Endangered Species and Development Laws

By James J. Doyle, III and Timothy R. Henderson

Mr. Doyle is Of Counsel jdoyle@richlaw.com and Mr. Henderson is a partner, thenderson@richlaw.com with the law firm Rich and Henderson, P.C.

Many species of animals and plants are threatened with extinction; on the other hand, the endangered species law and regulations, and the bureaucrats who administer them, are not. Property owners, developers, contractors - even a boy scout with a butterfly net - can easily run afoul of these laws and invoke the wrath of those who enforce them. These laws place significant restrictions on private property rights. Despite being on the books for over a quarter of a century, significant uncertainty clouds their implementation. We believe the fault lies in the ambiguous wording of the law and the failure of implementing opinions to adopt clear criteria in the implementing regulations. To avoid delay and frustration you need to know what is covered under the law and regulations, a difficult task with a law so imprecise.

OVERVIEW OF MARYLAND LAW

Maryland's Non game and Endangered Species Conservation Act ("ESA") is set out in Article 10, subtitle 2A of the Natural Resources Article. An endangered species is any species whose continued existence as a viable component of the State's wildlife or plants is determined by the Department of Natural Resources ("DNR") to be in jeopardy, or a species of wildlife or plant classified as an endangered species pursuant to the Federal Endangered Species Act, 16 U.S.C. § 1531 et seq. A threatened species is one which appears likely within the foreseeable future to become endangered.

Generally, the DNR will look at whether a species is restricted to a small geographic area, whether it has experienced a rapid and substantial decline, whether essential habitat has been rapidly lost, and whether the species biology makes it highly susceptible to environmental changes. Hundreds of species of Maryland wildlife and plants are considered to be endangered or threatened as evidenced by their inclusion on the combined DNR and federal listing.

Once a species of wildlife has been listed as endangered, it is unlawful to export the species from the State, possess or offer it for sale, or to "take" the species within the State, which means to harass, harm, pursue, hunt, kill, or capture it. With respect to endangered plants, a person may not export the species, or possess or offer it for sale. Md. Nat. Res. Code Ann §10-2A-05. Note that the statute does not prohibit a person from cutting down an endangered species of plant, although killing or harming an endangered species of wildlife is prohibited. A person could not, however, sell or purchase the endangered plant.

The challenge for property owners or developers comes from actions taken by other government agencies in instances where permit or other approval is sought from those agencies. The Maryland ESA directs state permit issuance authority and provides that permit issuing agencies "utilize their authorities in furtherance of the purposes of this subtitle by carrying out programs for the conservation of endangered species and threatened species" and "by taking any action necessary to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of the endangered species or threatened species or result in the destruction or modification of habitat of the species which is deemed by the Secretary [of DNR] to be critical." Md. Nat. Res. Code Ann §10-2A-06(c).

To "jeopardize the continued existence of" an endangered species means "to engage in action which would reasonably be expected, directly or indirectly, to reduce appreciably the likelihood of either the survival or recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of a listed species, or otherwise adversely affecting the species." Government agencies have taken this statutory mandate seriously and no one objects to that. But as will be pointed out in this article, the Act is written and implemented in such a way that it has created a new endangered species that of property rights.

ACTION BY OTHER AGENCIES - PERMITS

The source of the problem with the ESA lies in DNR's advisory function regarding permit issuance actions of other states agencies whenever an endangered species or its habitat may be involved. Foremost among these agencies, from the viewpoint of property owners and developers, is the Maryland Department of the Environment ("MDE"), which has the responsibility to evaluate and make decisions on a number of different types of permits governing development of property. These include permits to fill non-tidal, tidal, private and state-owned wetlands, to build in waters of the state, to extract minerals, coal or sand and gravel, or to construct waterway obstructions. In addition, the Maryland Critical Areas law has led to the adoption of development permit and approval processes by Maryland counties in the Chesapeake Bay watershed. The law requires the county programs to create overlay zones designed to protect the natural resource values in a buffer area along the shoreline of the Bay and its tributaries (1,000 feet landward from the edge of tidal waters or wetlands).

In connection with these permits and others, DNR (especially the Heritage Program) plays an important advisory role. Md. Nat. Res. Code Ann § 10-2A-06(c) requires all State agencies to carry out their programs for the conservation of endangered and threatened species, and also to ensure that actions which it authorizes or funds does not jeopardize the continued existence of an endangered species or result in the destruction or modification of critical habitat of that species.

