USFWS Guidance Clarifies Trigger for ESA Incidental Take Permits Tied to Habitat Modification

by Nossaman LLP
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U.S. Fish and Wildlife Service (USFWS) Principal Deputy Director Greg Sheehan recently issued a guidance memorandum to USFWS’ Regional Directors to clarify the appropriate trigger for an incidental take permit (ITP) under the Endangered Species Act (ESA).  While this guidance was directed internally to USFWS staff to aid in determination of whether project-related habitat modification is likely to result in “take” of a listed species, it also serves as a tool for project proponents to determine whether to seek an ITP and whether to cover a given species in that ITP.

The guidance provides general instructions applicable to all ITPs, regardless of whether they permit direct take or take due to habitat modification. The guidance emphasizes that the decision to pursue an ITP or whether to cover a species is the project proponent’s choice to make.  For example, the guidance recognizes that it is “vital that [USFWS] staff recognize that whether to apply for an [ITP] is a decision of the applicant” and directs staff to not use mandatory language (e.g., a permit is “required”) when communicating with non-federal parties.  Further, the guidance recognizes that “[t]he biological, legal, and economic risk assessment regarding whether to seek a permit belongs with the private party determining how to proceed.”  Finally, USFWS staff is directed to proactively advise potential applicants that an ITP is only appropriate when an activity is likely to result in the “take” of ESA-listed wildlife and that it is the potential applicant’s decision whether to apply for an ITP.

Additionally, the guidance provides that habitat modification, in and of itself, does not constitute “take” unless the three components of “harm” are met. Thus, in order to find that habitat modification constitutes an incidental take of listed species, the following questions must all be answered in the affirmative:

  1. Is the modification of habitat significant?
  2. Does that modification also significantly impair an essential behavior pattern of a listed species?
  3. Is the significant modification of the habitat likely to result in the actual killing or injury of wildlife?

These principles are consistent with the USFWS Habitat Conservation Planning Handbook and prior case law. However, as a point of departure from prior interpretation, the guidance also reasons that ITPs cannot authorize “take” that occurs from activities that “harass” a listed species because harassment is not “incidental.”

Attached to the guidance memorandum is a questionnaire for potential ITP applicants and a flowchart.  Both attachments are intended to assist USFWS staff and potential applicants in determining whether an ITP may be advisable for a given activity or project.

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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