Services Propose New Regulations For Incidental Take Under the Endangered Species Act


On September 4, 2013, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) jointly proposed new regulations governing the issuance of "incidental take statements" (ITSs) under Section 7 of the Endangered Species Act (ESA). The purpose of these proposed regulations is to codify existing agency practices regarding the identification of take levels reported in ITSs. These practices have been the subject of a fair number of lawsuits in which environmental advocacy groups have attempted to hold the agencies to specific standards in enumerating and authorizing take in ITSs and have challenged the adequacy of authorized take levels.

The regulations authorize FWS and NMFS to use "surrogate" measures of incidental take when it is not possible to identify specific take numbers.  The proposed regulations clarify and set standards for the use of surrogates in ITSs. The proposed regulations also provide some clarity for programmatic ITSs.  Programmatic ITSs address large-scale management programs covering a number of activities but typically do not authorize specific numbers of take because the activities carried out under the program subsequently go through separate ESA consultations in which specific take numbers are authorized. The proposed regulations clarify that specific numbers need not be authorized in a programmatic ITS and also allow agencies to include certain “reasonable and prudent measures” in a programmatic ITS In lieu of establishing specific take levels.

Comments on the proposed rule are due November 4, 2013.

Finally, additional new proposed ESA regulations are expected this fall or winter.  The agencies have slated new rulemakings to address the ESA’s “adverse modification of critical habitat” standard as well as additional regulations applicable to the critical habitat designation process.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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