Are you gearing up to start construction on your private land? All may be well…except…well you know there’s a habitat of Key Deer nearby and you need an incidental take permit.
It’s not your fault that they’re endangered because of hunting, habitat loss, disease, illegal feeding by humans, car accidents, climate change, and a dozen other things.
However, your construction could very well impact them and result in an incidental take.
Regardless of how unintentional this is, anyone who believes their otherwise-lawful activities will result in the death of an endangered species will need an incidental take permit.
Here’s what you need to know about what is and how you can help you.
1. What is an incidental take permit?
An incidental take permit is a permit issued to any private landowner, corporate, state government, local government, or other non-federal landowner that wishes to conduct activities on their land that may affect an animal species listed as either threatened or endangered under the federal Endangered Species Act.
The party is not able to take any action without the permit.
2. What does “take” mean under the Endangered Species Act?
“Take” under the Endangered Species Act means…
Harm
Harass
Pursue
Hunt
Shoot
Wound
Kill
Trap
Capture
Collect
Attempt to engage in any such conduct
3. What is incidental take?
The incidental take means the unintentional but not unexpected taking as described above.
4. When are prohibitions in effect?
Take prohibitions are in effect whenever a species is listed as endangered.
When a species is classified this way, the species is protected under ESA Section 9.
If the species is simply listed as threatened, then protective regulations may be extended to prevent take prohibitions on species under ESA Section 4(d).
5. When do you need an incidental take permit?
Sometimes knowing when you need an incidental take permit is half the battle.
Here are some questions that can help you determine if you should go through the permit application process.
Are there ESA-listed species present in the area where your activity will occur, or will these species be present at some point in the duration of your activity?
If yes, go to the next question.
If no, you do not need a permit.
Is it likely that any ESA-listed species will be exposed to your activities (construction, operation, maintenance, etc.) or the results of your activities during the various phases?
If yes, go to the next question.
If no, you do not need a permit.
If your activity overlaps or encounters the ESA-listed species at some point, will that exposure result in any of the following actions to the species: pursuing, hunting, wounding, shooting, killing, capturing, trapping, collecting, attempting to engage, etc.?
If yes, you most likely need an incidental take permit.
If no, proceed to the next question.
Is your activity likely to harass an ESA-listed species? Is your activity an intentional or negligent act or omission that will likely annoy the listed species to an extent that it can cause injury or significantly disrupt normal behavior patterns (ex: breeding, feeding, sheltering, etc.)?
If yes, this take is not permitted even with a permit because it’s not “incidental.”
If no, then proceed to the next question.
Is your activity likely to result in an act that injures or kills an ESA-listed species?
If yes, you likely need a permit.
If no, proceed to the next question.
Is your activity likely to harm an ESA-listed species through habitat modification? You should ask yourself: is my activity likely to result in significant habitat modification or degradation? Will that modification or degradation significantly impair essential behavior patterns, including breeding, feeding, and sheltering? Because of the first two questions, is it likely that there will be an actual injury or death to a listed species?
If yes to those three questions, you can anticipate a take through habitat modification and thus will require a permit.
If no, then you haven’t satisfied the definition of harm via habitat modification.
A potential applicant must decide whether their actions are likely to result in the take of an ESA-listed species.
The questions above can be helpful guidance in this process.
6. How do you get an incidental take permit?
You must apply for an incidental take permit by submitting an application.
While you can submit online, you may also need to send in a physical copy.
Here is a broad overview of the process.
First, title your application with one of the two titles:
Application for an Individual Incidental take Permit under the Endangered Species Act of 1973
Application for a General Incidental take Permit under the Endangered Species Act of 1973
Next, you should be sure to date your application and include all the following information:
Name
Address
Telephone and fax number
Be sure to include any applicable details for a company, organization, or corporate entity.
Then, you must detail the endangered or threatened species by both common and scientific names.
You should also include a description of their status, distribution, habitat needs, feeding habitats, and more.
Follow up by providing a detailed description of your proposed activity.
This is where you’ll tell the application committee what you plan to do, so they’re able to analyze it by its potential impacts.
Make sure you include the following information:
A description of the types of equipment used
A description of how equipment is used and deployed
How the equipment interacts with the physical and biological environment
Which components of the activity may result in take
Which components are not expected to result in take and the reasons why they will not likely result in a take
Pictures and/or diagrams of the vessels and/or equipment to be used
Afterward, your application should get specific about the time and place.
For example, anticipated dates, duration, and specific locations of the activity should be included.
This should be as precise as possible (down to the latitude and longitude coordinates if possible).
You should also be sure to note the dates, frequency, duration, and important seasonal issues for different components of your activity.
Furthermore, your application must include a conservation plan based on scientific and commercial data.
You should also note the anticipated impact that the proposed activity will have on the habitat of the species as well as the likely restoration of the affected habitat.
You should note whether you anticipate physical damage, impacts to prey species, barrier movement through or within a constricted area, or any other anticipated impacts.
