We help our clients comply with the following federal and state environmental laws and regulations as they pertain to protecting plants, animals, or their habitats:
FEDERAL ENVIRONMENTAL LAWS AND REGULATIONS
Endangered Species Act (7 U.S.C. § 136, 16 U.S.C. § 1531 et seq.)
Recognizing that native species of plants and wildlife are of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people,” and that some of those species were at risk of extinction, Congress passed the Endangered Species Act (ESA) in 1973. The purpose of the ESA is to protect and recover imperiled species and their habitats. Such species are listed under the ESA as endangered (at risk of extinction in all or a significant portion of their range) or threatened (likely to become endangered in the foreseeable future). The ESA prohibits take and trade of listed species, including their parts and products, except under the terms of a valid permit. Take, as defined by the ESA, means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct.” Take may include significant habitat modification or degradation if it kills or injures wildlife by significantly impairing essential behavioral patters including breeding, feeding, or sheltering. Take that is incidental to otherwise lawful activities may be permitted through Section 7 for federal actions (involving a “biological opinion” or concurrence letter) and through Section 10 for non-federal actions (involving a habitat conservation plan). The ESA also provides a framework for recovering listed species by designating critical habitat “when prudent and determinable” and developing species management plans. The ESA is administered by two federal agencies. The United States Fish and Wildlife Service is responsible for terrestrial and freshwater organisms, and the National Marine Fisheries Service is responsible for marine organisms.
Migratory Bird Treaty Act (16 U.S.C. § 703 et seq.)
The Migratory Bird Treaty Act (MBTA) was enacted in 1918 to end the commercial trade of birds and bird feathers that had decimated many local populations of wild birds by the early 20th century. The MBTA makes it unlawful to pursue, hunt, take, capture, kill, possess, sell, purchase, barter, import, export, or transport any migratory bird, or any part, nest, or egg of any such bird, except by valid permit. Permits are issued for hunting game birds, including ducks, geese, doves, and some other birds during designated seasons. Permits also may be granted for various non-commercial activities involving wild birds and some commercial activities involving captive-bred birds. Exceptions (50 CFR 21.43) to the need for a permit are made for controlling blackbirds [except tricolored blackbird (Agelaius tricolor)], cowbirds, grackles, crows, and magpies “when found committing or about to commit depredations upon ornamental or shade trees, agricultural crops, livestock, or wildlife, or when concentrated in such numbers and manner as to constitute a health hazard or other nuisance.” Exceptions are also made for controlling horned larks (Eremophila alpestris), white-crowed sparrows (Zonotrichia leucophrys), and house finches (Carpodacus mexicanus) that harm agricultural or horticultural interests in Fresno, Merced, Napa, and Sonoma Counties in California (50 CFR 21.44) and for controlling resident Canada geese (Branta canadensis) at airports and military airfields for public safety (50 CFR 21.49). The MBTA affirms or implements the commitment of the United States to international conventions with Canada (1916), Mexico (1936), Japan (1972), and Russia (1976) to protect a shared migratory bird resource. The MBTA covers more than 800 species of wild birds, including all species native to the United States and its territories. The United States Fish and Wildlife Service is responsible for enforcing the MBTA.
Bald and Golden Eagle Protection Act (16 U.S.C. § 668-668d)
Originally the Bald Eagle Protection Act, this law was enacted in 1940 to protect the species selected as a national emblem of the United States. The act was amended in 1962 to include the golden eagle. As amended, the Act prohibits take, possession, and commerce of bald and golden eagles and their parts, products, nests, or eggs, except by valid permit. Take is defined as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest, or disturb.” Disturb means agitating or bothering to a degree that causes, or is likely to cause, injury, a decrease in productivity, or nest abandonment. This law also prohibits human-induced alterations in the vicinity of previously used nest sites when eagles are not present if upon the eagle’s return it is disturbed as defined above. Take permits may be issued for conducting certain types of lawful activities such as scientific research, propagation, and Indian religious purposes. The United States Fish and Wildlife Service is responsible for enforcing this act.
