Common use of The inadequacy of existing regulatory mechanisms Clause in Contracts

The inadequacy of existing regulatory mechanisms. Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to the four dune beetles discussed under the other factors. Section 4(b)(1)(A) of the Endangered Species Act requires the Service to take into account ‘‘those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species * * *’’ We interpret this language to require the Service to consider relevant Federal, State, and Tribal laws and regulations when developing our threat analyses. Regulatory mechanisms, if they exist, may preclude the need for listing if we determine that such mechanisms adequately address the threats to the species such that listing is not warranted. The Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, large aegialian scarab, and ▇▇▇▇▇▇▇▇’▇ dune scarab are not protected under Nevada State law because they are classified as insects and not wildlife (NRS 555.265). However, the range of each species occurs on Federal lands managed by the BLM, so protection and management of the habitat for each species is determined by Federal laws, regulations, and policies. Relevant Federal laws, regulations, and policies are summarized below. be expected from an activity in compliance with current standards, in compliance with current regulations, and implemented using the best reasonably available technology (i.e., undue and unnecessary degradation). The Federal Land Policy and Management Act’s implementing regulations, 43 CFR 2800 and 43 CFR 3000, control administration and authorization of ROWs and mineral management, respectively. These regulations require the BLM to reduce environmental impacts from these ROWs to environmental resources, including these four sand dune beetle species. NEPA requires all Federal agencies to formally document, consider, and publicly disclose the environmental impacts of major Federal actions and management decisions significantly affecting the human environment. The NEPA documentation is provided in an environmental impact statement, an environmental assessment, or a categorical exclusion, and may be subject to administrative or judicial appeal. As part of BLM policy, for any mining and solar power plant applications to conduct operations in the Crescent Dunes, San Antonio Dunes, Lava Dune, or Big Dune, an analysis will be conducted to evaluate potential effects to these dune beetles and identify possible project alternatives. The Service would have the opportunity to comment on the project alternatives and provide conservation recommendations to protect these beetles. However, the BLM is not required to select an alternative having the least significant environmental impacts and may select an action that will adversely affect these beetles, provided that these effects are disclosed in their NEPA document. four beetle species as sensitive species (BLM 2003, p. 6). Under their 6840 manual, BLM is required to manage sensitive species and their habitats to minimize or eliminate threats affecting the species or improve the condition of the species’ habitat in order to reduce the likelihood of listing under the Act (BLM 2008, pp. 3, 38). The BLM identified and implemented several management actions that conserve habitat for the Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, aegialian scarab, and ▇▇▇▇▇▇▇▇’▇ dune scarab (BLM 1994, pp. 1–427; BLM 1997, pp. 1–193). The BLM’s management action to conserve the Crescent Dunes aegialian scarab and Crescent Dunes serican scarab is the prohibition of ORV use on vegetated sand areas within the Crescent Dunes SRMA (BLM 1997, p. 21). The area is closed to high-speed race events (BLM 1997, p. 20, Map 30). The area is also designated as a ROW avoidance area; however, ROWs can be granted (e.g., solar power plants) if no feasible alternative can be found (BLM 1997, p. 19, Map 22). The area is closed to non- energy leasable minerals and subject to no-surface-occupancy restrictions for fluid leasable minerals (BLM 1997, p. 21, Map 34).

The inadequacy of existing regulatory mechanisms. Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to the four dune beetles discussed under the other factors. Section 4(b)(1)(A) of the Endangered Species Act requires the Service to take into account ‘‘those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species * * *’’ We interpret this language to require the Service to consider relevant Federal, State, and Tribal laws and regulations when developing our threat analyses. Regulatory mechanisms, if they exist, may preclude the need for listing if we determine that such mechanisms adequately address the threats to the species such that listing is not warranted. The Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, large aegialian scarab, and ▇▇▇▇▇▇▇▇’▇ dune scarab are not protected under Nevada State law because they are classified as insects and not wildlife (NRS 555.265). However, the range of each species occurs on Federal lands managed by the BLM, so protection and management of the habitat for each species is determined by Federal laws, regulations, and policies. Relevant Federal laws, regulations, and policies are summarized below. greater than those that would normally be expected from an activity in compliance with current standards, in compliance with current regulations, and implemented using the best reasonably available technology (i.e., undue and unnecessary degradation). The Federal Land Policy and Management Act’s implementing regulations, 43 CFR 2800 and 43 CFR 3000, control administration and authorization of ROWs and mineral management, respectively. These regulations require the BLM to reduce environmental impacts from these ROWs to environmental resources, including these four sand dune beetle species. NEPA requires all Federal agencies to formally document, consider, and publicly disclose the environmental impacts of major Federal actions and management decisions significantly affecting the human environment. The NEPA documentation is provided in an environmental impact statement, an environmental assessment, or a categorical exclusion, and may be subject to administrative or judicial appeal. As part of BLM policy, for any mining and solar power plant applications to conduct operations in the Crescent Dunes, San Antonio Dunes, Lava Dune, or Big Dune, an analysis will be conducted to evaluate potential effects to these dune beetles and identify possible project alternatives. The Service would have the opportunity to comment on the project alternatives and provide conservation recommendations to protect these beetles. However, the BLM is not required to select an alternative having the least significant environmental impacts and may select an action that will adversely affect these beetles, provided that these effects are disclosed in their NEPA document. four beetle species as sensitive species (BLM 2003, p. 6). Under their 6840 manual, BLM is required to manage sensitive species and their habitats to minimize or eliminate threats affecting the species or improve the condition of the species’ habitat in order to reduce the likelihood of listing under the Act (BLM 2008, pp. 3, 38). The BLM identified and implemented several management actions that conserve habitat for the Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, aegialian scarab, and ▇▇▇▇▇▇▇▇’▇ dune scarab ▇▇▇▇ ▇▇▇▇▇▇ (BLM 1994▇▇▇ ▇▇▇▇, pp. 1–427; BLM 1997, pp. 1–193). The BLM’s management action to conserve the Crescent Dunes aegialian scarab and Crescent Dunes serican scarab is the prohibition of ORV use on vegetated sand areas within the Crescent Dunes SRMA (BLM 1997, p. 21). The area is closed to high-speed race events (BLM 1997, p. 20, Map 30). The area is also designated as a ROW avoidance area; however, ROWs can be granted (e.g., solar power plants) if no feasible alternative can be found (BLM 1997, p. 19, Map 22). The area is closed to non- energy leasable minerals and subject to no-surface-occupancy restrictions for fluid leasable minerals (BLM 1997, p. 21, Map 34).