Common use of Statutory and Regulatory Requirements Clause in Contracts

Statutory and Regulatory Requirements. ‌ Federal Endangered Species Act‌ Section 9 of the ESA prohibits the “take” of any fish or wildlife species federally listed as endangered (16 U.S.C. 1538(a)(1) unless authorized under the provisions of Section 1, 4(d), or 10(a) of the ESA. Section 4 of the ESA allows USFWS to issue regulations which prohibit the take of any fish and wildlife species listed as threatened as well (16 U.S.C. 1533(d). The take prohibition was extended to the marbled murrelet when it was listed as threatened under the ESA on September 28, 1992 (57 FR 45328). “Take”, as defined by the ESA, means “to harass, harm, pursue, ▇▇▇▇, shoot, wound, kill, trap, capture, or collect a listed species, or attempt to engage in any such conduct” [ESA §3(19)]. The 1982 amendments to the ESA established a provision in Section 10 of the ESA that allows for “incidental take” of threatened and endangered species of wildlife by non-federal entities. Incidental take is defined by the ESA as take that is “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity” [50 Code of Federal Regulations (CFR) §402.02]. Sections 2, 7, and 10 of the ESA allow USFWS to approve SHAs. Section 2 of the ESA states that “encouraging the States and other interested parties, through federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the nation’s international commitments and to better safeguarding, for the benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants” [ESA §2(5)]. Section 7(a)(2) of the ESA requires all federal agencies, in consultation with USFWS, to ensure that any action “authorized, funded, or carried out” by any such agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of critical habitat. Actions of federal agencies that are not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of their designated critical habitat, but that could adversely affect the species, or result in a take, must be addressed under Section 7 of the ESA. By entering into the SHA, USFWS is using the Safe Harbor Program to further the conservation of the Nation’s wildlife. Finally, section 10(a)(1)(A) of the ESA authorizes the issuance of enhancement of survival permits to allow for “incidental take” of a listed species while conducting otherwise lawful activities. Specifically, SHAs provide regulatory assurances for nonfederal landowners who voluntarily aid in the recovery of listed species through a net conservation benefit by improving or maintaining wildlife habitat and allow such landowners to return the property to an agreed-upon baseline condition at the end of the Agreement, even if this means incidentally taking the species. Under the conditions of a Section 10 Permit issued for an approved SHA, if voluntary conservation measures conducted in accordance with the SHA increase the occupied area or numbers of a listed species, the landowner would be relieved of their liability under the ESA and be authorized to incidentally take the covered species (i.e., marbled murrelets), while conducting covered activities, above an established baseline without penalty should the covered species occur on the enrolled lands at some point in the future. National Environmental Policy Act‌ Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321, 4322(2)(c) [1970]), as amended, requires federal agencies to evaluate and disclose the effects of their proposed actions on the natural and human environment. The purpose of the NEPA process is to ensure that the potential environmental impacts of any proposed federal action are fully considered and made available for public review. The issuance of a section 10 Permit by USFWS constitutes a federal action subject to NEPA compliance and review (42 U.S.C. 4321-4347, as amended [1970]). To comply with NEPA, USFWS must conduct and publish an environmental review. This may consist of preparing an Environmental Impact Statement ((EIS); 40 CFR 1501.4 [2018])) or EA (40 CFR 1501.3 [2018]) that includes a detailed analysis of all direct, indirect and cumulative impacts to the human environment resulting from issuance of the section 10 Permit (40 CFR 1508 [1970]). In circumstances in which issuance of a Permit falls under a Categorical Exclusion (CatEx), a category of actions which do not individually or cumulatively have a significant effect on the human environment, NEPA review may be concluded with a CatEx determination rather than preparation of an EIS or EA (40 CFR 1508.4 [2018]). On July 16th, 2020, CEQ published a final rule revising the procedural regulations implementing NEPA. The updated regulations went into effect on September 14, 2020. However, because this EA was drafted prior to the effective date of these new regulations, in the interest of time and efficiency, USFWS will complete the NEPA process for this proposed action as planned under the previous CEQ regulations, per the new regulation found at 40 CFR 11506.13 (2020).