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On May 11, 2015, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the “Services”) issued a final rule to address the practice of using “surrogates” to express the amount or extent of take of members of a species that is allowed by incidental take statements in the Services’ biological opinions.  The use of surrogates in some circumstances is not a new practice, but the Services explained that they believed it appropriate to clarify the circumstances under which the use of a take surrogate was appropriate in light of recent court decisions.  The final rule also addresses the Services’ use of surrogates in incidental take statements issued for programmatic actions.

Section 7(a)(2) of the Endangered Species Act (ESA) requires all federal agencies to ensure their actions do not jeopardize the continued existence of endangered or threatened species or result in the adverse modification of designated critical habitat.  This mandate requires federal agencies to consult with one or both of the Services (depending on the species in issue) to evaluate the impact the action agency’s proposed actions will have on listed species.  At the conclusion of such consultation, the Services issue a biological opinion in which they state their determination as to whether the proposed action would violate Section 7(a)(2).  If not or if the Services identify reasonable and prudent alternatives that would allow the action to proceed without violating Section 7(a)(2), but the project is nonetheless likely to result in incidental take, the Services issue an incidental take statement that specifies the amount of incidental take allowed for the agency action.  An incidental take statement shields the action agency (and non-federal applicants) from take liability under Section 9 of the ESA so long as there is compliance with the statement’s minimization measures and terms and conditions.  50 C.F.R. § 402.14(i)(5).  The amount or extent of incidental take is commonly expressed in terms of a limitation on the number of individuals of the species allowed to be taken.  This limit also establishes a point at which consultation must be reinitiated.  50 C.F.R. § 402.14(i)(4).

In the final rule, the Services acknowledge that Congress expressed a preference that incidental take statements provide numerical limitations on the amount or extent of incidental take.  However, the Services explain that Congress also recognized that numerical quantification of incidental take might be difficult or impossible in certain situations where, for example, the biology of a species or the nature of an action make it impractical to detect or monitor take of individuals of a listed species.  Accordingly, the final rule permits the Services to rely on surrogates of take in lieu of quantifying a specific amount or extent of take.  Specifically, the Services’ final rule amends their joint regulation governing the contents of incidental take statements to allow the use of surrogates, such as similarly affected species (including non-listed species) or changes in habitat or ecological conditions, “to express the amount of or extent of anticipated take provided the biological opinion or incidental take statement:  [1] Describes the causal link between the surrogate and take of the listed species, [2] explains why it is not practice to express the amount or extent of anticipated take or to monitor take-related impacts in terms of individuals of the listed species, and [3] sets a clear standard for determining when the level of anticipated take has been exceed.”  50 C.F.R. § 402.14(i)(1)(i).  The final rule can be reviewed in its entirety at 80 Fed. Reg. 26,832 (May 11, 2015).

For more information about the Services’ final surrogate rule, please contact Jason Canger atjcanger@somachlaw.com.

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