Conserving the Nature of America
Services Finalize Revisions to Endangered Species Act Regulations Governing Incidental Take Statements

May 1, 2015


Vanessa Kauffman

Kate Brogan

As part of their ongoing efforts to improve implementation of the Endangered Species Act (ESA), the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (the Services) are finalizing the regulations governing Incidental Take Statements (ITSs) for endangered species. The final rule will clarify and codify the current policy of the Services regarding the use of “surrogates,” and address recent court decisions related to ITSs for “programmatic” federal actions.

The ESA directs all federal agencies to conserve endangered and threatened species. Under section 7 of the ESA, federal agencies must consult with the Services to ensure their actions, including those they fund or authorize, are not likely to jeopardize the existence of any listed species.

ITSs accompany biological opinions that are produced as part of the consultation process. They express the amount or extent of anticipated “take” (e.g. death, injury, harm, or harassment) of listed species caused by the proposed action and provide an exemption from the ESA section 9 prohibitions on such take.

Incidental take can take many forms, not all expressible as direct or immediate injury or death to individual animals. Some take can be in the form of a decrease in biological fitness due to reduced ability to breed or a shortened lifespan. Further, the biology of a listed species or the nature of the proposed action can make it impractical to detect or monitor take of individual animals. In these cases, evaluating impacts to a “surrogate” (e.g., habitat, ecological conditions or similarly affected species) may be the most reasonable and meaningful way to describe the amount or extent of anticipated take of listed species.

Therefore, the Services are codifying the use of surrogates, in appropriate circumstances, to express the anticipated amount or extent of incidental take. The changes will also allow for flexibility in how the Services prepare ITSs in situations where assessing and monitoring take of endangered or threatened species may be extremely difficult.

In addition, the Services are utilizing their authority to determine when it is appropriate to issue an ITS for certain federal actions that do not immediately result in take of listed species, but provide a framework under which future take may occur. Such “framework programmatic actions” establish a structure for the development of a future activity but do not directly authorize those activities. As a result of this final rule, an ITS will be provided at the point when future activities that result in take are authorized and subsequent consultation for those activities occurs. However, this does not change the need to consult under section 7 of the ESA when an action may affect listed species or their designated critical habitat.

This rule also codifies the standard for issuing an ITS when take is “reasonably certain to occur.” This is not a new standard, merely a clarification of the applicable standard that the Services have already been using and is consistent with prior case law.

The rule is consistent with Executive Order 13563, which calls for a retrospective analysis of existing rules to make the agency’s regulatory program more effective and less burdensome in achieving the regulatory objectives, and was included in the Department of the Interior's Final Plan for Retrospective Regulatory Review.

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The final rule was delivered to the Federal Register today May 1, 2015. The final notice will be available upon publication in Federal Register at by clicking on the 2015 Final Rules link under Endangered and Threatened Wildlife and Plants.

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