Fish and Wildlife Service Issues Guidance on Incidental Take Permits

The U.S. Fish & Wildlife Service (FWS), the agency within the Department of Interior with primary responsibility for the administration and enforcement of the Endangered Species Act (ESA), issued new guidance on April 26, 2018, addressing the triggering circumstances for an incidental take permit (ITP) under Section 10(a)(1)(B) of the ESA. The guidance was issued in a Memorandum (Mem.) from the Principal Deputy Director to Regional Directors.

The Memorandum emphasizes that, while FWS personnel “can and should advise non-federal parties on the law,” the threshold determination whether to develop a habitat conservation plan and apply for an ITP “ultimately rests with the project proponent.” Mem. at 1. While project proponents may seek FWS guidance, “[t]hey may proceed (at their own risk) as planned without a permit, modify their project and proceed without a permit, or prepare and submit a permit application. The biological, legal, and economic risk assessment regarding whether to seek a permit belongs with the private party determining how to proceed.” Id. (footnote omitted). Presumably, this directive was designed to reduce the number of protective ITP applications and conserve the agency resources that are consumed in addressing them.

The Memorandum also provides further guidance on the circumstances in which habitat modification is likely to result in a “take” under the ESA creating the necessity for an ITP. Analyzing the history of the regulatory definition of “harm” and the judicial decisions discussing that definition, the Memorandum states:

The law is clear, then, that in order to find that habitat modification constitutes a taking of listed species under the definition of “harm,” all aspects of the harm definition must be triggered. The questions that should be asked before a determination is made that an action involving habitat modification is likely to result in take are:

1.   Is the modification of habitat significant?
2.   If so, does that modification also significantly impair an essential behavior pattern of a listed species?
3.   And, is the significant modification of the habitat, with a significant impairment of an essential behavior pattern, likely to result in the actual killing or injury of wildlife?

All three components of the definition are necessary to meet the regulatory definition of “harm” as a form of take through habitat modification under section 9, with the “actual killing or injury of wildlife” as the most significant component of the definition.

Id. at 4 (emphasis added). The agency’s focus on actual killing of or injury to wildlife makes it clear that the “harm” prohibited by the ESA’s “take” prohibition must be a significant threat to the species involved and not some minor disruption or effect.