Common use of LEVEL OF INCIDENTAL Clause in Contracts

LEVEL OF INCIDENTAL. TAKE Under the ESA Sec. 3(18) “take” is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting any species protected under that act or engaging in any such conduct. The Interior Secretary further defined “harm” as that “which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering; significant environmental modification or degradation which has such effects.” (Federal Register 44412, 44416: 1975). In the event that LEPC becomes listed under the ESA, a variety of management and development actions have the potential to result in take of the species. In the case of the LEPC, direct mortality from development may occur from, for example, collisions with fencing or vehicles, but habitat loss due to the tendency of the species to avoid developments has a higher likelihood of a potential source of take. Several sources have documented avoidance of many types of infrastructure by nesting hens (Xxxxxx et al. 2005, Xxxxx et al. 2011, Xxxxxxx et al. In Press). Beyond direct mortality, habitat loss and reduced reproduction, there are also actions that may result in further sources of take. Off-road travel, mineral exploration and construction activities may result in disturbance of lekking behavior, breeding, and nest and brood attendance. In addition, construction and maintenance activities related to development may result in increased travel on primary and secondary roads that lead to increased disturbance beyond what is expected from these roads. And finally, management activities for LEPC conservation purposes, such as common grazing management practices, prescribed burning, and tree removal, all have the potential to result in take. This section is intended to analyze potential impacts or take of LEPCs as a result of the Covered Activities. However, there are several challenges related to estimating take that are unique to the LEPC. First and foremost, the scale of the analysis is large, covering parts of five states. In addition, like most birds, the extent of the range of the species is very much in flux from year to year. Detecting the birds in low density habitat around the periphery of the range is difficult and the species is highly mobile. And finally, LEPC is notoriously difficult to survey, and those surveys occur only when the birds come to leks in the spring. Until very recently, survey methodology and intensity varied widely between states, but recent range-wide aerial surveys have begun to solve that problem. As a result this analysis will focus on estimating the potential acreage impacted by those development and management activities and will estimate take based on estimates of LEPC density. In the case of energy and civil infrastructure development impacts, this analysis considers everything that is not within an Impact Buffer, including cropland, as potential habitat. Cropland ranks as low quality habitat under the habitat metrics in the RWP. The intent of this analysis is to estimate potential take on 10, 20, and 30 year timeframes. Given the degree to which oil and gas development levels historically have varied from year to year, estimates of development at intervals shorter than 30 years (i.e., 10 and 20-year intervals) are not appropriate. The CCAA evaluates development levels based on 30-year projections. However, energy markets and technology, climatic conditions, land use patterns and practices, and ultimately LEPC populations vary over time. It is important to recognize that although this analysis assumes that any development action that occurs outside of buffers from pre-existing impacts may result in incidental take of LEPC, such development will not necessarily result in incidental take of LEPC throughout all of EOR. The likelihood that development actions will result in incidental take is reflected through the use of LEPC densities.

LEVEL OF INCIDENTAL. TAKE Under the ESA Sec. 3(18) “take” is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting any species protected under that act or engaging in any such conduct. The Interior Secretary further defined “harm” as that “which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering; significant environmental modification or degradation which has such effects.” (Federal Register 44412, 44416: 1975). In the event that LEPC becomes listed under the ESA, a variety of management and development actions have the potential to result in take of the species. In the case of the LEPC, direct mortality from development may occur from, for example, collisions with fencing or vehicles, but habitat loss due to the tendency of the species to avoid developments has a higher likelihood of a potential source of take. Several sources have documented avoidance of many types of infrastructure by nesting hens (Xxxxxx et al. 2005, Xxxxx et al. 2011, Xxxxxxx et al. In Press). Beyond direct mortality, habitat loss and reduced reproduction, there are also actions that may result in further sources of take. Off-road travel, mineral exploration and construction activities may result in disturbance of lekking behavior, breeding, and nest and brood attendance. In addition, construction and maintenance activities related to development may result in increased travel on primary and secondary roads that lead to increased disturbance beyond what is expected from these roads. And finally, management activities for LEPC conservation purposes, such as common grazing management practices, prescribed burning, and tree removal, all have the potential to result in take. This section is intended to analyze potential impacts or take of LEPCs as a result of the Covered Activities. However, there are several challenges related to estimating take that are unique to the LEPC. First and foremost, the scale of the analysis is large, covering parts of five states. In addition, like most birds, the extent of the range of the species is very much in flux from year to year. Detecting the birds in low density habitat around the periphery of the range is difficult and the species is highly mobile. And finally, LEPC is notoriously difficult to survey, and those surveys occur only when the birds come to leks in the spring. Until very recently, survey methodology and intensity varied widely between states, but recent range-wide aerial surveys have begun to solve that problem. As a result this analysis will focus on estimating the potential acreage impacted by those development and management activities and will estimate take based on estimates of LEPC density. In the case of energy and civil infrastructure development impacts, this analysis considers everything that is not within an Impact Bufferimpact buffer, including cropland, as potential habitat. Cropland ranks as low quality habitat under the habitat metrics in the RWP. The intent of this analysis is to estimate potential take on 10, 20, and 30 year timeframes. Given the degree to which oil and gas development levels historically have varied from year to year, estimates of development at intervals shorter than 30 years (i.e., 10 and 20-year intervals) are not appropriate. The CCAA evaluates development levels based on 30-year projections. However, energy markets and technology, climatic conditions, land use patterns and practices, and ultimately in LEPC populations vary over time. It is important to recognize that although this analysis assumes that any development action that occurs outside of buffers from pre-existing impacts may result in incidental take of LEPC, such development will not necessarily result in incidental take of LEPC throughout all of EOR. The likelihood that development actions will result in incidental take is reflected through the use of LEPC densities.