Document N0YY9gwLYxoGgz091r1zdoaQ

To: 'aurelia_skipwith@ios.doi.gov'[aurelia_skipwith@ios.doi.gov] Cc: Sean Bell[Sean.Bell@res-group.com] From: Theresa Carroll Sent: 2018-07-30T16:41:20-04:00 Importance: Normal Subject: [EXTERNAL] FW: Skookumchuck - bald eagle mitigation Received: 2018-07-30T16:41:28-04:00 Aurelia, Thank you again for your time on Friday. Please see below for the emails that show background on the bald eagle issue we discussed. Brooke also provided clarifying notes within the text. I will also forward another email. Thanks! Theresa Theresa Carroll Director, Permitting, Americas C 510 828 3714 | O 303 439 4200 theresa.carroll@res-group.com | http://www.res-group.com res From: Wahlberg, Brooke M. Sent: Tuesday, July 03, 2018 11:00 AM To: Jeffrey Bernstein <eff.bernstein@sol.doi.gov>; Kline, Philip <philip.kline@sol.doi.gov> Cc: Theresa Carroll <Theresa.Carrojl@res-group.com>; mark ostwald@fws.gov; Brandt-Erichsen, Svend <sbrandterichsen@nossaman.com>; david leal@fws.gov; matthew stuber@fws.gov; Corinne Lytle-Bonine <clytle-bonine@chambersgroupinc.com> Subject: Skookumchuck - bald eagle mitigation Hi Jeff and Philip, As a follow-up to our call on Friday, I wanted to poll you for your availability and summarize our position as it pertains to bald eagle mitigation where bald eagles are covered under an HCP. In sum, electing to include bald eagles in an HCP is expressly allowed by regulation and directs to the BGEPA preservation standard, and the BGEPA permit rule has a set of "required determinations" in which the mitigation requirements are clear. Any HCP Handbook language that could be read to the contrary does not override the regulatory language nor the limits of the scope of the ESA. Where the HCP Handbook discusses covering unlisted species, that discussion is in the context of species that have the potential to be listed. Some of the relevant language and explanation supporting this position is provided below: The Endangered Species Act (ESA) governs actions taken involving those species that have been listed in accordance with ESA section 4 or are in the process of being considered in accordance with ESA section 4. The ESA's take prohibition does not extend beyond those categories of species. 16 U.S.C. 1538. Nor does ESA section 7 require consultation for species not listed under or in the process of being listed under ESA section 4. 16 U.S.C. 1536. The USFWS delisted the bald eagle in 2007. Therefore the bald eagle no longer falls within the jurisdiction of the ESA. The USFWS promulgated a regulation 50 CFR 22.11 that expressly allows for eagles to be covered through permits issued under the ESA. It states: A permit that covers take of bald eagles or golden eagles under 50 CFR part 17 for purposes of providing prospective or current ESA authorization constitutes a valid permit issued under this part for any take authorized under the permit issued under part 17 as long as the permittee is in full compliance with the terms and conditions of the permit issued under part 17. The provisions of part 17 that originally applied will apply for purposes of the Eagle Act authorization, except that the criterion for revocation of the permit is that the activity is incompatible with the preservation of the bald eagle or the golden eagle rather than inconsistent with the criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv). (emphasis added). The preamble to the December 16, 2016 revisions to the Eagle Rule (50 CFR 22.26) similarly addresses covering eagles under HCPs and states: " . . . in order for the Service to confer Eagle Act take coverage through the ESA section 10 permit program, ESA HCPs must meet the Eagle Act standards for permitting, including mitigation requirements." 81 Fed. Reg. 91494, 91538 (Dec. 16, 2016). [AURELIA Some additional language from the December 2016 eagle rule preamble that helps explain the differences between the ESA standard and the BGEPA standard: "The ESA and the Eagle Act have different conservation standards and purposes. While the ESA has as its bottom line that permitted take must not more than negligibly contribute to the extirpation of a species, the Service interprets the Eagle Act's preservation standard, even prior to the amendments to our regulations being made by this final rule, as intended to maintain sustainable population levels throughout the range of each species." P. 91513.] Along with the 2016 eagle rule revisions, the Service also released a population report that showed that bald eagle populations are healthy enough that compensatory mitigation would not be required to sustain their population until they reach certain thresholds (which I explain a bit further in a note flagged for you below). We understand the "Eagle Act standards for