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If your contributors accept questions, I have a few that, because I’m not a lawyer, I have no way of researching but whose answers would be extremely useful.
1) ESA and NEPA “consulting” between applicants for Incidental Take Permits and their respective governing federal agencies have morphed into “collaborative” and even “cooperative” relationships. While I understand that this kind of “collaboration” and “cooperation” can exist between federal agencies, I don’t understand how conflicts of interest can be avoided if our environmental gatekeeper agencies are “collaborating” or “cooperating” with ITP applicants. My question: Can such “collaboration” or “cooperation” be grounds for invalidating EISs/EAs/EIRs, and force the governing agency to fulfill its obligation as a consultant only and upholding the respective environmental laws at issue?
2) When did the so-called “No Surprises” rule come into effect and under what conditions can it be legally (under ESA and NEPA) applied to Incidental Take Permits, especially when dozens of federally and state endangered species are involved in a single ITP application?
3) In researching 50-year Incidental Take Permits that the US Fish & Wildlife Service has been granting (at least 10 times in 15 years in California alone per the Federal Register; haven’t yet found such lengthy ITPs for other states), and usually in association with Habitat Conservation Plans (HCPs), when did “50-year ITPs” come into effect and what was the scientific and legal justification for consideration of such a long-term permit?
When I asked the last question at a recent NEPA/CEQA workshop in California, the two attorneys leading the workshop said, “Are you sure that wasn’t a typo and it’s really a 5-year ITP?” They had never heard of a 50-year ITP and they both work for an environmentally friendly nonprofit law firm.
Thank you very much for any clarifications any of this site’s contributors can provide.
Katy Penland
Hi Katy, thanks for your interest in our site.
You are right that ESA incidental take permits are typically negotiated between applicants and the FWS. That by itself does not provide a reason for invalidating them if they meet the ESA’s substantive standards.
The no surprises rule was first issued in 1994 as a policy, and formally promulgated as a regulation in 1998. Applicants for incidental take permits like the rule a great deal, for obvious reasons, and it greatly increased interest in the permit process. A federal district court ruled in 2007 that the No Surprises rule was not inconsistent with the ESA. It is not unlawful to apply it so long as FWS finds that permit issuance (with no surprises) will not jeopardize the covered species. It’s difficult to successfully challenge a permit on the basis of the no surprises rule when it is issued, because the court can’t really question it if the agency says that it will step in if the permit isn’t protecting the species.
There is no general time limit for the duration of incidental take permits. FWS regulations provide that their term “shall be sufficient to provide adequate assurances to the permittee to commit funding necessary for the activities authorized by the permit . . .” Fifty year, and even 99 year, permits are not rare. FWS has a database that shows the location and duration of all the permits it has issued, at http://ecos.fws.gov/conserv_plans/servletgov.doi.hcp.servlets.PlanReport
Holly, thank you very much for your reply. I appreciate your taking the time to go into such detail.
One problem: I tried the link you provided but got a 404 Error message (doesn’t recognize the “ecos/fws/gov” site), and of course trying to find a specific report on the FWS site without knowing its exact name is impossible. Any idea where I could access this database you referred to?
Again, many thanks.
Katy Penland
Woops, sorry about the non-working link. Try going here: http://ecos.fws.gov/conserv_plans/public.jsp You should find a page that will allow you to search habitat conservation plans and some other types of FWS agreements nationwide or regionally.