Marine Mammal Protection Act (16 U.S.C. § 1361 et seq.)
Acknowledging that (1) marine mammals are resources of great international significance, (2) some species or stocks are in danger of extinction or depletion, (3) species or stocks should not be allowed to become depleted below “optimum sustainable populations”, (4) measures should be taken to replenish these species or stocks, and (5) our knowledge of the ecology and population dynamics of these animals was inadequate, Congress passed the Marine Mammal Protection Act (MMPA) in 1972. The MMPA prohibits hunting, harassing, capturing, or killing marine mammals in United States waters and by United States citizens on the high seas. It also prohibits importing marine mammals and their products. Permits may be issued for take incidental to commercial fishing, non-fishing activities, scientific research, and public display at licensed facilities such as aquaria and science centers. The National Marine Fisheries Service (which is charged with protecting whales, dolphins, porpoises, seals, and sea lions) and the United States Fish and Wildlife Service (which is responsible for walrus, manatees, otters, and polar bears) share jurisdiction in enforcing the act and permitting exceptions.
Clean Water Act (33 U.S.C. §1251 et seq.)
Congress passed the Clean Water Act (CWA) in 1972 following major amendments to the act’s precursor, the Federal Water Pollution Control Act of 1948. The purpose of the CWA is to restore and maintain the chemical, physical, and biological integrity of waters of the United States by preventing pollution, improving wastewater treatment, and maintaining wetland integrity. This law establishes the basic structure for regulating pollutant discharge and water quality standards and outlaws discharges of any pollutant from a point source into navigable waters, unless by specific permit. Section 404 of the CWA serves to protect the nation’s waters and wetlands by regulating discharge of fill material and preventing impairment of waters of the United States. Most discharges, those having minimal effects, can usually be permitted under a nationwide, regional, or state “general permit;” whereas those discharges having potentially significant impacts require an “Individual permit.” Under Section 401, all applicants for a general or individual permit must obtain State Water Quality Certification showing that the activity will comply with state water quality standards. The United States Army Corps of Engineers (USACE) has primary jurisdictional authority for enforcing the act and permitting exceptions.
National Environmental Policy Act (42 U.S.C. § 4321 et seq.)
The National Environmental Policy Act (NEPA) was enacted in 1970 in response to a growing public concern for the environment. The effects on the environment associated with the construction of the Interstate Highway System in the late 1960s galvanized that concern, as did the 1969 Santa Barbara oil spill, the largest in the nation at the time. NEPA established a national policy for environmental responsibility by requiring all federal agencies to consider (1) the environmental impacts of their actions and (2) the reasonable alternatives to those actions. The NEPA process requires that the federal agency disclose the impacts of their proposed action by preparing a Categorical Exclusion (CE), an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI), or an Environmental Impact Statement (EIS) and Record of Decision (ROD). NEPA also established the Council on Environmental Quality (CEQ), which serves to disclose environmental information, resolve environmental problems, foster intergovernmental coordination, and enhance public participation in planning and decision-making. The Environmental Protection Agency (EPA) oversees compliance with NEPA.
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.)
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, also known as Superfund, authorizes the Environmental Protection Agency (EPA) to respond to releases of hazardous substances that pose a danger to public health, welfare, and the environment. Under the law, the EPA is authorized to respond to uncontrolled and abandoned waste sites, accidents, spills, and emergencies and to force responsible parties to clean contamination and provide reimbursement to recover natural resource damages.
Oil Pollution Act (33 U.S.C. § 2701 et seq.)