Later, you should address the steps that will be taken to avoid, minimize, monitor, and mitigate the impacts you anticipate.
Examples of these steps include using specialized equipment, having detailed monitoring plans, or utilizing funding available to implement measures.
Be sure to mention any alternatives that you considered during your research project and why you are not using them.
Finally, you should include a list of all the sources that you used to prepare the plan.
These sources could be anything from data and reference reports to impact statements and environmental assessments.
7. What happens after you submit your incidental taken permit?
Depending on the kind of creature impacted, either the National Oceanic and Atmospheric Administration (NOAA) Fisheries or United States Fish and Wildlife Service (FWS) team will review the information you submitted in your application (including your Habitat Conservation Plan) and determine whether your application is complete.
It is up to their discretion whether to issue a permit for proposed activities.
Note: FWS has jurisdiction over land and freshwater species while NOAA is responsible for marine species.
NOAA or FWS may also request that you provide additional information if they require more to make their decision or if you left something out in your application.
Once your application is accepted, they’ll post it on their website and publish a notice in the Federal Register.
There, public comments will be solicited on the justification of the incidental take.
Before a decision is made, all comments will be reviewed, and you will have an opportunity to respond to substantive comments.
Ultimately, the Director of the Office of Protected Resources will decide to issue or deny the permit based on several factors.
These factors include:
The application you submitted
Public and expert comments
Your responses to those comments
The environmental analyses of the requested activities
If it’s decided that a permit should be issued, NOAA of FWS will indicate its status and post it on the incidental take permit webpage.
8. What should you do after you’ve received your permit?
You are able to use your incidental permit for the purposes it was issued until the specified expiration date.
You will be required to make an annual report on your incidental take.
9. How long is an incidental take permit valid?
It depends on the type of permit and the specific situation.
For example, in the case of an eagle incidental take permit, short-term permits can be issued for up to 5 years.
On the other hand, long-term incidental take permits may be valid for 5 to 30 years.
10. Who are the identified personnel on incidental take permits, and what are they authorized to do?
Principal Officer: If you applied on behalf of your organization, then you should have identified a Principal Officer who is the person in charge of the organization.
They are also responsible for the application as well as any permitted activities.
Primary Contact: This person should be available to answer any questions about the application or permitted activities.
In some cases, they may be the same as the Principal Officer.
This role isn’t listed on the application unless a subpermittee is also present.
Subpermittee: This individual is authorized to conduct some or all the activities without the permittee present.
You must identify any subpermittees in your application, and they must have a copy of the permit that identifies them as a subpermittee or a copy of your permit with a letter from the Principal Officer listing activities they are authorized to conduct.
These individuals must be at least 18 years of age.
11. How much does an incidental take permit cost?
When applying for a new incidental take permit or to renew/amend an existing valid permit, you must pay a $100 application processing fee.
The total cost, however, will depend on the nature of the permit.
Expect to pay at least a few thousand dollars.
12. What is the benefit of an incidental take permit and Habitat Conservation Plan (HCP) to a private landowner?
You may think that nothing is stopping you from using your land exactly how you’d like to, but it is illegal to take a listed species.
Therefore, the permit allows you to legally proceed with your desired activity.
13. What are the “No Surprises” assurances?
The “No Surprises” assurances are regulations developed by the government to protect private landowners in unforeseen circumstances.
If these circumstances arise, the Service will not require the commitment of additional land, water, or financial compensation nor the additional restriction on the use of land, water, or other natural resources beyond the level otherwise agreed to in the HCP without the consent of the permittee.
The government must continue to honor these assurances as long as the landowner/permittee is implementing their HCP in good faith.
In other words, the government will continue to honor its commitment if the permittee honors theirs.
14. Are incidental take permits required for endangered plant species?
No, there are no federal prohibitions under the ESA for the take of listed plants on private lands.
The exception is if those plants are taken in violation of state law.
That said, before the Service issues a permit, they will analyze the effects of doing so on any listed plants in the area.
This is because section 7 of the ESA requires that the issuance of an HCP permit must not jeopardize any listed species (including plants).
Final Thoughts
Depending on where you live and what you want to do with your land, you may need to get an incidental take permit.
The purpose of this process is to authorize the incidental take of a protected species.
However, its purpose isn’t to authorize the activities that result in that take.
So, for example, getting an incidental take permit won’t replace the construction permits you’ll need from your municipal government.
Make sure you go through both processes!
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.
Prior to starting Gokce Capital, Erika received a Bachelor of Architecture from the University of Southern California and a graduate degree in Urban Policy from Columbia University. She worked as both an architectural designer and engineer in New York before joining the New York City Department of Housing Preservation and Development.
Erika currently lives in the New York Metropolitan area with her spouse, daughter and cat. She is originally from Chicago and still considers herself a midwesterner at heart.
Erika also loves to read, write and travel (fun fact, she has visited all 50 states and more than 30 countries!). Her new book, Land Investing Mistakes: 11 True Stories You Need To Know Before Buying Land, is now available on Amazon.