On April 26, 2018, the U.S. Fish and Wildlife Service ("FWS") issued a memorandum addressing the need for an incidental take permit ("ITP") under the Endangered Species Act (ESA) for the modification of listed species' habitat ("ITP Memo"). As background, under the ESA, the "take" of an endangered species is prohibited. This prohibition has been extended to threatened species through a blanket 4(d) rule. In certain circumstances, take that is not purposeful and occurs incidental to some other action can be authorized through the issuance of an ITP.
As defined in the ESA and in FWS's regulations, take includes harming or harassing a species where such impacts have the potential to cause a significant adverse effect on the species. In some instances, impacts to the habitat of a listed species have been determined to be so significant that they cause the take of that species, and ITPs have been issued to address such habitat impacts. However, the amount of habitat modification that rises to the level of "take" has not always been applied consistently by various FWS regions.
Signed by Principal Deputy Director Gary Sheehan and directed to all the Regional Directors, the ITP Memo seeks to provide consistent, clear guidance to potential permittees on whether and when habitat modification would trigger the need for an ITP as a "take." As an initial matter, the ITP Memo makes clear that the decision whether to obtain an ITP is that of the applicant. FWS staff are not authorized to require an ITS for habitat modification. Instead, the ITP Memo emphasizes that it is the applicant's responsibility to assess the risk of a project's threat to nearby listed species. FWS staff are to act in an advisory role.
The ITP Memo then considers the level of habitat modification necessary to constitute a take under the ESA, and therefore warrant an ITP. After reviewing the FWS's past changes in the interpretation of the term "harm," the ITP Memo specifies that, in a habitat modification context, the term is limited to modifications that "significantly impair essential behavior patterns," so as to result in "actual injury" to the listed species. Moreover, the ITP Memo suggests that to qualify as harm, permanent impairment of listed species' essential behavior patterns is necessary, not just temporary effects, citing to 46 Fed. Reg. 54748 (Nov. 4, 1981).
The ITP Memo lays out three explicit elements that applicants should evaluate to determine whether a project will harm a species under the ESA:
- Is the modification of habitat significant?
- If so, does that modification also significantly impair an essential behavior pattern of a listed species?
- And, is the significant modification of the habitat, with a significant impairment of an essential behavior pattern, likely to result in the actual killing or injury of wildlife?
According to the ITP Memo, if the habitat modification associated with the project does not affect a listed species in all three of these ways, then it will not be considered to harm a species and, as such, an ITP is not needed.
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