Threatened vs. Endangered status ( 4(d))
  • Endangered In danger of extinction throughout
    all or a significant portion of its range. (
    3(6))
  • Threatened Likely to become endangered within
    the foreseeable future. ( 3(20))
  • Critical Habitat designation ( 3(5)(A)
    4(b)(6)(C))
  • Recovery Plan with objective, measurable
    criteria for delisting ( 4(f))

30
ESA How It Works
  • Contents of a listing decision
  • Threatened vs. Endangered status ( 4(d))
  • Endangered In danger of extinction throughout
    all or a significant portion of its range. (
    3(6))
  • Threatened Likely to become endangered within
    the foreseeable future. ( 3(20))
  • Critical Habitat designation ( 3(5)(A)
    4(b)(6)(C))
  • Recovery Plan with objective, measurable
    criteria for delisting ( 4(f))

31
Critical Habitat- the Rio Grande Silvery Minnow -
Water video
Hatchery video
32
ESA How It Works
  • Contents of a listing decision
  • Threatened vs. Endangered status ( 4(d))
  • Endangered In danger of extinction throughout
    all or a significant portion of its range. (
    3(6))
  • Threatened Likely to become endangered within
    the foreseeable future. ( 3(20))
  • Critical Habitat designation ( 3(5)(A)
    4(b)(6)(C))
  • Recovery Plan with objective, measurable
    criteria for delisting ( 4(f))

33
Recovery PlansYellowstone Grizzly
  • 15 adult females (avg.) with cubs-of-year, for 6
    consecutive yrs, within the recovery zone area
    (ne 38 1997-2002).
  • 16 of 18 Bear Management Units occupied by
    females w/ c-o-y, for 6 yrs, with no two adjacent
    Units unoccupied (100 occupancy 1997-2002).
  • Human-caused mortality lt4 of total population
    (2.5 mortality 1997-2002).

34
ESA How It Works
  • Protective measures
  • Cooperation with States
  • Cooperative agreements States retain authority
    in TE species habitats, so long as State
    habitat conservation plans are adequate ( 6(c)).
  • Federal funding States may receive Federal
    funding to support State conservation plans (
    6(d), (i)).
  • Federal vs. State laws State regulations can be
    more restrictive than Federal regulations, but
    not less ( 6(f)).

35
ESA How It Works
  • Protective measures
  • Interagency (Federal) Consultation
  • Consultation actions are not likely to
    jeopardize the continued existence of any
    endangered or threatened species, or result in
    the destruction or adverse modification of its
    critical habitat ( 7(a)(2)).
  • Based upon the best scientific and commercial
    data available.

36
ESA How It Works
  • Protective measures
  • Interagency (Federal) Consultation
  • Biological Assessment Action Agencys plan to
    ensure proposed actions do not jeopardize TE
    species ( 7(c)).
  • Biological Opinion USFWS / NOAA reply, with
    reasonable prudent alternatives ( 7(b)(3)(A)).
  • BiOps are legally binding (usually).
  • Open to public comment.

37
ESA How It Works
  • Protective measures
  • Prohibited Acts
  • Take to harass, harm, pursue, hunt, shoot,
    wound, kill, trap, capture, or collect, or to
    attempt to engage in any such conduct ( 3(19)).
  • Penalties ( 11)
  • Civil fines 25,000 per violation.
  • Criminal fines 50,000 per violation, and/or
    1 year imprisonment.

38
ESA How It Works
  • Protective measures
  • Exceptions ( 10(a))
  • Scientific research artificial propagation.
  • Incidental take (permits).
  • Undue economic hardship.

39
ESA Major Benefits
  • Assigns intrinsic value to species.
  • Comprehensive coverage (Federal, State, local
    jurisdictions).
  • Economic costs of conservation are irrelevant
    (but see 7(h) cost-benefit).
  • Recognized as an international conservation model.

40
ESA Major Shortcomings
  • Species-specific.
  • Reactive, rather than proactive (i.e., only
    applies to imperiled species).
  • Shoot, shovel, shut-up mentality.
  • Extreme frequency of litigation is
    counterproductive.
  • All ESA procedures are subject to judicial review
    ( 7(n), 11(g)).
  • Courts may reimburse private litigation fees.

41
Alternatives to Litigation
  • Habitat Conservation Plans
  • Safe Harbor Agreements
  • Memoranda of Understanding/Agreement
  • ----------------------------------------
    --------------------------------------------------
    ---------
  • All are Private-Federal partnerships
  • All permit incidental take in exchange for
    habitat conservation
  • All provide no surprises assurances

42
Safe Harbor Agreements
(click)
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Memoranda of Understanding
The Robust Redhorse Conservation Committee
44
Reading Assignments
  • A Citizens Guide to the NEPA
  • Citizens Guide to the Endangered Species Act
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