permitting" to be the "Required Determinations" laid out at 50 CFR 22.26(f), which the USFWS must make before issuing an eagle permit. These Required Determinations include: " (5) The applicant has applied all appropriate and practicable compensatory mitigation measures, when required, pursuant to paragraph (c) of this section, to compensate for remaining unavoidable." The referenced paragraph (c) clarifies that compensatory mitigation is required only in certain instances. [AURELIA one of these instances include where the permittees authorized take combined with the other authorized take within the "local area" (the local area an 86 mile radius drawn around the project) equals greater than %5 of the location area population. Our requested take is well below the 5% threshold and USFWS has given no indication that other authorized take within the local area would push us over the 5% threshold. Additionally, the other instances triggering mitigation should not be an issue here. So far, USFWS has based their position solely on the inclusion of eagles in the same permitting process as an ESA-listed species. We understand that the basis for USFWS position -- that the ESA standard should be applied to the coverage of bald eagles in an HCP -- is the following statement in their HCP Handbook: "A non-listed species covered in the HCP must be treated as if it were already listed and all conservation measures described in the HCP for that species must be fully implemented. If it is adequately addressed in the HCP, and we determine that section 10 issuance criteria have been met for the species, it is included on the incidental take permit and becomes effective if and when the species is listed." HCP Handbook p. 15-7. Note that this passage originates in a very general section related to ESA section 7. However, the final clause of the statement "becomes effective if and when the species is listed" indicates that it is intended to apply to species that are not currently listed but may become listed in the future. That is not the reason for including bald eagles within an HCP. We understand that this language is derived from a definition in 50 CFR 17.3, however, that definition was promulgated in 1998 prior to the availability of an eagle permit [and when bald eagles were listed under the ESA]. Again, this definition allowed for applicants to include and obtain coverage for species that they anticipate will be listed. This is not the case here, and a narrower regulation has since been promulgated that specifically addresses the coverage of eagles in HCPs. Another place the USFWS may point to when explaining its position is language in the eagle-specific section of the HCP Handbook (7.4.2): "Applicants can choose to include bald and golden eagles on the incidental take permit for an HCP. Doing so also confers take authorization under the BGEPA (50 CFR 22.11) without the need for a separate permit. However, when making permit decisions, FWS must consider whether the permit issuance criteria under both ESA and BGEPA will be met by the conservation measures included in the HCP." HCP Handbook p. 7-8 (emphasis added). This language does not contradict our position when read in the larger context of 50 CFR 22.11, the Eagle Rule preamble language, and the limitations of the USFWS's jurisdiction under the ESA. It simply re-emphasizes that the USFWS needs to consider two different sets of issuance criteria when evaluating an HCP where eagles are included.  The HCP Handbook is guidance and does not extend the USFWS's ESA jurisdiction beyond its statutory constraints. The USFWS cannot change the requirements of the eagle permitting regulations through its HCP Handbook. The ESA does not grant the USFWS legal authority to impose HCP requirements that are unrelated to listed species, other than species an applicant seeks to cover because they may become listed in the future. Incidental take of eagles is addressed through an HCP for administrative convenience and to improve coordination of wildlife conservation measures across programs, not out of concern that bald eagles may once again be listed in the future. We look forward to further discussion and appreciate your willingness to continue the conversation on this. Please do let us know your availability so that we can set a call and have a happy 4th. Brooke Brooke M. Wahlberg Attorney at Law NOSSAMAN LLP 816 Congress Avenue, Suite 970 Austin, TX 78701 bwahlberg@nossaman.com T 512.651.0660 F 512.651.0670 D 512.813.7941 NOSSAMAN SUBSCRIBE TO E ALERTS UP | nossaman.com PLEASE NOTE: The information in this e-mail message is confidential. It may also be attorney-client privileged and/or protected from disclosure as attorney work product. 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