Laserfiche WebLink
<br />000291 <br /> <br />MANAGING ESA ISSUES <br /> <br />HOLLAND & HART LL' <br /> <br />established the presence of the species at issue -- including the listed razorback <br />sucker -- on the grazing aIlotments that were the subject of the biological opinion). <br /> <br />Managing the Endangered Soecies Act <br /> <br />Given the tremendous impact that ESA restrictions can have on development <br />projects, it is advisable to consider what steps a project applicant or proponent can take <br />to contribute to the ESA procedures that might affect its project. There are several key <br />points in the ESA process that afford the opportunity to avoid being "managed by" the <br />ESA machinery. Although none of them is simple or fool-proof, each represents a <br />significant opportunity to minimize the possibility that the ESA wiIl pose an <br />insurmountable obstacle to project development. This discussion is broken out by the <br />milestone stages or events in the ESA process. <br /> <br />1. Prelisting <br /> <br />Once a species is listed, the full panoply of the Act's procedural safeguards <br />becomes applicable. Depending on the circumstances, the presence (suspected or <br />confirmed) of a listed species in the vicinity of a proposed project can have a significant <br />impact, even stopping the activity in question. Even where the Act does not preclude the <br />desired activity, its application can at a minimum result in significant transaction costs. <br /> <br />· Monitor ESA Listing Petitions and Actions. Given the broad <br />reach of the ESA and the numerous pending petitions and potential listings and <br />critical habitat designations that may affect management activities, it is important <br />for project proponents not to be caught by surprise. By being involved and <br />commenting On the Section 4 listing process, resource users may be able to shape <br />the initial listing process or critical habitat designation in a way that provides for <br />further flexibility or favorable considerations at the project consultation stage. <br />Project applicants should also monitor and comment on programmatic agency <br />responses to ESA issues. <br /> <br />Apart from this type of traditional participation in regulatory development <br />activities, under certain circumstances, the opportunity may exist to avoid the listing of a <br />species altogether. One of the criteria for listing is that the species is in need of <br />protection it is not otherwise receiving. Where the species or its habitat is under the <br />control of an interested party or group of parties, however, it may be possible to develop <br />a Conservation Agreement with the Service. Under such an Agreement, the Service will <br />elect not to list a species (now or in the future) in return for commitments by the <br />proponent(s) to provide adequate species conservation measures. Although conservation <br />measures still would be required, the lengthy and potentially expensive procedural steps <br />associated with Section 7 consultation requirements or the Section 10 habitat <br />conservation planning process potentially can be avoided. <br /> <br />- 7 - <br />