What New FWS Take Guidance Means For Permit Applicants

By Wayne Whitlock, Norman Carlin and Eric Moorman (June 22, 2018, 1:09 PM EDT) -- On April 26, 2018, the U.S. Fish & Wildlife Service issued new guidance to its regional directors to facilitate the evaluation and negotiation of Endangered Species Act Section 10(a)(1)(b) incidental take permits, or ITPs, with private parties proposing activities that involve modification of endangered species habitat. The guidance has significant implications for private project proponents considering whether to undertake the often time-consuming and costly process of seeking an ITP and preparing a habitat conservation plan, or HCP, in support of that application. Acknowledging the importance of understanding what constitutes "take" of a listed species in deciding whether an ITP is needed, the guidance emphasizes that habitat modification is not considered take unless it is "likely" to result in the actual death or injury of listed wildlife. Further, the guidance clarifies that the decision whether to apply for a permit is up to the applicant and prohibits agency staff from asserting that a permit is mandatory....

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