For example, when MDE receives a permit application for development in wetlands or waterways, it is required to send the application to DNR's Wildlife and Heritage Program for review and comment. While DNR's comments are not legally binding on MDE, it is clear from past experience that MDE seriously considers the views of DNR on these issues and often defers to DNR without critically evaluating and weighing the consequences of deferral.

ROLE OF FEDERAL ENDANGERED SPECIES ACT

As in many other areas of law, the law relating to an endangered species is determined at two levels; state and federal. The Maryland law was clearly modeled after the Federal Act enacted in 1973, and incorporates by reference the listed federal and state species.

The Federal Act has similar provisions for agency action and consultation. It requires each Federal agency to consult with the Secretary of the Interior or Commerce (principally through the Fish and Wildlife Service) to ensure that any action authorized, funded, or carried out by the agency (the same language used in the Maryland statute) is not likely to jeopardize the continued existence of any endangered species or threatened species, or result in the destruction or adverse modification of habitat. Fish and Wildlife often will conduct a biological assessment for the purpose of identifying any endangered or threatened species which is likely to be affected by the proposed action.

These assessments often result in substantial delay, as the law permits an assessment to be conducted during a 180 day period, with provisions for an extension of that period for an indefinite time. For example, the U.S. Army Corp of Engineers is authorized to issue permits pursuant to the Rivers and Harbors Act, which authorizes and regulates construction in navigable waters. In making a decision under that Act, the Army Corp typically consults with Fish and Wildlife to determine if there is an issue that arises from the presence of an endangered species on the project.

INTERACTION BETWEEN FEDERAL AND STATE AGENCIES

Development projects which require federal and state permits face ever greater complication under the endangered species laws. Not only must the developer obtain permits from both a federal and state agency, it must also obtain advice and comment from the state and federal fish and wildlife agencies.

This means, for example, that MDE will decide to issue a permit with input from DNR, and for the same project, the Corp of Engineers will decide whether to issue a permit with input from U. S. Fish and Wildlife. These multiple reviews by state and federal agencies impose significant time and financial burdens on a developer, and can result in lengthy delays on an application. More importantly, the review by the consulting federal agencies are not governed by a clear set of guidelines or time constraints.

CONFUSION/LACK OF PRECISION

One of the principle problems of the Maryland ESA is the lack of clear, precise criteria for either agencies or developers to follow in its implementation. Developers feel they are at the mercy of the whim and caprice of individual DNR advisors or commentors. DNR staff, pursuant to their mission, tend to focus exclusively on protecting endangered species and act as advocates fully exploiting the vague language of the Endangered Species Act to their benefit. The state permit issuing agencies too often defer to DNR staff to avoid controversial decisions; the permitting process therefore fails to appropriately balance legitimate rights of property owners and other interests that may substantially outweigh the interest of a protected endangered species. The result is clearly one not intended by the laws where the endangered species are provided with absolute protection without regard to rights of property owners.

AMBIGUOUS LANGUAGE

The absence of clear guidelines stems directly from the imprecise and nebulous directive in the ESA to state agencies. It directs them to carry out their programs by "taking any action necessary to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of the endangered species or threatened species or result in the destruction or modification of habitat of the species which is deemed by the secretary to be critical." What does this mean?

It provides no guidance helpful to a landowner or developer to determine what is allowed, or what is prohibited. The regulation adopted by DNR to define "jeopardize the continued existence of" provides no meaningful help. The regulation parrots the law without clarification by prohibiting "an action which reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of either the survival or recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of a listed species or otherwise adversely affecting the species." COMAR?

The regulatory provision raises more questions that it answers. For example, does it apply to the population of the species as a whole, or does it apply to actions with respect to individual members of the species? It would seem to apply simply to the population as a whole, as it applies only to actions which "reduce the likelihood of the survival of recovery of a listed species," rather than the survival or recovery of particular individual member within that species.

That would certainly seem to be the more reasonable interpretation of the regulation, and it gives the property owner or developer a persuasive argument that the proposed action must be judged on the basis of the overall effect on the species, not on the basis of isolated members of the species. This interpretation would also be consistent with the last section of the regulation that prohibits an action that was "otherwise adversely affecting the species." Again, the better argument seems to be that it is a species as a whole which is significant, and not individual members of it.

This conclusion, however, is complicated by the fact that in addition to the section on the responsibility of state agencies to enforce the Act, the ESA also contains prohibitions on the conduct of private persons. Md. Nat. Res. Code Ann § 10-2A-05, as pointed out, for example, prohibits a person from a "take" of the species within the State. "Take" is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."

