Section 10 of the Endangered Species Act (ESA)allows an individual or private citizen to “take” a listed species if they develop a Habitat Conservation Plan (HCP). This is in contrast to Section 7 of the ESA, which regulates federal government actions.The purpose of the HCP process and issuance of Incidental Take Permits (ITPs) is to authorize the incidental take of threatened or endangered species, not to authorize the underlying activities that result in take (typically the CEQA process will identify the potential need for a HCP in California).
This process ensures that the effects of the authorized incidental take will be adequately minimized and mitigated to the maximum extent practicable. As with Section 7, the HCP process is overseen by the United States Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS).As of early 2016, over 1,000 total HCPs have been approved in the US covering more than 46 million acres of land. Approximately 1 million of those acres are in California.
- Click here to learn specifics about California’s HCPs
ITPs are required for:
“any activity that could result in take of a threatened or endangered species by an individual, corporation, local agency, state agency, or other non-federal entity.”
To receive an ITP under Section 10 you must complete a HCP.
The ITP process under Section 10 is divided into 3 steps:
Step 1: Preparing the HCP and Permit Application
Preparing the HCP is the first, and most important step of the HCP process. HCPs can cover very large areas with multiple species and habitats, or they can be very small and cover a single impact to one species. More comprehensive plans are required for the HCPs that cover many species and large areas due to the overlapping jurisdictions and competing local and regional regulations and interests.
At a minimum each plan must include:
- An assessment of the likely impacts on protected species
- Measures that will be taken to minimize and mitigate for impacts
- An analysis of alternatives not chosen
- Funding assurances
- Measures that will be taken to monitor and manage species and their habitats
Other Items Submitted
- Incidental Take Permit Application (Download Here)
- $100 Application Fee
- Often a draft Implementing Agreement (IA) is included with the permit application for larger plans. An IA is a contract that describes the roles and responsibilities of the permit holder, the federal wildlife agency, and any other parties responsible for implementing theHCP. USFWS requires an IA for large regional HCPs, but IAs are optional for smaller, single project HCPs. (download a template IA here)
- National Environmental Quality Act (NEPA) requires that federal agencies (i.e. USFWS) “to evaluate the impact of their actions on the environment as a whole”, and issuing an ITP is considered a “discretionary action” that is subject to NEPA. Therefore, a draft NEPA document, such as an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), must be included with the permit application. (Learn more here)
Step 2:Incidental Take Permit Review and Processing
Before issuing an ITP, the USFWSmust make the following findings:
- the taking is incidental to an otherwise lawful activity; ·
- impacts are monitored, minimized, and mitigated to the maximum extent practicable; ·
- procedures are provided to deal with unforeseen circ*mstances; ·
- adequate funds exist to implement the HCP; and
- the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.
In addition, the NEPA document must be completed prior to issuing the ITP.EA’s and EIS’s require a lengthy public review process. EIS’s are usually required during the HCP processbecauseapplicants seeking ITPs are likely to have significant impacts to listed species according to NEPA.
This permit processingends with the following documents submitted to the applicant: ·
- Biological Opinion (learn more); ·
- Federal ESA required findings; ·
- Finding of No Significant Impact or Record of Decision (NEPA document findings) ·
- Implementation Agreement (if necessary); and ·
- Incidental Take Permit
Review and processing of ITPs for large HCPs that cover vast regional resources can take up to one year to completestarting from the time that they are submitted to the agencies for review.
Step 3:Implementing the ITP
Once the ITP is issued it is posted to the Federal Register, and the applicant is then responsible for implementing the HCP. This responsibility includes monitoring the levels of take, funding the HCP, and implementing and complying with all measures identified in the HCP, permit conditions, and IA. The USFWS isresponsible for monitoring compliance with the permit conditions. For small project HCPs, the post-permit implementation may take no longer than the time necessary to construct the project and install mitigation measures such as habitat replacement or restoration. For large regional HCPs, the implementationphase may extend for the life of a multi-year or multi-decade permit. If conservation areas are established, they typically must be managed in perpetuity.
FAQs
Section 10 of the Endangered Species Act (ESA) allows an individual or private citizen to “take” a listed species if they develop a Habitat Conservation Plan (HCP). This is in contrast to Section 7 of the ESA, which regulates federal government actions.
What is Section 10 of the ESA HCP? ›
Section 10 of the ESA and its implementing regulations define the contents of HCPs. They include: An assessment of impacts likely to result from the proposed taking of one or more federally listed species.
