Endangered Species Act Section 10 Incidental Take Permit (12-FD-d)
Section 10 authorizes the Services to issue permits allowing for the incidental take of threatened or endangered species, which would otherwise be prohibited under the Endangered Species Act, 16 U.S.C. § 1538. An Incidental Take Permit does not authorize the underlying activities that may result in a take.
A developer who applies for an incidental take permit is required to submit a Habitat Conservation Plan (HCP) to the Services. The HCP specifies the impacts that are likely to result from the taking and the measures the permit applicant (i.e., the developer) will undertake to minimize and mitigate such impacts. 16 U.S.C. § 1539(a)(2)(A).Note: A Section 10 Incidental Take Permit is only available for non-federal activities.
Endangered Species Act Section 10 Incidental Take Permit Process
12-FD-d.1 - Coordinate with Appropriate Endangered Species Office
A developer should consult with the appropriate regional Services office to determine if a proposed project has the potential to affect threatened or endangered species. During consultation, if it is determined that a an action may result in the incidental take of a threatened or endangered species, the developer should submit an application for an Incidental Take Permit to the Services. U.S. Fish and Wildlife Service - Habitat Conservation Plan Fact Sheet.
Note: For onshore renewable energy and transmission development projects, the appropriate agency will likely be the USFWS.
12-FD-d.2 - Initiate Development of Habitat Conservation Plan (HCP)
A developer should initiate the development of a Habitat Conservation Plan (HCP) to submit to the Services along with the application for an Incidental Take Permit. The USFWS will provide technical assistance and advice during the HCP development phase; however, the developer is responsible for drafting the HCP. Generally, developers should include all federally listed wildlife species likely to be incidentally taken during the life of the project or permit. In addition, the developer may include any candidate species, or species which are proposed for listing and are likely to be incidentally taken during the project. U.S. Fish and Wildlife Service - Habitat Conservation Plan Fact Sheet.
Note: Developers should also include listed plant species in their HCP. U.S. Fish and Wildlife Service - HCP Handbook - Chapter 3. While Section 9 of the ESA does not prohibit the taking of listed plants, Section 7 consultation (on a Section 10 permit) requires that the permit does not jeopardize the existence of a listed plant species. 16 U.S.C. § 1538; 16 USC 1536(a)(2).
12-FD-d.3 - Consult/Negotiate with USFWS to Determine Scope and Complexity of HCP
The developer should consult with the appropriate regional Services office to determine the scope and complexity of the HCP. The process for developing an adequate HCP is the most time-consuming phase of the Section 10 process. Developers should engage with the USFWS as much as practicable in order to determine how much information developers need include in the HCP, based in part on the complexity of the specific issues associated with the land and species in question. U.S. Fish and Wildlife Service - HCP Handbook - Chapter 3.
12-FD-d.4 - Form 3-200 Application; Copies of Approvals or Status of Applications and Final HCP
The developer should submit an application for an Incidental Take Permit, which includes the Final HCP to the Services. The application is available on the USFWS website here: Form 3-200 Permit Application. The application fee is $25 and requires information that identifies the:
- Location of activities,
- Underlying activity that may result in take, and
- Species sought to be covered by the permit.
12-FD-d.5 to 12-FD-d.6 - Review Application Materials for Completeness
The Services review the application for technical and substantive completeness. The Services will notify the developer if the application is substantively incomplete and allow the developer to resubmit any necessary information. U.S. Fish and Wildlife Service - HCP Handbook - Chapter 6.
12-FD-d.7 - Is the HCP Statutorily Complete?
The Services determine whether the HCP meets statutory issuance criteria under section 10(a)(2)(B) of the ESA. In order to pass statutory muster the HCP must identify:
- The impact which will likely result from such taking;
- What steps the developer will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;
- What alternative actions to such taking the developer considered and the reasons why such alternatives are not being utilized; and
- Such other measures that USFWS may require as being necessary or appropriate for purposes of the plan.
12-FD-d.8 - Complete Internal Section 7 ESA Consultation
The Services conduct an internal Section 7 Consultation to ensure compliance with the ESA after receiving the completed application and HCP.
Note: Whereas a development project with a federal nexus requires the developer to go through Section 7 ESA Consultation, here, where the project has no federal nexus, the Services must conduct Section 7 Consultation internally as part of the Section 10 process. Although the provisions of ESA section 7 and section 10 are similar, section 7 and its regulations introduce several considerations into the HCP process that are not explicitly required by section 10. Specifically, indirect effects, effects on federally listed plants, and effects on critical habitat. U.S. Fish and Wildlife Service - HCP Handbook - Chapter 1. The USFWS effectively completes an internal review of its own actions to ensure compliance with ESA Section 7.
12-FD-d.9 - Based on the HCP, is an EA or EIS Necessary?
The Services must determine whether the HCP requires that the developer prepare an EA or an EIS by evaluating whether the HCP is low-effect (e.g. the project has relatively minor or negligible impacts). To determine whether the HCP is low-effect, the Services complete a Low-effect HCP Screening Form. An HCP qualifies as low-effect if it results in:
- Minor or negligible effects on federally listed, proposed, or candidate species and their habitats covered under the HCP; and
- Minor or negligible effects on other environmental values or resources.