Certainly actions taken by individuals that result in killing or harming individual members of the species would clearly be an unlawful "take" of the species. The individual property owner, therefore, may find himself in an interesting situation. He may be granted a permit by a State agency to conduct an activity on his property which has been approved by the agency because it does not reduce appreciably the likelihood of survival or recovery of the species as a whole; on the other hand, the activity might result in the killing of individual members of the species, a "take" prohibited under the statute. In that case, the property owner or developer may have to request a permit for a "incidental taking" which means the taking of a listed species that is incidental to, and not for the purpose of, the carrying out as an otherwise lawful activity conducted by a person on private property.

The regulation also prohibits agency approval of actions that would otherwise "adversely affect the species." Unfortunately, there is absolutely no guidance given on what this provision means. Is it limited to the earlier language concerning reducing appreciably the survival or recovery of the species, or does it go further and include other types of harm to the species? If it does, the problem is that the statute has given absolutely no guidance as to what that "adverse harm" is meant to be.

HABITAT MODIFICATION

Another area of significant concern arises with respect to elimination or modification of habitat that may support an endangered species. Md. Nat. Res. Code Ann § 0-2A-06, requires that state agency actions "not jeopardize the continued existence" of the species, or "result in the destruction or modification of habitat of the species which is deemed by DNR to be critical." Clearly, the statute applies to destruction or modification of habitat that is deemed by the Secretary to be "critical." The problem is that DNR has not made any determination that any specific habitat for any species is critical. As pointed out earlier, the Secretary has designated certain areas of the state as "Natural Heritage Areas."

However, in order to qualify as a Natural Heritage Area, there is no requirement or finding that the area or its habitat be "critical." In fact, a Natural Heritage Area is simply one that contains the endangered species, is a unique blend of various features, and is considered to be among the best statewide examples of its kind. The result is that a State agency cannot rely on a listing of a area as a Natural Heritage Area in itself to prohibit an activity which may result in habitat destruction.

The question that then arises is whether the portion of the statute relating to jeopardizing the continued existence of a species could apply to habitat destruction or modification. Applying it to habitat could certainly be argued to be in opposition and contrary to the second portion of the statute dealing specifically with habitat, and requiring a finding by the Secretary that the habitat be "critical." If the first section can be applied to habitat, there is really no reason for the Secretary to exercise his authority under the second portion by finding a particular habitat to be critical.

But even if it could be argued that the "jeopardizing the continued existence of" language also applies to habitat, it is certainly far from clear as to how that applies. If it applies, then habitat destruction or modification would be prohibited if it "directly or indirectly" reduced appreciably the likelihood of survival or recovery of a species. Just how direct or indirect would an action of habitat modification have to be in order to be covered by this section? How much affect on survival must it have?

If a company, for example, applied for a surface mining permit which might, on occasion, release dust into the atmosphere which might, on occasion, settle in a particularly sensitive area miles away and disrupt breeding patterns of the species, would that constitute jeopardizing the continued existence of the species so that the surface mining permit could be denied on that basis?

SECRET HABITAT PROTECTION AREAS

As previously stated, DNR has mapped, through its regulatory authority, various areas of the State as "Natural Heritage Areas." Unfortunately, DNR and local governments have morphed the Natural Heritage Areas into habitat protection areas, and inappropriately use the terms interchangeably. Presently, the State has designated 32 areas as Natural Heritage Areas.

Yet, neither the underlying DNR law, nor the DNR regulation, gives DNR authority to restrict land use within a Natural Heritage Area. It appears instead that the main thrust of the Natural Heritage Area designations has been to encourage local governments to incorporate these areas into their land use control programs such as zoning and critical areas legislation. Arguably, DNR's efforts in this regard are an unauthorized attempt to control land use and to usurp local control. DNR's efforts, however well intentioned, erect a virtual stop sign for any development activities within the designated areas.

Remarkably, DNR staff takes the position that the maps showing the locations of habitat protection areas are generally secret, and will not be disclosed except to the current owner of the land. A recent letter to DNR for maps concerning the habitat protection area for an endangered beetle was met with a denial: only the current landowner could receive such information. How the public interest is served by keeping this information secret was not given or explained by DNR. The suspicion is that DNR simply does not want the public to know the extent of its efforts to curtail property rights over substantial areas of the State. At a minimum, DNR representatives with whom this firm has dealt with seem to believe that the approved Natural Heritage Areas merely provide a general location of the habitat protection area not the precise boundary contemplated by the law and regulations.