What is Section 10 of the ESA proposed rule? ›
Section 10(a) of the ESA provides a voluntary mechanism for authorizing take of listed and non-listed species associated with beneficial conservation actions or otherwise lawful activities.
What is Section 10 of the ESA consultation? ›
Section 10 of the Endangered Species Act (ESA) provides exceptions for the take of listed plant and animal species resulting from activities that would otherwise be considered unlawful and prohibited.
What are the Section 10 regulations of the Endangered Species Act? ›
Section 10(a)(1)(A) authorizes the issuance of permits, under certain terms and conditions, for any act otherwise prohibited by section 9 for scientific purposes or to enhance the propagation or survival of the affected species.
What is Section 10 J of the ESA? ›
Under section 10(j), the FWS may designate a population of a listed species as experimental if it will be released into suitable natural habitat outside the species' current range, but within its probable historical range, absent a finding by the Director of the FWS in the extreme case that the primary habitat of the ...
What does Section 7 of the ESA require and prohibit? ›
Specifically, Section 7(a)(1) of the ESA charges Federal agencies to aid in the conservation of listed species, and Section 7(a)(2) requires the agencies to ensure their activities are not likely to jeopardize the continued existence of Federally-listed species or destroy or adversely modify designated critical habitat ...
What is the difference between section 7 and section 10 ESA? ›
Both Section 7 and Section 10 allow for incidental take, whether through a statement or a permit. The major difference between Section 7 and Section 10 is who is involved - federal agencies vs. private, state and local landowners - and how incidental take is dealt with - via statement or permit.
What are safe harbor agreements? ›
A Safe Harbor Agreement (SHA) is a voluntary agreement involving private or other non-federal property owners whose actions contribute to the recovery of species listed as endangered or threatened under the Endangered Species Act (ESA).
Is the Endangered Species Act still enforced? ›
Provisions of the ESA are enforced through citizen suits, as well as through civil and criminal penalties. A criminal violation may result in imprisonment and a fine of up to $50,000. A civil violation of a major provision may result in a $25,000 fine (knowing violation) or a $12,000 fine.
The clinician will conduct a mental health evaluation to determine if you qualify for an ESA. Once a Pettable LMHP determines whether an ESA is essential to your care and well-being, they will write you a legitimate ESA letter. You will then receive an ESA letter within 24-48 hours of your consultation.
What do you say in an ESA consultation? ›
“ I have been struggling with depression / anxiety / panic attacks, and I think having an emotional support animal would make a difference. Could you help me with that? „ “ My pet dog/cat/bird always makes me feel better when I'm down or ridden with anxiety.
What is the process of listing under the ESA? ›
Although we may initiate listing proposals, we also may start the listing process with a petition from any member of the public. However, petitions need the support of biological data. We consider any information submitted on the biology, distribution, or threats to the species when making our decisions.
What four things does the Endangered Species Act ESA provide? ›
The Endangered Species Act establishes protections for fish, wildlife, and plants that are listed as threatened or endangered; provides for adding species to and removing them from the list of threatened and endangered species, and for preparing and implementing plans for their recovery; provides for interagency ...
What is not covered under the Endangered Species Act? ›
All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened.
What would be illegal under the Endangered Species Act? ›
Under section 9 of the ESA, it is illegal to import, export, or take endangered species for any purpose, including commercial activity. The term “take” means to harass, hunt, shoot, capture, trap, kill, collect, wound, harm, or pursue an ESA-listed species, or attempt any of these activities.
What does Section 9 of the ESA say? ›
Under section 9 of the ESA, it is illegal to import, export, or take endangered species for any purpose, including commercial activity. The term “take” means to harass, hunt, shoot, capture, trap, kill, collect, wound, harm, or pursue an ESA-listed species, or attempt any of these activities.
What does Section 4 of the ESA contain? ›
One of the main goals of the ESA is to recover imperiled species and section 4 directs the development of plans to aid the agency in achieving this goal. These plans are logically called “recovery plans” and they include actions that will help the conservation of the species, like captive breeding or reintroduction.
What is Section 6 C ESA? ›
SECTION 6 AGREEMENTS
Under section 6(c)(1), a State may enter into an agreement for the conservation of animal species, and under section 6 (c)(2), a State may enter into an agreement for the conservation of plant species.
