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ENDANGERED SPECIES ACT--SECTION 10 INCIDENTAL TAKE PERMITS
Jurisdiction | United States |
(Apr 2012)
ENDANGERED SPECIES ACT--SECTION 10 INCIDENTAL TAKE PERMITS
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...
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- Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S. (FNREL)
- TABLE OF CONTENTS
- CHAPTER 1 NEPA BASICS AND INTERRELATIONSHIP WITH OTHER ENVIRONMENTAL LAWS
- CHAPTER 2 THE NATIONAL HISTORIC PRESERVATION ACT'S SECTION 106 PROCESS, RESOLVING ADVERSE EFFECTS ON HISTORIC PROPERTIES, AND BLM'S REVISED NATIONWIDE PROGRAMMATIC AGREEMENT
- CHAPTER 3 CULTURAL RESOURCES MANAGEMENT--TRIBAL RIGHTS, ROLES, CONSULTATION, AND OTHER INTERESTS (A DEVELOPER'S PERSPECTIVE)1
- CHAPTER 4 NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)
- CHAPTER 5 LAKE POWELL PIPELINE PROJECT: TRADITIONAL CULTURAL PROPERTIES DESIGNATION AND PROTECTION OF KAIBAB PAIUTE TRIBAL RESOURCES
- CHAPTER 6 MAN OVER MATTER--ARPA, PRPA, AND SOME KEY DIFFERENCES BETWEEN THEM
- ENDLESS WAR OR END THIS WAR? THE HISTORY OF LITIGATION UNDER SECTION 4 OF THE ENDANGERED SPECIES ACT AND THE MULTI-DISTRICT LITIGATION SETTLEMENTS
- LISTING AND CRITICAL HABITAT DECISIONS AND RELATED ISSUES UNDER SECTION 4 OF THE ENDANGERED SPECIES ACT
- TAKE UNDER THE ENDANGERED SPECIES ACT
- ENDANGERED SPECIES ACT--SECTION 10 INCIDENTAL TAKE PERMITS
- CHAPTER 9 CANDIDATE CONSERVATION AGREEMENTS AND CANDIDATE CONSERVATION AGREEMENTS WITH ASSURANCES UNDER THE ESA
- IT'S FOR THE BIRDS--RECENT DEVELOPMENTS UNDER THE MIGRATORY BIRD TREATY ACT AND BALD AND GOLDEN EAGLE PROTECTION ACT1
- MIGRATORY BIRD TREATY ACT
- CHAPTER 11 FEDERAL REGULATION OF NON-LISTED WILDLIFE
- CHAPTER 12 CLEAN WATER ACT PERMITTING OVERVIEW: SECTIONS 402 AND 404
- CHAPTER 13 SIX YEARS AFTER RAPANOS--WHAT'S CHANGED? (ANSWER: NOT MUCH)
- CHAPTER 14 USE OF NATIONWIDE 404 PERMITS
- CHAPTER 15 LEDPA: THE LEAST ENVIRONMENTALLY DAMAGING PRACTICABLE ALTERNATIVE UNDER SECTION 404(B)(1) OF THE CLEAN WATER ACT
- CHAPTER 16 ETHICAL ISSUES FOR GOVERNMENT LAWYERS AND PRIVATE PRACTITIONERS WORKING ON PERMITTING AND OTHER ACTIONS INVOLVING FEDERAL AGENCIES
- CHAPTER 17 THE NEPA PROCESS: WHAT DO WE NEED TO DO AND WHEN?
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