CASE STUDIES

There really is no end to the imaginative and creative application by DNR of the ESA to attempt to prohibit or inappropriately curtail a wide range of valid property development projects. The language is so imprecise, and the degree of discretion given to the administrators so great, that there has been a steady erosion of many property rights thought to be secure.

Take, as one example, riparian rights. A group of property owners (represented by the authors) recently applied to MDE for permission to construct a stone revetment on the shoreline immediately adjacent to their properties to prevent the disappearance of their land. They own land on high cliffs along the Bay that are subject to erosion, often substantial erosion, which is rapidly disappearing through routine losses of large chunks of land into the Bay. Their property and residences are threatened, as is the life and safety for anyone walking along the cliff or on the beach below. In February of this year alone, 10 to 12 feet of land on portions of the property simply cracked and fell into the Bay. Without the revetment, much more land will disappear, septic tanks will fall into the Bay and possibly homes.

Unfortunately for these property owners, the property is located within a Natural Heritage Area, and the area is a listed habitat protection area in the local critical area program. DNR takes the position that the project should be denied because eroding cliffs are necessary habitat for an endangered beetle that lives within eroding cliffs. DNR asserts that construction of the revetment would result in loss of habitat, because the revetment would prevent erosion to the cliffs and would stabilize those cliffs. Stabilization would adversely impact the population of the beetle according to DNR.

It is clear, however, that other applicable State statutes do not permit this application to be rejected simply because it may result in adverse impact to an endangered species. Section 16-201 of the Environment Article specifically permits an owner of land bounding on navigable water to make improvements into the water in front of his land to protect the shore of that person against erosion. This riparian right cannot simply be denied because of a claim of adverse impact on a species.

Moreover, the Board of Public Works, which is authorized to issue the State wetlands permit, is required by statute to decide if issuance of a license is in the best interest of the State, taking into account the varying ecological, economic, developmental, recreational, and esthetic values each application presents. This statute setting out riparian rights clearly envisions that the Board, and MDE in its recommendation, carefully weigh each of the factors in a particular application; the impact on an endangered species is not in itself determinative. In this case, MDE must weigh all of the factors, including the impacts on property, property values, and health and human safety, as well as the potential impact on the beetle, and its ability to successfully transition to neighboring areas.

In another case, a developer wished to develop a 210 acre farm into residential homes. DNR was concerned about runoff from impervious surfaces, and the potential impact on the dwarf wedge mussel, and endangered wildlife species, habitat in an unmapped stream located some distance from the farm. Yet, the ESA imposes restrictions only on a development which significantly modifies habitat, and which, as a result actually injures endangered species.

This was not the case in this proposed development. DNR had no evidence that the development under its original configuration would cause such an impact for the dwarf mussel habitat. However, DNR knew that the developer likely would capitulate to its demands due to threat of delay.

The ESA does not trump all other rights, including property rights, as DNR contends. Unfortunately, however, ESA and its disciplinary regulations are so imprecise and contradictory that administrators too often exceed this authority by imposing restrictions not required or authorized by the law. Interpretation and application of the ESA can drastically impact property rights, requiring property owners to carefully scrutinize these interpretations.

CONCLUSION

From the pro-development viewpoint, there are a number of lessons and conclusions to be drawn from the state of the ESA implementation problems. For the near term, developers need to plan for the potential pitfalls and time delays associated with application of ESA requirements in state permit processes. We recommend that all potential wildlife and endangered and threatened species be identified and to the extent habitats have been mapped to identify those maps. It is also important to inventory all applicable state and local permitting and approval processes that incorporate agency review.

For those permits and approvals which require DNR or Fish & Wildlife Agency review, all of the facts available about the species need to be gathered including habitat characteristics, lifestyles and maps identifying where they are located and what is considered their habitat. These facts should be incorporated in the design of the development in precise ways so that when reviews are performed, the agency staff must present facts, not presumptions and assumptions. This will avoid blanket prohibitions or restrictions on development to protect species without precise scientific principals for doing so.

From a longer term standpoint, it would be appropriate after over a quarter of a century of the environmental species protection laws enactment and implementation for the applicable law or regulations to be revised by the legislature to require more precise criteria, to put permit program administrators on notice of what is required and what is not required, and to provide more protection for property rights. This will take the myth and whim and caprice of subjective analysis by individual agency staff out of the mix.

Reproduced with permission from MSBA