Many projects require federal incidental take authority due to impacts on species listed under the federal Endangered Species Act (“ESA”). Depending upon the species, this federal take authority is obtained either from the U.S. Fish and Wildlife Service (“USFWS”) or National Marine Fisheries Service (“NMFS”). These agencies provide take authority either through a Section 7 (federal consultation) incidental take statement or Section 10 (Habitat Conservation Plan) incidental take permit. These authorizations almost always require the permittee to undertake mitigation and monitoring requirements related to the listed species or its habitat. Failure to comply with these obligations can result in the loss of take authority, which could potentially expose the permittee to federal civil and criminal liability. So how does one proceed in light of the state and local health orders related to COVID-19, limiting travel to essential functions?
The answer is easy when the activity is encompassed by the applicable health orders. (See, e.g., Advisory Memorandum on Identification of Essential Critical Infrastructure Works During COVID-19 Response [including in the “essential services” for the energy sector and electrical sector “[e]nvironmental remediation/monitoring, limited to immediate critical needs technicians”].) But what about when the activity arguably isn’t encompassed by the applicable health orders. In that situation, there may still be arguments for proceeding with the mitigation and monitoring.
For example, one might be able to argue federal preemption. Section 6 of the Endangered Species Act states that “[a]ny State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive that the exemption or permits provided for in this Act or in any regulation which implements this Act but not less restrictive than the prohibition so defined.”
Alternatively, if one would prefer to avoid the risks associated with violating a “safer at home” order, and the take authorization was derived from a Section 10 incidental take permit conditioned on taking certain actions during this time (e.g., monitoring or mitigation activity), one might be able to avoid non-compliance or civil liability by documenting an alternate approach or timeline and coordinating with the USFWS or NMFS. Depending on the situation, the agencies may characterize COVID-19 as an unforeseen circumstance. Or, the agencies may be comfortable with documenting an agreed upon alternate approach to compliance consistent with their Habitat Conservation Planning and Incidental Take Permit Processing Handbook. In that regard, another federal agency, the Environmental Protection Agency, announced that it would not be pursuing civil penalties for a permittee’s failure to follow certain monitoring and reporting requirements. (EPA Memo re COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.) While the USFWS and NMFS have yet to issue similar guidance, one would assume that these federal agencies would be amenable to a similar understanding.
Even if a similar understanding was reached, however, this would not necessarily insulate the permittee from a citizen suit under Section 11 of the ESA. While penalties are unavailable in a citizen suit, injunctive relief is a possibility. But injunctive relief requires a court to balance the equities. And, given the present state of affairs, one can easily imagine that a court would not be inclined to force individuals to undertake potentially life threatening travel for an activity that the federal government and state government have deemed non-essential.
Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...
Brooke Marcus is a natural resources lawyer focused on assisting the renewable energy sector with maintaining compliance with environmental laws. She is go-to counsel for matters involving the Endangered Species Act (ESA), the ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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