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CHAPTER 7

ISSUANCE CRITERIA FOR

INCIDENTAL TAKE PERMITS

Upon receiving a permit application and conservation plan completed in accordance

with the requirements of section 10(a)(2)(A) of the ESA and Chapter 3 above, FWS

and NMFS must consider the issuance criteria described at section 10(a)(2)(B) of the

ESA in determining whether to issue the permit. All applicable criteria must be

satisfied before a permit may be issued. If the application fails to meet any of the

criteria, the permit must be denied. In addition, the FWS must ensure that general

permit issuance criteria described at 50 CFR 13.21 and criteria specific to section

10(a)(1)(B) permits described at 50 CFR 17.22(b)(2) and 50 CFR 17.32(b)(2) are

satisfied. However, issuance criteria under at 50 CFR Part 17 are essentially identical

to those under the ESA. For NMFS, general permit criteria in 50 CFR 217 and 220

must be met in addition to criteria specific to incidental take permits in 50 CFR 222. 

For NMFS, general permit criteria in 50 CFR 217 and 220 must be met in addition to

criteria specific to incidental take permits in 50 CFR 222, and denials of permits must

be made pursuant to Subpart D of 15 CFR part 904.

A. General Permit Issuance Criteria

The FWS cannot issue a permit if any of the following apply:

(1) The applicant has been assessed a civil penalty or convicted of any criminal

provision of any statute or regulation relating to the activity for which the

application is filed, if such assessment or conviction evidences a lack of

responsibility; 

(2) The applicant has failed to disclose material information, or has made false

statements as to any material fact in connection with the application;

(3) The applicant has failed to demonstrate a valid justification for the permit and a

showing of responsibility;

(4) The authorization requested threatens the continued existence of a wildlife or

plant population. 

(5) The FWS finds through further inquiry or investigation, or otherwise, that the

applicant is not qualified to conduct the proposed activities. 

In addition to the above, FWS regulations cite four factors relating to felony violations of

national wildlife laws and violation of conditions within other permits that could disqualify an
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applicant from receiving a section 10 permit. These factors are described at 50 CFR

13.21(c). NMFS regulations describe similar conditions under which a permit could not be

issued (see 50 CFR 220.21). 

B. Endangered/Threatened Species Permit Issuance Criteria

Section 10(a)(2)(B) of the ESA requires the following criteria to be met before the 

FWS or NMFS may issue an incidental take permit. If these criteria are met and the HCP

and supporting information are statutorily complete, the permit must be issued.

1. The taking will be incidental.

Under the ESA, all taking of federally listed fish and wildlife species as detailed in the HCP

must be incidental to otherwise lawful activities and not the purpose of such activities. For

example, deliberate shooting or wounding a listed species ordinarily would not be considered

incidental take and would not qualify for an incidental take permit. Conversely, the

destruction of an endangered species or its habitat by heavy equipment during home

construction or other land use activities generally would be construed as incidental and could

be authorized by an incidental take permit. 

a. Authorizing Take Associated With Mitigation Activities.

Mitigation and monitoring programs sometimes require actions that, strictly speaking, may

be construed as a deliberate take. A good example is trapping endangered or threatened

animals at a project site to re-locate or protect them in some fashion or to monitor their

presence or activities.

Generally, actions that result in deliberate take can be conducted under an incidental take

permit, if: (1) the take results from mitigation measures (e.g., capture/relocation) specifically

intended to minimize more serious forms of take (e.g., killing or injury) or are part of a

monitoring program specifically described in the HCP; and (2) such activities are directly

associated in time or place with activities authorized under the permit. Examples include

capture of endangered animals from a project site and removal to adjacent or nearby habitat,

capture and release of animals accidentally entrapped at the site (e.g., in a pipeline trench),

capture/release studies for monitoring purposes, even permanent capture for purposes of

donation to a captive breeding or research facility. However, where such activities require

special qualifications, the HCP should require written FWS or NMFS authorization before

any individual is permitted to conduct the work.

