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U.S. Fish and Wildlife Service Publishes Regulations Governing Revocation of Incidental Take Permits


December 10, 2004

Brian Norris, 202-219-7499


The U.S. Fish and Wildlife Service today published in the Federal Register new regulations covering incidental take permits issued under the Endangered Species Act. The regulations describe circumstances in which the Service may revoke these permits.

The Service grants incidental take permits to landowners who have voluntarily agreed to develop Habitat Conservation Plans, or HCPs. These plans provide a framework for landowners to conserve threatened and endangered species on their property. In return, the permits give landowners authorization for incidental take of listed species resulting from otherwise lawful development or land use activities.

The regulations governing revocation of incidental take permits were first published in June 1999. But a U.S. District Court judge for the District of Columbia ruled the Service had violated the Administrative Procedure Act by failing to provide the public with an adequate opportunity to comment. To address the court ruling the Service:

  • Published a final rule on May 25, 2004, in the Federal Register withdrawing the permit revocation regulations that the court vacated (69 FR 29669).
  • Published a proposed rule on May 25, 2004, in the Federal Register providing notice to the public and requesting comments on the Service's proposed new regulations for revoking incidental take permits for Habitat Conservation Plans (69 FR 29681).
  • Published a final rule December 10, 2004, in the Federal Register establishing regulations describing circumstances in which the Service may revoke incidental take permits issued under the Endangered Species Act.

While the Service has not revoked an incidental take permit associated with an HCP to date, these regulations clarify the limited circumstances when this could happen. This rule allows the Service to revoke an incidental take permit only if take of listed species caused by the permitted activity will reduce the likelihood of survival and recovery in the wild of one or more of the covered species and the Service cannot find a remedy to prevent this situation.

The Service received approximately 250 comments on the proposed rule. Most commenters felt that the permit revocation regulations were appropriate as proposed. Some commenters thought the permit revocation regulations inappropriately limited when the Service could revoke incidental take permits. A few commenters thought the proposed regulations were overly protective of listed resources and undermined the regulatory certainty provided by the No Surprises Rule.

The Service deleted the phase "in a timely fashion" from the final regulations because each HCP is unique. It is difficult to define a precise timeframe in which the Service would remedy a situation in which the permitted activity would appreciably reduce the likelihood of survival and recovery in the wild of one or more of the covered species or revoke an incidental take permit. Regulations regarding the procedure for making such findings are found in 50 CFR 17.22(b)(5)(iii) and 17.32(b)(5)(iii).

The U.S. Fish and Wildlife Service is the principal Federal agency responsible for conserving, protecting and enhancing fish, wildlife and plants and their habitats for the continuing benefit of the American people. The Service manages the 95-million-acre National Wildlife Refuge System which encompasses 544 national wildlife refuges, thousands of small wetlands and other special management areas. It also operates 69 national fish hatcheries, 63 fishery resource offices and 81 ecological services field stations. The agency enforces Federal wildlife laws, administers the Endangered Species Act, manages migratory bird populations, restores nationally significant fisheries, conserves and restores wildlife habitat such as wetlands, and helps foreign governments with their conservation efforts. It also oversees the Federal Aid program that distributes hundreds of millions of dollars in excise taxes on fishing and hunting equipment to State fish and wildlife agencies.

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