Opening or expanding mining operations will likely bring the federal government to the table wielding the Endangered Species Act. This can be a time-consuming and frustrating scenario, but it is a predictable process that is best managed with patience. It is just another inevitable part of permitting.

Any operation that has a federal connection to permitting will unleash the ESA, says Lori Pruitt, an endangered species biologist for the Fish and Wildlife Service (www.fws.gov). Even if mining is not planned for the area but there is a waterway dubbed “wetlands” or “navigable” — voila — there's the tie. These are under the jurisdiction of the Army Corps of Engineers and, when it's time to permit, the Corps will be seeking consultation from the FWS per Section 7.

STANDARD PROCEDURE

Section 7 of the ESA directs all federal agencies to consult with the FWS to identify and protect listed species and their habitat. This applies to management of federal lands and federally regulated activities such as mining that may affect listed species. It most commonly comes into play during standard permitting and licensing.

There are some real horror stories about dealing with the ESA including high-profile cases involving the spotted owl and the timber industry, but these cases are anomalies, says Tom Johnston, a consultant for Skelly & Loy (www.skellyloy.com). The environmental consulting firm can help carry an operation through this phase of the permitting process.

“In a lot of cases with endangered species, it is not a case of absolute prohibition,” Johnston says. “It is one that can be dealt with from a planning standpoint.”

TIME IS MONEY

This planning stage is fairly predictable, although it is going to take time and cost money. The cost to the operator can total $50,000, Johnston says. This is not a very significant cost, however, when you are looking at months of lost production. Johnston estimates 12 to 15 months to make it through an entire permitting process required by the ESA. It can last much longer, however, especially if the site is in or near suburbia.

He points out that the FWS does not care how long this process takes, but time is money to the producer. Allow as much time as possible to assure that the best deal is made. Fall into a situation where you are racing against time, and the likelihood of overpaying or being overregulated increases.

STEP BY STEP

Johnston says Congress was very clear about what it wanted when the ESA was drafted and there is very little wiggle room for the courts to interpret the regulation. This also is one of the reasons that the ESA has been upheld for so long and why it is such an incredibly strong regulatory program. Johnston says there are very distinct steps to an FWS consultation.

The first step is the Section 7 consultation — when an applicant first seeks consultation with the FWS. The organization then decides whether or not there is the possibility of an endangered species being present. If the answer is yes, it is time for step two.

This is an informal consultation, in which the FWS determines the likelihood of that species' presence. If the FWS determines that it is likely, a more formalized consultation begins. This will involve a confirmation study. If FWS confirms that the species is indeed present, a biological assessment must be made. This is a technical document, which is an examination of the project and a prediction of its impact on the species in question. This most often involves the collection and/or trapping of the species. Or it might be as simple as waiting until the species migrates before stripping.

The FWS uses this document to create its biological opinion, which typically leads to the approval of the project. However, mitigation will be required, especially if there will be an adverse impact upon the species. Mitigation is most typically some form of habitat preservation or restoration to compensate. The most important factor is that the species survives.

LEAVE NOTHING ELSE

Once a permit is obtained, nothing should be left standing outside of the mitigation area. This may be an unfortunate circumstance for the environment, but it has become an issue of liability management.

Johnston cites one instance where a quarry was operating before the Clean Water Act to effect. When its 35-year permit expired, the state alleged that it had been mining through wetlands, which in reality were just drainage ditches created for agriculture. In hindsight, the operation would have been better off filling them with overburden. Also, if there is green growth on the permitted property, you never know what plant or animal might pop up.

BIODIVERSITY

Increasing the likelihood of being required to produce assessments on threats to endangered species is the continued loss of biodiversity. Johnston explains that biological diversity is simply the array of plants and animals that an environment consists of.

Unfortunately, development often threatens to shrink this diversity, often resulting in the loss of rare or relic habitat. Examples include certain prairies that have nearly vanished along Chicago's South Side. “Some people look at this and say ‘that's fine,’” Johnston adds. “There is a natural evolutionary process that applies to landscapes as it applies to species.”

Another loss of biodiversity is a symptom of habitat fragmentation. This occurs every time a large portion of continuous habitat is cut into parcels, either by a road, trail or pipeline. These corridors create an “invasive conduit,” which introduces new species into the mix. This often includes edge predators such as raccoons. As a result, other species suffer.

Biodiversity also is lost from evasive species. These plants and animals have been introduced from the outside. They have a competitive advantage and completely take over. “This gets the least amount of play,” Johnston says. “But in my opinion as a biologist, it has the largest impact.”

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