b. Authorizing Take For Scientific Purposes.
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Other types of activities cannot be authorized by an incidental take permit because they

include actions that are not generally needed to implement an HCP or include long-term

components that are not "incidental" to the activity described in the HCP. Examples of these

types of activities include holding endangered or threatened animals in captivity for

propagation purposes or scientific research; euthanizing them for research purposes; and

taking tissue samples for laboratory testing. However, such activities qualify as take for

"scientific purposes" or purposes of "enhancement of propagation or survival" and can be

authorized under section 10(a)(1)(A) of the ESA. 

If an HCP calls for activities of this type, the applicant should specify that the 

project will result in incidental take and take for scientific purposes or for purposes of

enhancement of propagation or survival. Application requirements for scientific permits

must then be addressed. These are described at 50 CFR 17.22(a)(1)(i-ix) for endangered

species and 50 CFR 17.32(a)(1)(i-ix) for threatened species (FWS) and 50 CFR 217, 220,

and 222 (NMFS). In addition, FWS must address issuance criteria under 50 CFR

17.22(a)(2) for endangered species and 50 CFR 17.32 (a)(2) for threatened species to issue

permits for these purposes. Generally, if proposed activities are well-described in the HCP,

including those requiring a scientific permit, and if all incidental take permit application

requirements have been met, the only additional information needed for a scientific permit is

resumes of individuals who would be conducting permitted activities. The permit issued can

be a joint section 10(a)(1)(A) section 10(a)(1)(B) permit--i.e., only one permit need be

issued.

 

2. The applicant will, to the maximum extent practicable, minimize and mitigate the 

impacts of such taking.

The applicant decides during the HCP development phase what measures to include in the

HCP (though, obviously, the applicant does so in light of discussions with and

recommendations from FWS or NMFS). However, the Services ultimately decide, at the

conclusion of the permit application processing phase, whether the mitigation program

proposed by the applicant has satisfied this statutory issuance criterion.

This finding typically requires consideration of two factors: adequacy of the minimization

and mitigation program, and whether it is the maximum that can be practically implemented

by the applicant. To the extent maximum that the minimization and mitigation program can

be demonstrated to provide substantial benefits to the species, less emphasis can be placed on

the second factor. However, particularly where the adequacy of the mitigation is a close call,

the record must contain some basis to conclude that the proposed program is the maximum

that can be reasonably required by that applicant. This may require weighing the costs of

implementing additional mitigation, benefits and costs of implementing additional mitigation,

the amount of mitigation provided by other applicants in similar situations, and the abilities of

that particular applicant. Analysis of the alternatives that would require additional mitigation
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in the HCP and NEPA analysis, including the costs to the applicant is often essential in

helping the Services make the required finding. 

3. The applicant will ensure that adequate funding for the HCP and procedures to deal 

with unforeseen circumstances will be provided.

These issuance criteria are identical to HCP requirements discussed in Chapter 3. The

Services must ensure that funding sources and levels proposed by the applicant are reliable

and will meet the purposes of the HCP, and that measures to deal with unforeseen

circumstances are adequately addressed. Without such findings, the section 10 permit cannot

be issued. Examples of funding mechanisms and methods of ensuring funding are discussed

in Chapter 3, Section B.6. 

The "Unforeseen or Extraordinary Circumstances " discussion in the HCP must be consistent

with the joint Department of Interior/Department of Commerce "No Surprises" policy and

should impose no higher standard on the permit applicant with respect to unforeseen

circumstances than that described under this policy (see Chapter 3, Section B.5(a)).

4. The taking will not appreciably reduce the likelihood of survival and recovery of the 

species in the wild.

