Programs

Frequently Asked Questions

Table of Contents
What do 'threatened' and 'endangered' mean? What are Biological Assessments and Biological Opinions?
What is 'take'? Why does CDOT have to comply with the Endangered Species Act?
What is 'incidental take'? Is the Endangered Species Act the only act or law that CDOT must comply with?
What is the difference between 'critical habitat'
and 'designated critical habitat'?
What is the Migratory Bird Treaty Act?
What is 'section 7 consultation'? Since CDOT must comply with the MBTA, how is that done?

If section 7 consultation is for interagency cooperation, how does a state agency, such as CDOT, get involved in section 7 consultation?

What is CDOT doing to reduce the number of
road killed wildlife?

Q: What do 'threatened' and 'endangered' mean?
A: The terms 'threatened' and 'endangered' have specific meaning when used in the context of the Endangered Species Act (ESA) of 1973 (as amended). When a species is listed as threatened under the ESA that species is considered to be "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range [(ESA § 3(20)]." The ESA defines an endangered species as "any species which is in danger of extinction throughout all or a significant portion of its range [(ESA § 3(6)]."

Q: What is 'take'?
A: Take is another term that has specific meaning under the ESA. Take is legally defined to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct [ESA § 3(19)]" in regards to species identified as threatened or endangered.

Q: What is 'incidental take'?
A: Incidental take also has specific meaning under the ESA. Incidental take is legally defined to be the "take of listed fish or wildlife species that results from, but is not the purpose of, carrying out an otherwise lawful activity conducted by a Federal agency or applicant [50 CFR § 402.02]." 

Bobcat perched near CDOT Durango office

Q: What is the difference between 'critical habitat' and 'designated critical habitat'?                                                                                                                                                                                       A: The term 'critical habitat' is often used by biologists to signify particular habitat components that are necessary for a species during critical life stages. This could be, for example, lambing and calving areas for big horn sheep and elk, respectively. Another example is a willow carr community for nesting habitat by fox sparrows. Though these areas are critical to wildlife, they do not have the protection afforded 'designated critical habitat' as defined under the ESA. 'Designated critical habitat' for a threatened or endangered species means "(I) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species [ESA § 3 (5)(A)]."

Q: What is 'section 7 consultation'?
A: Section 7 of the ESA outlines the process and procedures for interagency (federal agency to federal agency) cooperation to conserve Federally listed species and designated critical habitats. Section 7(a)(1) requires Federal agencies to consult with the Services (U.S. Fish and Wildlife Service and the National Marine Fisheries Service) to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. Section 7 (a)(2) states that each Federal agency shall, in consultation with the Secretary, insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. This section of the ESA sets out the consultation process, which is further implemented by regulation (50 CFR § 402).

Q: If section 7 consultation is for interagency cooperation, how does a state agency such as CDOT get involved in section 7 consultation?
A: As section 7(a)(1) outlines, any action that receives Federal money or has a Federal nexus requires section 7 consultation. Because most projects that CDOT undertakes are either Federally funded or a Federal nexus is involved (e.g., a U.S. Army Corps of Engineers wetland permit) this allows the lead Federal agency to enter into section 7 consultation on behalf of the CDOT project. The Federal agency that enters into consultation on behalf of CDOT's project is responsible for ensuring that CDOT complies with the Biological Opinion issued by the USFWS.

Q: What are Biological Assessments and Biological Opinions?
A: A Biological Assessment (BA) is a document prepared by, or under the direction of, a Federal agency to determine whether a proposed project is likely to: (1) adversely affect listed species or designated critical habitat; (2) jeopardize the continued existence of species that are proposed for listing; or (3) adversely modify proposed critical habitat. The result of a BA is the determination of whether formal section 7 consultation or conference of proposed species is necessary. A Biological Opinion (BO) is a document prepared by the USFWS that identifies whether or not a Federal action is likely to jeopardize the continued existence of listed species or result in the destruction of or adverse modification of designated critical habitat. The BO contains a summary of the BA on which the opinion is based and a detailed discussion of the effects of the action on listed species or designated critical habitat [50 CFR §402.02, 50 CFR §402.14(h)]. The BO also permits incidental take of the species.

Q: Why does CDOT have to comply with the Endangered Species Act?
A: When Congress authorized the ESA in 1973 they made it clear that all persons subject to the jurisdiction of the United States must comply with the ESA. Section 3(12) of the ESA defines person to mean "an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign Government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States."

Q: Is the Endangered Species Act the only act or law that CDOT must comply with?
A: No, CDOT is subject to all Federal laws, including the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the Fish and Wildlife Coordination Act. State of Colorado wildlife laws also apply to CDOT, this includes State list threatened and endangered species protection. For information on CDOT's responsibility under the Clean Water Act § 404 process or the State of Colorado SB 40 regulations please visit the Wetlands Program website.

Q: What is the Migratory Bird Treaty Act?
A: The Migratory Bird Treaty Act (MBTA) is an Act of Congress established in 1918 that makes it unlawful, among other things, "to hunt, take, capture, kill,.[or] possess" any bird protected by the Act, except as permitted by regulation of the Secretary of Agriculture. Under the MBTA almost all birds are protected, including common species such as swallows, crows, and geese. The only birds not offered protection under the MBTA are European starlings, house sparrows, and the common pigeon. The MBTA provides nothing that prevents the states from making or enforcing laws or regulations which are consistent with the MBTA or which give further protection to migratory birds, their nests or eggs (16 U.S.C. §708). The MBTA is unique in that it is based upon earlier conventions and laws (such as the Lacey Act) entered into or enacted by the Congress for the purpose of protecting birds. The MBTA even goes as far as stating that not only birds are protected but also "or any part, nest, or egg of such bird, or any product, whether or not manufactured, which consists, or is composed in whole or any part of any such bird or any part, nest, or egg thereof." The USFWS, who is responsible for administering the MBTA, now does allow the removal of inactive nests for some species of birds without a depredation permit. Any active nest (a nest containing an egg or young) can not be removed or interfered with.

Q: Since CDOT must comply with the MBTA, how is that done?
A: For most projects, there are stipulations in the plans that state that no grubbing or cutting of nesting habitat can occur during the nesting season, generally April 1 through August 31. If that is not possible, a Threatened and Endangered Species Program biologist will consult with the USFWS to identify alternatives or best management practices to limit impacts.

Q: What is CDOT doing to reduce the number of road killed wildlife?
A: CDOT is actively examining techniques to identify what type of wildlife structures work best to allow wildlife movement across highways. CDOT has installed a number of wildlife underpasses of various sizes and designs specifically for the movement of wildlife.  

 

 

 

 

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