The Exxon Valdez oil spill, which resulted in the release of 11 million gallons of crude oil into Prince William Sound, Alaska in 1989, impelled Congress to pass the Oil Pollution Act (OPA) of 1990. OPA improved the ability and authority of the Environmental Protection Agency (EPA) to prevent, respond to, and recover natural resource damages from catastrophic oil spills. The law established the Oil Spill Liability Trust Fund, which provides up to $1 billion per incident for response and cleanup efforts. OPA outlines a framework for contingency planning at the national and local scale and also requires facilities that pose an environmental threat to draft contingency plans. The law outlines penalties for regulatory noncompliance. The EPA publishes regulations for above ground facilities, while the Coast Guard does so for oil tankers. OPA also requires consultation with the United States Fish and Wildlife Service on developing fish and wildlife response and contingency plans and to conduct wildlife damage assessments.
Coastal Zone Management Act (16 U.S.C. § 1451 et seq.)
Congress passed the Coastal Zone Management Act (CZMA) in 1972 to “meet the challenge of continued growth in the coastal zone.” CZMA established a voluntary national program that encourages states and tribes to preserve, protect, develop, restore, and enhance natural coastal resources including wetlands, floodplains, estuaries, beaches, dunes, barrier islands, coral reefs, and dependent fish and wildlife. Financial assistance is made available to any coastal state or tribe willing to develop and implement a coastal management plan. CZMA outlines three national programs, National Coastal Zone Management Plan, National Estuarine Research Reserve System, and Coastal and Estuarine Land Conservation Programs. These programs help balance competing needs, create field laboratories, and provide funds for acquisition of threatened lands. The National Oceanic and Atmospheric Administration (NOAA) administers the CZMA.
Federal Noxious Weed Act (7 U.S.C. § 2801 et seq.)
Congress passed the Federal Noxious Weed Act (FNWA) in 1974 to control the spread of noxious weeds on federal lands. The law grants the United States Secretary of Agriculture the power to designate plants as noxious weeds; prohibit interstate and foreign commerce of noxious weeds; inspect, seize, and destroy noxious weeds; and quarantine areas to prevent the spread of noxious weeds. FNWA also requires all federal land management agencies to develop, coordinate, and fund a noxious weed management program on their lands. These agencies must also complete and implement cooperative agreements to control noxious plant species.
The Sikes Act (16 U.S.C. §670)
The Sikes Act became law in 1960. It requires the Department of Defense to develop and implement Integrated Natural Resource Management Plans (INRMPs) that provide for the conservation and enhancement of natural resources on military lands while allowing those lands to continue to meet the needs of military operations. INRMPS are prepared cooperatively with federal and state natural resource agencies and reflect the agreement of all parties concerning conservation, protection, and management of natural resources.
CALIFORNIA ENVIRONMENTAL LAWS AND REGULATIONS
California Environmental Quality Act (P.R.C. § 21000 et seq.)
The California legislature enacted the California Environmental Quality Act (CEQA) in 1970. CEQA was intended to establish a statewide policy on environmental protection that would compliment the National Environmental Policy Act, which Congressed passed earlier that same year. CEQA requires state and local agencies to publically disclose the environmental impacts of their discretionary actions before committing to them. It also requires that those agencies avoid and minimize, when feasible, any significant environmental impacts of those discretionary actions. CEQA provides a framework for evaluating and disclosing significant environmental impacts by preparing detailed documents including an Initial Study, Negative Declaration, Mitigated Negative Declaration, and/or an Environmental Impact Report. The intended goals of CEQA review are to prevent or minimize environmental damage by developing project alternatives and mitigation measures while promoting public involvement and interagency participation. The public enforces CEQA, as necessary, through litigation or the threat of litigation.
Porter-Cologne Water Quality Control Act (C.W.C. § 13000 et. sec.)
