When Should Landowners Seek Permits for “Incidental Taking” of Endangered Species?
Questions often arise whether land use and development activities would modify wildlife habitat in ways that “take” endangered species. The U.S. Fish and Wildlife Service has published a guidance memorandum explaining what landowners should consider when deciding whether they should apply to the Service for permits authorizing the “incidental take” of endangered species under the Endangered Species Act. As the guidance largely tracks existing law, it may serve as a handy resource for landowners and others in the regulated community. As the Service intends, it may serve as well to guide its staff to “apply correct and consistent interpretations” of the law.
Background
The Endangered Species Act (“ESA”) aims to protect and recover fish, wildlife, and plant species threatened with extinction. It calls on the National Marine Fisheries Service (for marine species) and U.S. Fish and Wildlife Service (for all other species) to list species determined to be threatened or endangered and generally prohibits any person from “taking” listed species without a permit. The Act defines “take” to include “harass, harm, [or] kill.” Service regulations elaborate that “harm” means “an act which actually kills or injures wildlife,” which “may include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
The Act provides the Services two ways to authorize such taking. First, it calls on all federal agencies to ensure that any actions they authorize, fund, or carry out are not likely to “jeopardize” the continued existence of any listed species or result in the “destruction or adverse modification” of designated “critical habitat” of any such species. Toward this end, whenever a federal agency’s action “may affect” listed species or critical habitat, the agency must “consult” with the pertinent Service about that action. The consultation generally leads to the Service issuing a “biological opinion” whether the action would jeopardize a species or adversely modify its critical habitat. The Service also assesses whether the action would result in taking members of the species, and, if so, it includes an “incidental take statement” prescribing measures to minimize the effect of the take. If the federal agency and its permittees act in compliance with those measures, then any take resulting from the activities is not prohibited.
Second, apart from federal agencies, anyone not seeking any other federal permit that would trigger consultation may seek authorization directly from the Service to take listed species as long as the taking is “incidental” to an otherwise lawful activity. An applicant for an “incidental take permit” must submit a “habitat conservation plan” that specifies the impact likely to result from the taking, steps the applicant will take to minimize and mitigate such impacts and the funding that will be available to implement those steps, alternative actions the applicant considered and the reasons those alternatives were not utilized, and such other measures that the Services may require as necessary or appropriate for purposes of the plan.
Guidance Memorandum
Aiming to assure that advice offered by Service staff on the need for incidental take permits is “correct and consistent,” the Service issued a guidance memorandum on April 26, 2018, to its several regional directors.
Emphasizing that it is “vital that Service staff recognize that whether to apply for [an incidental take permit] is a decision for the applicant,” the Service instructs that in advising prospective applicants “it is not appropriate to use mandatory language (e.g., a permit is ‘required’).” “Project proponents,” the Service explains, “can take Service input into account and proceed in a number of ways, based upon their own risk assessment,” including “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 Service then advises (seemingly inconsistent with its own instruction) that an incidental take permit “is only needed in situations where a non-federal project is likely to result in ‘take’ of a listed species.” The Service elaborates that, as explained in its Habitat Conservation Plan Handbook, “the standard for determining if activities are likely to result in incidental take is whether the take is ‘reasonably certain to occur.’” The Service could have more plainly clarified that no regulation prescribes when an incidental take permit is “required” or “needed” and each project proponent is free to assess the likelihood or risk of take and choose whether to seek such a permit; but if a project proponent proceeds without a permit in circumstances where the Service believes a prohibited take is reasonably certain to occur, the Service may ask a court to enjoin the project and need not wait for a take actually to occur before doing so. In any such suit, the Service naturally would have the burden of persuading the court that a take is reasonably certain to occur, and the project proponent may dispute that claim.
Recognizing that understanding what constitutes “take” is essential to assessing whether to apply for an incidental take permit, the Service helpfully summarizes some of the pertinent law. “[H]abitat modification, in and of itself does not necessarily constitute take,” the Service confirms. The question is whether habitat modification has caused “harm” to listed species. The Service observes that by earlier defining “harass” to refer only to “intentional or negligent actions” of a sort not suitable for incidental take permits it had “moved the concept of environmental modification or degradation from ‘harass’ to the term ‘harm.’” “Harm,” the Service continues, may include habitat modification, but the “modification must be significant, must significantly impair essential behavioral patterns, and must result in actual injury.” (Emphasis in original.) “All three components of the definition,” emphasizes the Service, “are necessary to meet the regulatory definition of ‘harm’ as a form of take through habitat modification under [the ESA], with the ‘actual killing or injury of wildlife’ as the most significant component of the definition.”
Conclusion
By its guidance, the Service appears to strive for some measure of consistency and adherence to its interpretation of the ESA by its staff in field offices around the nation. The guidance serves as well to inform members of the regulated community of the Service’s interpretation and afford them a framework for discussions with Service staff about whether incidental take permits are warranted. The guidance may prove useful as well in any discussions between landowners, state and local agencies, lenders, prospective buyers, etc., about whether circumstances warrant incidental take permits.
David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
