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Published: February 11, 2008
Authors:
Peter Conrad and
Richard Petershack
The Federal Endangered Species Act (Act) protects all threatened or endangered plants, animals, insects, and invertebrates (as defined in the Act) from activities that may be harmful. These protections often extend to both public and private property. Because of the potentially broad implications to private lands, any time a landowner considers any development activity they should factor in the potential impact of the Act on their undertaking.
The most significant provision of the Act on private landowners is Section 9. This section prohibits a person from "taking" an endangered animal. "Take" is broadly defined by the Fish and Wildlife Service (FWS) to include direct killing, as well as indirect killing by "significant habitat modification" where the activity "actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Thus, when an activity, such as development of a subdivision, actually adversely affects the habitat of an endangered species, the FWS may prohibit the action. For example, if an endangered animal lives on a property that will be developed, and the land preparation and construction of buildings would harm it, the FWS may prevent the property owner from continuing with the development, or it may require a modification in plans such that there will be no impact on the protected species. Ultimately, it is the landowner's responsibility to know if there is an endangered animal on their property, and to insure that development activities will not harm it.
Even if Section 9 ordinarily prohibits an activity, the FWS can issue an "incidental take" permit. In order to obtain such a permit, the landowner must submit a habitat conservation plan (HCP) to the FWS that outlines impact of the "take" as well as proposed mitigation measures. However, HCPs are expensive, invariably subject to bureaucratic red tape, and impose significant time delays. Consequently, an incidental take permit may not provide a suitable alternative in many situations.
Section 9 also covers endangered plants. However, the impact on private property is minimal because there is not a prohibition against "taking" plants on private property. Therefore, a landowner would not violate the Act if a development project harms a listed plant, as long as State law does not apply.
The other provision of the Act that could affect a private development project is Section 7, which in contrast to Section 9 only applies to government actions. It forbids federal agencies from authorizing, funding, or carrying out actions that could jeopardize any endangered species, including plants, or results in the destruction of critical habitat. Even though this section only applies to government actions, it could affect a private project that either receives federal funds, or requires a federal permit, for example federal flood insurance or a wetland fill permit. However, if the FWS grants a Section 7 approval it supersedes Section 9 prohibitions, so that any "taking" that occurs in compliance with it is not a violation of the Act.
Endangered Species Act violations have the potential to be very costly. The FWS can impose both civil and criminal penalties for knowing violations of the Act. Criminal violations may be punished with fines up to $50,000 and/or one-year imprisonment, and civil penalties are punishable by fines up to $25,000. A maximum of $1,000 can be assessed for unintentional violations. Another important part of the Act permits citizens to sue to enforce the provisions of the Act even if FWS does not elect to do so.
In addition to the federal Endangered Species Act, the State of Wisconsin also has adopted a state version. However, Wisconsin has not defined "take" in such a way as to include habitat modification. Accordingly, the State's endangered species law is much less likely to affect land development activities on private lands than the federal law.
For more information contact Mr. Petershack at 608.283.6726 or rpetershack@axley.com or Mr. Conrad at 608.260.2483 or pconrad@axley.com.
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