How to Respond to Potential Species Listings Under the Endangered Species Act Susan Combs Texas Comptroller of Public Accounts Questions and Answers Q: How does the listing of a species as threatened or endangered under the Endangered Species Act (ESA) affect me or my land? A: When a species is listed as endangered or threatened, the ESA can restrict the use of land and/or water which serves as the species’ habitat by adding regulatory hurdles and costs to otherwise lawful activities such as creating roads, building stock tanks or developing mineral interests beneath your property. A listing may also diminish property values and negatively affect military preparedness at affected installations. Please see http://texasahead.org/ texasfirst/species/pdf/Texas_response_EPA.pdf to learn more about the effects of this federal law. Q: Once a species is listed, does the ESA pose limitations and restrictions on private property? A: Yes, the ESA prohibits “take” of any endangered species by any “person.” “Take” includes harassing, harming, pursuing, shooting, wounding, killing, capturing or collecting listed species, or attempting to engage in any such conduct. Obviously, the ESA and corresponding regulations can and do impact private property owners when a species is listed by placing restrictions on activities that may result in the “take” of the species. Such restrictions may also be imposed on private industry impacting the economy. Q: Can someone stop a species from being listed? A: Stopping a species listing is not easy. First, legal options are limited as the ESA only allows legal challenges of “final” federal agency ESA listing decisions. So a legal challenge to a listing decision generally cannot occur until after the decision has already been made. Judges are generally not inclined to substitute their judgment for that of a federal agency in these types of cases. For example, in the 30 cases or so where final listing decisions have been challenged, only a handful were returned to the federal listing agency for review and of these only in 2 cases were the species removed from the endangered list. For more information on legal issues surrounding federal ESA decisions see http:// www.texasahead.org/texasfirst/conservation_plan/docs/ LegalChallenges.pdf Q: If legal challenges are difficult or limited in success, are there other options available to stop a species listing and protect the economy and private property? A: Yes. First, the ESA requires that species listings be based solely on the “best scientific and commercial data available.” Unfortunately this term is not defined which has led to species being listed with limited scientific study. It is important to add scientific rigor to the ESA and the listing process to ensure species are listed based on the best science available. So it is critical to gather and submit quality research to the listing agencies. Providing accurate science helps ensure the best science is available when determining if a species should be listed and raises the standard for data used in listing decisions. Second, the development and implementation of voluntary conservation agreements prior to a species listing, such as a Candidate Conservation Agreement with Assurances (CCAA), can preclude the need to list a species. Q: What is a CCAA? A: CCAAs are voluntary conservation agreements approved and permitted by the federal listing agency (e.g. U.S. Fish and Wildlife Service) that are implemented by non-federal property owners who agree to manage lands or waters to remove threats to candidate or proposed species. While other agreements can be made after a listing decision has occurred (see below), CCAAs are entered into before the species is listed as threatened or endangered. There are multiple benefits to participating. First, CCAAs can preclude the need to list a species as a result of the voluntary conservation efforts. However, if a species ultimately gets listed, binding assurances are provided to the non-federal property owners. If they continue to comply with the terms of their CCAA, they will not be subject to additional regulatory obligations that exceed those agreed to at the time the agreement is signed. Further, CCAAs may authorize a certain amount of “take” if the species is later listed. Q: Have CCAAs been successful in stopping a species listing? Like CCAAs, HCPs outline ways of maintaining, enhancing and protecting a given habitat type needed to protect an endangered or threatened species. HCPs usually include measures to minimize impacts and may include provisions for permanently protecting land, restoring habitat and relocating plants or animals to another area. Unless you are already participating in a voluntary CCAA, an HCP is required before an incidental “take” permit may be issued. Please see the definition of incidental take at http://texasahead.org/texasfirst/esa/glossary.php. Once listed, the taking of a species without a valid permit can result in steep fines and even the possibility of harsh criminal penalties. Q: Where is more information available about the ESA? A: Yes, the Texas Conservation Plan for the Dunes Sagebrush Lizard (which includes a pre-listing CCAA and a post-listing Habitat Conservation Plan) was a key factor in the U.S. Fish and Wildlife Service’s decision not to list the species. Please see U.S. Department of Interior press release: http://www.fws.gov/southwest/es/Documents/R2ES/NR_ for_DSL_Final_Determination_13June2012.pdf. A: It is important to understand federal environmental laws such as the ESA and how they may impact private property and industry. It is for this reason the website www.KeepingTexasFirst.org has been developed. Keeping Texas First provides background and other useful information that can be used to prepare for and respond to federal regulatory actions. Q: If a species is listed, what options are available to continue otherwise lawful activities? A: When a species is listed as endangered under the ESA, conservation agreements, such as Habitat Conservation Plans (HCPs), which are approved and permitted by the federal listing agency, can be developed and implemented to continue otherwise lawful activities and “take” a species. Scan this QR code with your favorite smartphone app to go directly to the Comptroller’s Keeping Texas First website. KeepingTexasFirst.org Economic Resources for Texas Ahead Growing and Governing Texas HOME SPECIES IN TEXAS SPECIES LISTING PROCESS SPECIES IMPACT Susan Combs Texas Comptroller of Public Accounts AIR REGULATION WATER REGULATION DATES AND DEADLINES FAQS AND RESOURCES CONTACTS Keeping Texas First Tracking the Economic Impact of Federal Action on Endangered Species, Air and Water What Texans Need to Know With the majority of the state’s land privately owned, Texas is defined by its landowners and their holdings. That’s why Texans need to know the economic impact of federal action on our most prized natural resources: our land, water, energy and even the air we breathe. The government of Texas has a thousand points of interaction with Washington, interactions that affect every part of our economy — and millions of Texans, every day. We need to make sure decisions are made with input from the people who know the state best. Read more… Species Impact Spotlight Where are they? Find details on species habitat ranges, estimated economic impact, state feedback and more for key species in Texas on the federal review list. See firsthand which areas of Texas may be impacted the most by federal review of new listings of species as endangered or for revisions of habitat areas. Tracking the Economic Impact of Federal Action on Endangered Species, Air and Water GET INVOLVED: This website KeepingTexasFirst.org provides Texans with information on the ongoing status of endangered species listing and other federal environmental actions affecting our state. All of us need to remain aware of the profound effect new federal regulations will have on landowners, businesses and communities across our state. Check back with us regularly and join the conversation. On the Map name of species goes here Stay informed Dates and Deadlines Sign-up for e-mail updates and follow us on Twitter for the latest news about how federal action may be impacting Texas’ natural resources and economic development. Bookmark our calendar to make sure you know about dates and deadlines related to federal action, comment deadlines and other key timelines. Publication #98-982 January 2014