[co-author: Ryan Laws - summer associate]
On April 12, 2024, the U.S. Fish and Wildlife Service (Service) published notice in the Federal Register of a final rule (89 Fed. Reg. 26070) that amends regulations regarding the issuance of enhancement of survival and incidental take permits under the Endangered Species Act. The new rule clarifies the activities and species that the Service may cover under those two permits, and it simplifies the requirements for the enhancement of survival permits. The Service purports that these changes will simplify the process for permit applications, which will have the effect of reducing time and costs associated with applying for a permit.
The Endangered Species Act
The Endangered Species Act of 1973 (ESA) provides protection for plant and animal species whose populations are reduced to critical levels. The ESA provides a process for listing species as threatened or endangered, and prohibits persons from taking such species. Section 10 of the ESA provides a mechanism for permitting the take of listed species under certain circumstances. To secure permit coverage, the property owner or project proponent can obtain either (1) an enhancement of survival permit or (2) an incidental take permit.
- Enhancement of Survival Permits
The Service may issue an enhancement of survival permit to except actions otherwise prohibited by the ESA when there is a scientific purpose that might benefit the species or when an action would enhance the affected species even if the actions might cause a taking. Enhancement of survival permits have the intended effect of increasing the species’ population. To receive a permit, the applicant must specify how it intends to enhance survival of a species by engaging in a separate agreement with the Service.
Prior to this final rule, there were two agreements that a permit applicant could negotiate with the Service to secure an enhancement of survival permit: (1) a Safe Harbor Agreement (SHA) or (2) a Candidate Conservation Agreement with Assurances (CCAA). Those agreements were beneficial for the applicant because the Service would not impose further management responsibilities on a permit holder so long as the permit holder fulfilled its conditions contained in the agreement.
- Incidental Take Permits
The Service may issue an incidental take permit if the taking is incidental to the carrying out of an otherwise lawful activity. Generally, property owners or project proponents seek these permits to carry out development in areas where there is a listed species. Incidental take permits are accompanied by a conservation plan that specifies how the permit holder will mitigate harm to the covered species.
The Final Rule
The final rule amends provisions related to both enhancement of survival permits and incidental take permits. Key changes include:
The Service expanded eligibility for permits by dropping the requirement that an applicant must include a covered species. Applicants can now seek permits earlier than previously available. In the past, the Service required applicants to specify a listed species that would be affected by their actions. Now, an applicant does not need to name a listed species in its application to apply for a permit—allowing an applicant to apply for a permit before a species becomes listed under the ESA. The Service predicts that this change will further conservation efforts consistent with the goals of the ESA and incentivize more landowners to voluntarily enter into conservation agreements prior to the need of listing a species.
The Service clarified what planning activities necessitate the proper permit. The Service clarified how to determine what exceptions permit is best for the applicant’s intended actions. If the applicant will be taking for scientific purposes, or to enhance an affected species, then the enhancement of survival permit is the appropriate permit. For an enhancement of survival permit, the nature of the applicant’s activities are actions that improve conditions for the species. If the prospective applicant is planning activities that would incidentally cause a take, then an incidental take permit is the appropriate permit. For an incidental take permit, the nature of the applicant’s activities are ones focused on minimizing effects to the species while the applicant carries out its otherwise lawful activities.
The Service simplified the enhancement of survival permit process and expanded the types of actions that can be covered under the permit. The agreements associated with an enhancement of survival permits are more streamlined under the final rule. The final rule replaces both the SHAs and CCAAs with a new agreement called a Conservation Benefit Agreement. The Service purports that the change to one agreement, instead of a choice between two, simplifies the process because applicants no longer need to determine which agreement is needed. The Service predicts that this simplification will reduce the time and costs in the agreement planning process. The agreement retains the same benefits as the other two agreements; namely, participants receive assurance that the Service will not impose additional requirements so long as the participant implements the conditions contained within the agreement.
The Service also clarified the types of actions that can be covered under an enhancement of survival permit. For those already in possession of an enhancement of survival permit, the Service clarified that the permittee may take actions that would return the property back to baseline conditions—meaning the property owner would return the property to previous conditions of like species population numbers and similar habitat area from when the property was initially enrolled in the permit program. Further, the Service clarified that enhancement of survival permits may allow for purposeful and incidental takings that result from implementing a Conservation Benefit Agreement.
The Service clarified that incidental take permits only authorize takings. Compared to the changes to the enhancement of survival permits, the changes to the incidental take permitting program are less significant. The Service clarified that the granting of an incidental take permit does not authorize the lawful activity that the landowner would like to conduct; the permit only authorizes the taking of the species. The Service predicts that this change does not necessarily impact permit holders; the clarification mostly impacts commenters on prospective permits because it distinguishes the project or activity, which the permit cannot authorize, from the taking of the listed species, which the permit would authorize.
The Service clarified permit application procedures and the process for a permit application to be deemed complete. The Service clarified that the application process for enhancement of survival and incidental take permits happens in three phases. In the first phase, a prospective applicant should determine whether it wants to pursue one of the permits and, if so, what permit it will apply for. In the second phase, the applicant will develop and submit a Conservation Benefit Agreement or conservation plan. In the third phase, the applicant will submit a completed application for the permit and the Service will review the application and come to a final permit decision.
The Service also clarified when an application is considered complete so that the Service can timely process applications. Before the final rule, the application requirements were not listed, and that was causing confusion and delays in processing for both applicants and the Service. The final rule lists the required application components. The Service predicts that clearly describing the application requirements will have the effect of streamlining and reducing confusion related to the application. The Service believes this will help to reduce the costs and time needed to research, write, and submit a permit application.
Conclusion
This final rule has the potential to expand eligibility to more project proponents and landowners who might be interested in applying for a permit to take listed species under the ESA. This final rule may also reduce the time and costs associated with applying for these permits. Please contact us if you have specific questions about how this final rule may affect your existing or proposed project(s) or if you would like assistance preparing applications for a permit and its respective agreement.