The Porter-Cologne Water Quality Control Act was established in 1969 and entrusts the State Water Resources Control Board and nine Regional Water Quality Control Boards (collectively Water Boards) with the responsibility to preserve and enhance all beneficial uses of California’s diverse waters. The Act grants the Water Boards authority to establish water quality objectives and regulate point- and non point-source pollution discharge to the State’s surface and ground waters. Under the auspices of the United States Environmental Protection Agency, the Water Boards are responsible for certifying, under Section 401 of the federal Clean Water Act, that activities affecting waters of the United States comply California water quality standards. The Porter-Cologne Water Quality Control Act addresses all “waters of the State,” which are more broadly defined than waters of the Unites States. Waters of the State include any surface water or groundwater, including saline waters, within the boundaries of the state. They include artificial as well as natural water bodies and federally jurisdictional and federally non-jurisdictional waters. The Water Boards may issue a Waste Discharge Requirement permit for projects that will affect only federally non-jurisdictional waters of the State.
Surface Mining and Reclamation Act of 1975 (P.R.C. § 2710 et seq.)
California’s Surface Mining and Reclamation Act (SMARA) of 1975 is implemented by the California Department of Conservation, Office of Mine Reclamation. The Act was established to provide the State regulatory authority over surface mining operations and develop a nexus under which environmental damage due to mining could be remediated. Specifically, the Act ensures that adverse environmental impacts resulting from surface mining operations are minimized and mined lands are reclaimed to a usable condition. The Act also encourages the production and protection of the State’s mining resources.
Native Plant Protection Act (F.G.C. § 1900 et seq.)
California’s Native Plant Protection Act (NPPA) was established in 1977 and allows the Fish and Game Commission to designate plants as rare or endangered. The NPPA prohibits take of endangered or rare native plants with certain exceptions: agricultural and nursery operations, emergencies, and after proper notification of the California Department of Fish and Wildlife, for vegetation removal from previously disturbed areas such as roads and canals. Currently, there are 64 species, subspecies, and varieties protected as Rare under the NPPA.
Natural Community Conservation Planning Act (F.G.C. § 2800 et seq.)
California’s Natural Community Conservation Planning Act (NCCPA) was established in 1991 as a voluntary, broad-based planning framework that considers the need to protect and conserve California’s wildlife and natural habitats while also allowing appropriate, reasonable economic development to occur. The NCCPA encourages collaboration of federal, state, and local governments and private entities to work together to maintain the viability of natural communities and promote a greater sensitivity of California’s critical biodiversity.
California Endangered Species Act (F.G.C. § 2050 et seq.)
The California Endangered Species Act (CESA) was enacted in 1970 in response to mounting concern about the decline of wildlife species in California. With the Act, California became the first state to prohibit taking, possessing, importing, exporting, and selling rare and endangered species. CESA even preceded the federal Endangered Species Act. In its current form, CESA protects or preserves all native species of plants and wildlife listed by the California Fish and Game Commission as threatened or endangered or as candidates for such listing. The legislation allows the State to acquire land on which to protect, enhance, and restore habitat for such plants and animals. Take is defined under CESA to mean, “hunt, pursue, catch, capture, or kill, or attempt” to do any such action. Unlike the definition of take under the federal act, the definition under CESA does not include the terms harm (i.e., indirect effects resulting from habitat modification) or harass. CESA allows for incidental take of listed and candidate species by valid permit. Authorized take must be fully mitigated. The California Department of Fish and Wildlife administers and enforced CESA.
OTHER RELEVANT SECTIONS OF THE CALIFORNIA FISH AND GAME CODE
This section pertains to streambed or channel alteration and states that an entity may not substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of any river, stream, or lake, or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream or lake. In order for a project to gain permission to work in any waterway regulated by the California Department of Fish and Wildlife (CDFW), a written notification to the CDFW is required which specifically describes the project and sufficiently outlines the anticipated extent of environmental disturbance.
This section specifically addresses impacts to birds. It states that it is unlawful to take, possess, or needlessly destroy the nest or eggs of any bird. Typically, if a qualified biologist determines that a project could impact nesting birds, avoidance and mitigation measures are recommended to reduce or eliminate potential negative impacts from project activities.