A low-effect HCP is categorically excluded from NEPA review. If the Services determine that the HCP is low-effect , the Services issue a Environmental Action Memorandum, which serves as a record of the Services compliance with NEPA for categorically excluded actions. The Environmental Action Memorandum must explain the Services reasons for concluding that the HCP has no individual or cumulative effects on the environment.
Most HCPs do not qualify as low-effect. If an HCP does not qualify as low-effect the Services must prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS). Most HCPs require an EA; however, HCPs that may result in significant individual or cumulative effects on the environment require an EIS. U.S. Fish and Wildlife Service - HCP Handbook - Chapter 5.
12-FD-d.10 - Publish Notice of Application in the Federal Register; Open for Public Comment
12-FD-d.11 to 12-FD-d.12 - Incidental Take Permit
If the Services determine, after considering public comment, that the HCP is statutorily complete and that permit issuance criteria have been satisfied, it issues the Incidental Take Permit. 16 USC 1539(a)(2)(B)
Upon issuance of the Section 10 Permit, the USFWS must publish notice in the Federal Register. 16 USC 1539(d).
12-FD-d.13 - Will the HCP Likely Have a Significant Impact on the Human Environment?
During the application processing phase, after determining that a HCP does not qualify as “low-effect,” the Services determine whether an EA or EIS is required. HCPs that are likely to have a significant impact on the human environment require an EIS. Otherwise, an EA is required. HCP Handbook - Chapter 5.
12-FD-d.14 - Prepare Draft Environmental Assessment
The Services must prepare the draft Environmental Assessment. The Services are ultimately responsible for NEPA compliance and must ensure the draft EA is prepared. However, in practice developers will assist in preparing the EA. In some cases developers may be best served (from a timing perspective) to prepare a joint HCP/EA from the outset. An example of a joint HCP/EA is provided: Integrated HCP/EA Example
12-FD-d.15 - Publish Notice of Application and EA in the Federal Register; Open for Public Comment
The Services publish notice of the EA and allow for public comment. Generally, the Services publish notice of the Incidental Take Permit application and the draft EA concurrently as the comment period for both notices is 30 days. 16 USC 1539(c); U.S. Fish and Wildlife Service - HCP Handbook - Chapter 5.
12-FD-d.16 - Will the HCP Have a Significant Impact on the Human Environment?
After the 30 day comment period the Services will either make a Finding of No Significant Impact (FONSI) or determine that an EIS is required. U.S. Fish and Wildlife Service - HCP Handbook - Chapter 5.
12-FD-d.17 to 12-FD-d.18 - Incidental Take Permit
If the Services make a Finding of No Significant Impact (FONSI), then the Services issue the Incidental Take Permit and publish notice of issuance in the Federal Register as described in 12-FD-d.11 to 12-FD-d.12 above after issuing a FONSI. HCP Handbook - Chapter 5.
12-FD-d.19 - Prepare Draft Environmental Impact Statement
For large-scale HCPs and/or HCPs that have a significant impact on one or more protected species, an EIS may be necessary. The Services are still ultimately responsible for NEPA compliance, however, the developer may still assist in preparing the required analyses and documentation.
Note: For larger scale HCPs that require an EIS, the Services may also require an Implementing Agreement that provides more detail regarding how the HCP will be carried out over time and further specifies the responsibilities of all parties involved. A template Implementing Agreement is provided for reference: Template Implementing Agreement.
12-FD-d.20 - Publish Notice of Application and EIS in the Federal Register; Open for Public Comment
The Services publish notice of the Incidental Take Permit application and allow for public comment. In addition, the Services publish notice of the EIS and allow for public comment. Generally, the Services publish both notices concurrently. Note that the comment period for an EIS is 45 days, thus extending 15 days after the comment period for an EA/HCP. 16 USC 1539(c); HCP Handbook Chapter - 5.
12-FD-d.21 - Prepare Final EIS
Based on any comments received during the 45 day period, the Services modify the draft EIS and prepare a final EIS.
12-FD-d.22 - Publish Notice of Availability of Final EIS in the Federal Register; Begin Waiting Period
As an additional step in the process unique to HCPs requiring an EIS, the Services must publish a notice of availability of the final EIS in the Federal Register and wait approximately 30 days. 550 FW 3 Documenting and Implementing Decisions.
12-FD-d.23 - Record of Decision
After the 30 day waiting period, the Services publish a Record of Decision that acts as a concise public record of the NEPA decision, including any conditions adopted for monitoring or enforcement. 550 FW 3 Documenting and Implementing Decisions.
12-FD-d.24 to 12-FD-d.25 - Incidental Take Permit
After completing the NEPA process, the Services issue the Incidental Take Permit and publish notice of issuance in the Federal Register as described in 12-FD-d.12 to 12-FD-d.13 above.
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