This is a critically important criterion for incidental take permits because it establishes a

fundamental "threshold" standard for any listed species affected by an HCP. Furthermore,

the wording of this criterion is identical to the "jeopardy" definition under the section 7

regulations (50 CFR Part 402.02), which defines the term "jeopardize the continued

existence of" as "to engage in an action that reasonably would be expected, directly or

indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed

species in the wild by reducing the reproduction, numbers, or distribution of that species."

Congress was explicit about this link, stating in the Conference Report on the 1982 ESA

amendments that the Services will determine whether or not to grant a permit, "in part, by

using the same standard as found in section 7(a)(2) of the ESA, as defined by the [Services']

regulations." Congress also directed the Services to "consider the extent to which the

conservation plan is likely to enhance the habitat of the listed species or increase the longterm survivability of the species or its ecosystem." (H.R. Report No. 97-835, 97th Congress,

Second Session).

Thus, since the issuance of a section 10 permit is a Federal action subject to section 7 of the

ESA (see Chapter 3, Section B.2(e)), the law prohibits any non-Federal activity under an

HCP from "jeopardizing" a species under two standards: (1) the section 7 jeopardy standard;

and (2) the incidental take permit issuance criteria. There is one difference between these

two standards--the section 10 issuance criteria apply only to listed fish and wildlife species

(because listed plants typically are not protected against take on non-Federal lands), while
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the jeopardy standard under section 7(a)(2) applies to plants as well as animals. However,

the practical effect is the same--the ESA requires a "no-jeopardy" finding for all affected

federally listed species as a precondition for issuance of an incidental take permit. The basis

for this finding is the Service’s biological opinion.

5. The applicant will ensure that other measures that the Services may require as being 

necessary or appropriate will be provided.

This criterion is equivalent to the requirement that HCPs include other measures as necessary

or appropriate for purposes of the plan. Because the HCP process deals with numerous

kinds of proposals and species, this criterion authorizes the Services to impose additional

measures to protect listed species where deemed necessary. Although these types of

measures should have been discussed during the HCP development phase and incorporated

into the HCP, FWS or NMFS must ensure that the applicant has included all those measures

the Services consider necessary "for purposes of the plan" before issuing the permit. The

principal additional measure that the Services may require at this time is the Implementing

Agreement. Other measures the Services might recommend during HCP negotiations could

include those necessary to guarantee funding for the mitigation program and monitoring and

reporting requirements to ensure permit compliance. Also, any incidental take permit issued

will be subject to the general permit conditions described at 50 CFR Part 13, Subpart D

(FWS) or 50 CFR Part 220 (NMFS) regarding the display of permits, maintenance of

records, filing of reports, etc. 

6. The Services have received such other assurances as may be required that the HCP 

will be implemented.

The applicant must ensure that the HCP will be carried out as specified. Since compliance

with the HCP is a condition of the permit. The authority of the permit is a primary

instrument for ensuring that the HCP will be implemented. When developed, Implementing

Agreements also provide assurances that the HCP will be properly implemented. Where a

local government agency is the applicant, the Agreement should detail the manner in which

local agencies will exercise their existing authorities to effect land or water use as set forth in

the HCP. Under an HCP, government entities continue to exercise their duly constituted

planning, zoning, and permitting powers. However, actions that modify the agreements

upon which the permit is based (e.g., rezoning an area contrary to land uses specified in the

HCP) could invalidate the permit. In addition, failure to abide by the terms of the HCP and

Implementing Agreement (if required) is likely to result in suspension or revocation of the

permit. 

Some HCPs may involve interests other than the applicant or permittee. In these cases, the

applicant must have specific authority over the other parties affected by the HCP and be

willing to exercise that authority, or must secure commitments from them that the terms of

the HCP will be upheld. In the latter case, agreements between the FWS or NMFS and the
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other groups, or legally binding contracts between the applicant and such individuals or

interests, may be necessary to bind all parties to the terms of the HCP.