This section specifically pertains to raptors, or birds-of-prey. It states that it is unlawful to take, possess, or destroy any birds in the order Falconiformes or Stigiformes (birds-of-prey) or to take, possess, or destroy the nest or eggs of any such bird. Mitigation measures such as disturbance-free buffers are typically used to avoid project-related impacts to these species.
This section addresses “fully protected” bird species. These are species for which no take is permitted other than take for scientific research. This section states that fully protected birds or parts thereof may not be taken or possessed at any time. Exceptions include permits granted under section 2080.1 which involve take permits obtained from either the Secretary of the Interior or Secretary of Commerce; and section 2835 which involves take permits authorized under the Natural Communities Conservation Planning Act. Fully protected bird species in California include trumpeter swan (Cygnus buccinator), brown pelican (Pelicanus occidentalis californicus), California condor (Gymnogyps californianus), white-tailed kite (Elanus leucurus), southern bald eagle (Haliaeetus leucocephalus leucocephalus), golden eagle (Aquila chrysaetos), California black rail (Laterallus jamaicensis coturniculus), Ridgway’s rail (Rallus obsoletus), greater sandhill crane (Grus canadensis tabida), California least tern (Sternula antillarum browni), and American peregrine falcon (Falco peregrinus anatum).
This section addresses protections for migratory birds. It states that it is unlawful to take or possess any migratory nongame bird as designated in the Migratory Bird Treaty Act or any part of such migratory nongame bird except as provided by rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Bird Treaty Act.
This section addresses take of marine mammals, stating that it is unlawful to take any marine mammal except in accordance with provisions of the Marine Mammal Protection Act of 1972 or provisions of Title 50 of the Code of Federal Regulations or pursuant to subdivision (b) of this section. Subdivision (b) states that the Commission can assume jurisdiction over the regulation and take of marine mammals where federal laws and regulations permit. Marine mammals include the following species: sea otters, whales, dolphins, porpoises, seals, and sea lions.
This section addresses “fully protected” mammal species. These are species for which no take is permitted other than take for scientific research. This section states that fully protected mammal species or parts thereof may not be taken or possessed at any time. Exceptions are provided in section 2081.7 involving take of species resulting from impacts attributable to the implementation of the Quantification Settlement Agreement, as defined in subdivision (a) of Section 1 of Chapter 617 of the Statutes of 2002; and section 2835 involving take permits authorized under the Natural Communities Conservation Planning Act. Fully protected mammal species in California include Morro Bay kangaroo rat (Dipodomys heermanni morroensis), bighorn sheep (Ovis canadensis) (except Nelson’s bighorn sheep [O. c. nelsoni]), northern elephant seal (Mirounga angustirostris), Guadalupe fur seal (Arctocephalus townsendi), ring-tailed cat (Bassariscus astutus), Pacific right whale (Eubalaena japonica), salt-marsh harvest mouse (Reithrodontomys raviventris), southern sea otter (Enhydra lutris nereis), and wolverine (Gulo gulo).
This section addresses “fully protected” reptiles and amphibians. These are species for which no take is permitted other than take for scientific research. This section states that fully protected amphibian and reptile species or parts thereof may not be taken or possessed at any time. Exceptions are provided in section 2081.7 which involves take of species resulting from impacts attributable to the implementation of the Quantification Settlement Agreement, as defined in subdivision (a) of Section 1 of Chapter 617 of the Statutes of 2002; section 2081.9 which involves take of limestone salamander (Hydromantes brunus) resulting from California Department of Transportation’s implementation of the Ferguson Slide Permanent Restoration Project on Highway 140; and section 2835 which involves take permits authorized under the Natural Communities Conservation Planning Act. Fully protected reptile and amphibian species include: blunt-nosed leopard lizard (Gambelia sila), San Francisco garter snake (Thamnophis sirtalis tetrataenia), Santa Cruz long-toes salamander (Ambystoma macrodactylum croceum), limestone salamander, and black toad (Anaxyrus exsul).