ESA, Mitigation, & New IMSupporting Text

Evan Myers Wildlife Biologist

• Overview of ESA

• Mitigation

• Instruction Memorandum IM-2018-093

• IM impact on Projects

Endangered Species Act• Federal ESA – signed in 1973

• Administered by the National Marine Fisheries Service (marine wildlife and fish) and Fish and Wildlife Service (FWS) (terrestrial and freshwater organisms)

• Enacted to protect and recover plant and animal species and the ecosystems upon which they depend

Clark County Threatened, Endangered, and Candidate Species

• Southwestern willow flycatcher (E, CH)• Yuma clapper (Ridgway’s) rail (E)• Yellow-billed cuckoo (T)• Moapa dace (E)• Pahrump poolfish (E)• Virgin River chub (E, CH)• Woundfin (E, CH)• Mojave desert tortoise (T, CH)

8Species

Nye County Threatened, Endangered, and Candidate Species• Southwestern willow flycatcher (E, CH)• Yuma clapper (Ridgway’s) rail (E)• Yellow-billed cuckoo (T)• Ash Meadows naucorid (T, CH)• 2 Ash Meadows fish (E, CH)• Devil’s Hole pupfish (E)• Warm Springs pupfish (E)• Amargosa niterwort (E, CH)• 5 Ash Meadows plants (T, CH)• Spring-loving centaury plant (T, CH)• Mojave desert tortoise (T, CH)

16 Species

BLM is required to:

• Work toward conservation with the goal of recovery and delisting

• Consult with FWS on projects and actions which may affect a listed species /critical habitat

Programmatic Biological Opinions• BLM consulted with FWS for cumulative project impacts to

listed species and received programmatic BOs:• BLM SNDO • Red Rock Canyon NCA • Sloan Canyon NCA

• Value of a PBO• Combines multiple projects and project types into one

Section 7 Consultation with FWS• Allows BLM to evaluate and approve smaller projects

• Individual Project Acreage Limit• Combined Acreage Limit

• Terms and Conditions are already agreed upon• Process much faster than individual project

consultation

Programmatic Biological Opinion

• Programmatic BOs cover a large group of actions:• Land disposal (land transfer only)• R&PP leases• Rights-of-way• Mining• Special recreation permits• Fire management

• Does not include renewable energy or multi-state actions

Terms and Conditions• BO terms and conditions for projects

• Authorized DT biologist and/or monitor• Education program• Clearance surveys/fencing• Litter control • Compliance and reporting requirements• Project completion reports• Tortoise take report (handling, penning burrows,

injury/death)• Immediately report any injuries or mortalities to BLM,

and FWS, and NDOW • Section 7 payment fee form

Mitigation Prior to IM• Tortoise habitat disturbance requires mitigation fees prior

to any disturbance:

• $885 per acre until March 1, 2019

• Critical habitat is $885 per acre times a multiplier (up to 6 times based on habitat and project characteristics)

• Mitigation fees go to fund desert tortoise recovery actions

What mitigation fees go toward

Habitat AcquisitionHabitat Enhancement

Population Enhancement Education

Research StudiesMonitoring

IM-2018-093 Compensatory Mitigation

• July 24, 2018, IM Issued

• Addresses Offsite Compensatory Mitigation

IM-2018-093 Compensatory Mitigation

• States BLM must not require Compensatory Mitigation

• Will consider Voluntary Compensatory Mitigation, under limited circumstances

• BLM will not accept monetary payment to mitigate the impacts of a proposed action

IM-2018-093 Compensatory Mitigation

– “In no circumstance may BLM agree to accept a monetary contribution for the implementation of compensatory mitigation.”

Out of Valley

Out of Valley• Project Applications with No New Disturbance

• Previously disturbed areas• Renewal of Right of Way• Land Disposal (land transfer only, disturbance

addressed in Sect 10 permit)– Applications being processed– NEPA Process being conducted

• Project Applications with New Disturbance– Applications being processed– NEPA Process on Hold

• Waiting for Clarification on the process of Section 7 Fees agreed to in the PBO

– Potential 3rd Party to collect and administer these fees

In Valley

In Valley

• Project Applications with No New Disturbance– Applications being processed– NEPA Process being conducted

• Project Applications with New Disturbance– Applications being processed– NEPA Process being conducted

• Mitigation fees have been temporarily suspended (approved by FWS)

Prior Approved Projects

• Projects approved before July 24, 2018, that have not yet paid the mitigation fee can now pay those fees

– BLM NV Acting State Director signed memorandum allowing fees to be accepted and deposited in BLM Section 7 account

– Provides a path for a Notice To Proceed

Summary

• New Projects with No New disturbance are moving forward

• All “In Valley” Projects moving forward • Including those with new disturbance

Summary

• New Projects “Out of Valley” with New disturbance are on hold

• Looking into potential 3rd party to collect fees

• Projects approved before July 24, 2018, which have not paid the required fee can now pay their fees– BLM Acting State Director allowing for fees to be

accepted– Pathway to a Notice to Proceed provided