Endangered Species Act
Consultation and Project Reviews
The Fish and Wildlife Service’s Endangered Species program is responsible for reviewing actions that may affect federally listed species. Federal agencies are required to consult with the Fish and Wildlife Service regarding any activity that “may affect” federally listed species, pursuant to Section 7 of the Endangered Species Act. Federal actions include those that are authorized, funded, or carried out, in whole or in part, by a Federal agency. Non-federal activities are not subject to the consultation requirements of the Endangered Species Act; however, the Service frequently reviews non-federal actions to ensure they will not result in the “take” of federally listed species.
Section 9 of the ESA makes it illegal for any person subject to the jurisdiction of the United States to “take” any federally listed endangered or threatened species of fish or wildlife without a special exemption. “Person” is defined under the ESA to include individuals, corporations, partnerships, trusts, associations, or any other private entity; local, state, and Federal agencies; or any other entity subject to the jurisdiction of the United States. Under the ESA, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. Harm is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavior patterns such as breeding, feeding, or sheltering. Harass is defined as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering.
Section 10 of the ESA establishes an incidental take permit provision for non-federal entities that includes the development of habitat conservation plans. This provision authorizes the Service, under some circumstances, to permit the taking of federally listed fish and wildlife if such taking is “incidental to, and not the purpose of carrying out otherwise lawful activities.” This process is also intended to be used to reduce conflicts between listed species and private development and to provide a framework that would encourage “creative partnerships” between the private sector and local, state, and Federal agencies in the interest of endangered and threatened species and habitat conservation. When approved by the Service, this regulatory procedure results in the issuance of a permit authorizing incidental take, provided such take is mitigated by appropriate conservation measures for habitat maintenance, enhancement, and protection, coincident with development.