Common use of Endangered Species Act Clause in Contracts

Endangered Species Act. ‌ The ESA (16 USC 1531-1543) has strict permit requirements for the handling of threatened and endangered species (listed species). Permitting requirements apply (with a few exceptions) for any species listed as threatened or endangered. A Migratory Bird Rehabilitation Permit (see above) authorizes the recovery, temporary possession, transport, and rehabilitation of oiled threatened and endangered species of migratory birds with no additional ESA permits required. In the event of an oil spill or hazardous substance release, the ESA must be considered in the development of federal response activities and actions during an oil spill response (Section 4314 of NWACP). As the spill response occurs, the FOSC must consult with the natural resource trustees as laid out in Section V.B of the Inter-agency Memorandum of Agreement Regarding Oil Spill Planning and Response Activities under the Federal Water Pollution Control Act’s National Oil and Hazardous Substances Pollution Contingency Plan and the Endangered Species Act (ESA MOA). The Environmental Unit, as outlined in the ESA MOA, will address ESA Section 7 Consultation requirements. However, the Wildlife Branch will be instrumental in documenting the effects of response actions on listed species. Coordination between the Wildlife Branch and the Environmental Unit is critical to accomplishing this task. Deterrence actions may be utilized by the Wildlife Branch to keep unoiled wildlife away from oil. No federal permits are required for non-lethal deterrence of migratory birds (50 CFR 21.41). However, this exemption does not apply to eagles and endangered species. The ESA does not specifically authorize deterrence and preemptive capture of endangered species. The Wildlife Branch, in consultation with the appropriate trustee agencies, may develop response strategies for deterrence and preemptive capture of endangered species for a specific spill incident. “Take” of endangered species resulting from approved response actions will be deemed incidental to the primary action of the spill response and will be covered by the ESA Section 7 Emergency Consultation process, unless otherwise authorized by a permit. Oil spill–related deterrence actions that involve southern resident killer whales are subject to the MMPA and the ESA. There is a contingency under the MMPA that gives a waiver for the “take” of marine mammals by federal or state employees for the health and safety of the animals or for human safety. There is no such exemption under the ESA, but a scientific research and enhancement permit (No. 932-1489) held by NOAA’s Marine Mammal Health and Stranding Response Program covers oil spill–related actions under the MMPA and ESA in Puget Sound.