Any Implementing Agreement submitted in support of an HCP should be consistent with the

discussion in Chapter 3, Section B.8, and, where applicable, with the Implementing

Agreement "template" in Appendix 4.
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CHAPTER 8 - DEFINITIONS

Candidate species - Under FWS’s ESA regulations, "...those species for which the Service

has on file sufficient information on biological vulnerability and threat(s) to support

proposals to the list them as endangered or threatened species. Proposal rules have not yet

been issued because this action is precluded..." (See Federal Register, Volume 61, No. 49,

page 7598.) For those species under the jurisdiction of NMFS, candidate species means a

species for which concerns remain regarding their status, but for which more information is

needed before they can be proposed for listing. 

Categorical exclusion - Under NEPA regulations, a category of actions that does not

individually or cumulatively have a significant effect on the human environment and have

been found to have no such effect in procedures adopted by a Federal agency pursuant to

NEPA. (40 CFR 1508.4)

Complete application package - Section 10 permit application package presented by the

permit applicant to the Field Office or Regional Office for processing. It contains an

application form, fee (if required), HCP, EA or EIS. In order to begin processing, the

package must be accompanied by a certification by the Field Office that it has reviewed the

application documents and finds them to be statutorily complete.

Conservation plan - Under section 10(a)(2)(A) of the ESA, a planning document that is a

mandatory component of an incidental take permit application, also known as a Habitat

Conservation Plan or HCP.

Conservation plan area - Lands and other areas encompassed by specific boundaries which

are affected by the conservation plan and incidental take permit.

"Covered species" - Unlisted species that have been adequately addressed in an HCP as

though they were listed, and are therefore included on the permit or, alternately, for which

assurances are provided to the permittee that such species will be added to the permit if listed

under certain circumstances. "Covered species" are also subject to the assurances of the "No

Surprises" policy.

Cumulative impact or effect - Under NEPA regulations, the incremental environmental

impact or effect of the action together with impacts of past, present, and reasonably

foreseeable future actions, regardless of what agency or person undertakes such other

actions. (40 CFR 1508.7) Under ESA section 7 regulations, the effects of future state or

private activities not involving Federal activities, that are reasonably certain to occur within

the action area of the Federal action subject to consultation (50 CFR 402.02). 
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Delist - To remove from the Federal list of endangered and threatened species (50 CFR

17.11 and 17.12) because such species no longer meets any of the five listing factors

provided under section 4(a)(1) of the ESA and under which the species was originally listed

(i.e., because the species has become extinct or is recovered).

Development or land use area - Those portions of the conservation plan area that are

proposed for development or land use or are anticipated to be developed or utilized.

Downlist - To reclassify an endangered species to a threatened species based on alleviation

of any of the five listing factors provided under section 4(a)(1) of the ESA.

Effect or impact - Under NEPA regulations, a direct result of an action that occurs at the

same time and place; or an indirect result of an action which occurs later in time or in a

different place and is reasonably foreseeable; or the cumulative results from the incremental

impact of the action when added to other past, present and reasonably foreseeable future

actions regardless of what agency or person undertakes such other actions (40 CFR 1508.8). 

Under ESA section 7 regulations, "effects of the action" means "the direct and indirect

effects of an action on the species or critical habitat, together with the effects of other

activities that are interrelated or interdependent with that action, that will be added to the

environmental baseline (50 CFR 402.02). 

Endangered species - "...any species [including subspecies or qualifying distinct population

segment] which is in danger of extinction throughout all or a significant portion of its range." 

[Section 3(6) of ESA]

Endangered Species Act of 1973, as amended - 16 U.S.C. 1513-1543; Federal legislation

that provides means whereby the ecosystems upon which endangered species and threatened

species depend may be conserved, and provides a program for the conservation of such

endangered and threatened species.

