ENDANGERED SPECIES ACT--SECTION 10 INCIDENTAL TAKE PERMITS

• Jurisdiction: United States

Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)
CHAPTER 8B
ENDANGERED SPECIES ACT--SECTION 10 INCIDENTAL TAKE PERMITS
Dave Ross
Crowell & Moring LLP
Washington, DC

DAVE ROSS is a counsel in Crowell & Moring's Energy, Environment & Natural Resources Group. He is located in the firm's Washington, D.C. office. Dave's practice involves client counseling and litigation in all areas of environmental and natural resources law, but focuses a significant portion of his practice on the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act. Dave is a graduate of Vermont Law School and the University of Wisconsin-Madison. Prior to law school, he worked as an environmental consultant in San Diego, California, focusing on water reclamation projects.

Federal Regulation Special Institute

Denver, CO

April 26, 2012

Dave Ross

Crowell & Moring LLP

Washington, DC

dross@crowell.com / 202.624.2682

Roadmap

• ESA § 9 "Take" Prohibition

• ESA § 11 Enforcement

• ESA § 10 "Incidental Take" Permits

• Habitat Conservation Plans

• Trends

• Parting Thoughts

[Page 8B-2]

ESA § 9 "Take" Prohibition

• ESA § 9(a)(1)(B) makes it "unlawful" to "take" an "endangered species of fish or wildlife" in any area subject to U.S. jurisdiction. 16 U.S.C. § 1538(a)(1)(B).

• "The term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).

• "Harm" means "an act which actually kills or injures wildlife." That can include "significant habitat modification or degradation were it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3.

— "Harm" has been narrowly construed, and requires proof that (1) there is or will be death or actual injury (2) to an identifiable member of a listed wildlife species (3) that is proximately caused by the action in question. Babbitt v. Sweet Home, 515 U.S. 687 (1995).

ESA § 9 "Take" Prohibition

What about "threatened" species?

• ESA § 4(d) grants FWS the discretion to extend take prohibitions to less-imperiled "threatened species." 16 U.S.C. § 1533(d).

• FWS has presumptively done that for all threatened species, but has reserved the right to create special rules for particular species when necessary. 50 C.F.R. § 17.31.

• ESA § 9(a)(1)(G) makes it unlawful to violate any rule relating to threatened species. 16 U.S.C. § 1538(a)(1)(G).

• Thus, the "take" prohibition effectively applies to threatened species.

[Page 8B-3]

ESA § 9 "Take" Prohibition

What about listed plants?

• ESA § 9 broad "take" provision does not apply.

• Cannot remove or destroy listed plants on federal lands. 16 U.S.C. § 1538(a)(2)(B).

• Cannot remove or destroy listed plants on other lands in knowing violation of an applicable state law or while committing a criminal trespass under state law. 16 U.S.C. § 1538(a)(2)(B).

ESA § 11 Enforcement

• Civil Penalties-ESA § 11(a)

— Maximum $25,000...