Environmental Action Memorandum (EAM) - A FWS document prepared to explain the

Service’s reasoning in finalizing an action that is categorically excluded form NEPA;

decisions based on EAs for which a notice is not published in the Federal Register;

emergency actions under CEQ's NEPA regulations (40 CFR 1506.11); EAs which conclude

that an EIS is necessary (since no FONSI is prepared in such cases); and any decision where

additional documentation of the Service’s decision is desirable (Director's Order No. 11).

Environmental Assessment (EA) - A concise public document, prepared in compliance with

NEPA, that briefly discusses the purpose and need for an action, alternatives to such action,

and provides sufficient evidence and analysis of impacts to determine whether to prepare an

Environmental Impact Statement or Finding of No Significant Impact (40 CFR 1508.9).
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Environmental impact statement (EIS) - A detailed written statement required by section

102(2)(C) of NEPA containing, among other things, an analyses of environmental impacts of

a proposed action and alternative considered, adverse effects of the project that cannot be

avoided, alternative courses of action, short-term uses of the environment versus the

maintenance and enhancement of long-term productivity, and any irreversible and

irretrievable commitment of resources (40 CFR 1508.11 and 40 CFR 1502).

Finding of no significant impact (FONSI) - A document prepared in compliance with NEPA,

supported by an EA, that briefly presents why a Federal action will not have a significant

effect on the human environment and for which an EIS, therefore, will not be prepared (40

CFR 1508.13).

Formal permit application phase - The phase of the section 10 process that begins when the

Regional Office receives a "complete application package" and ends when a decision on

permit issuance is finalized.

Habitat - The location where a particular taxon of plant or animal lives and its surroundings,

both living and non-living; the term includes the presence of a group of particular

environmental conditions surrounding an organism including air, water, soil, mineral

elements, moisture, temperature, and topography. 

Habitat conservation plan (HCP) - See "conservation plan."

"Harm" - Defined in regulations implementing the ESA promulgated by the Department of

the Interior as an act "which actually kills or injures" listed wildlife; harm may include

"significant habitat modification or degradation where it actually kills or injures wildlife by

significantly impairing essential behavioral patterns, including breeding, feeding, or

sheltering." (50 CFR 17.3) NMFS has not defined "harm" by regulation.

"Harass" - Defined in regulations implementing the ESA promulgated by the Department of

the Interior as "an intentional or negligent act or omission which creates the likelihood of

injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral

patterns which include, but are not limited to, breeding, feeding, and sheltering." (50 CFR

17.3) NMFS has not defined "harass" by regulation.

Implementing Agreement - An agreement that legally binds the permittee to the requirements

and responsibilities of a conservation plan and section 10 permit. It may assign the

responsibility for planning, approving, and implementing the mitigation measures under the

HCP.

Incidental take - Take of any federally listed wildlife species that is incidental to, but not the

purpose of, otherwise lawful activities (see definition for "take") [ESA section 10(a)(1)(B)].
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Incidental take permit - A permit that exempts a permittee from the take prohibition of

section 9 of the ESA issued by the FWS or NMFS pursuant to section 10(a)(l)(B) of the

ESA. In this handbook, also referred to as a section 10(a)(1)(B) or section 10 permit.

Listed species - Species, including subspecies and distinct vertebrate populations, of fish,

wildlife, or plants listed as either endangered or threatened under section 4 of the ESA.

Mitigation - Under NEPA regulations, to moderate, reduce or alleviate the impacts of a

proposed activity, including: a) avoiding the impact by not taking a certain action or parts of

an action; b) minimizing impacts by limiting the degree or magnitude of the action; c)

rectifying the impact by repairing, rehabilitating or restoring the affected environment; d)

reducing or eliminating the impact over time by preservation and maintenance operations

during the life of the action; e) compensating for the impact by replacing or providing

substitute resources or environments (40 CFR 1508.20).

National Environmental Policy Act (NEPA) - Federal legislation establishing national policy

that environmental impacts will be evaluated as an integral part of any major Federal action. 

Requires the preparation of an EIS for all major Federal actions significantly affecting the

quality of the human environment (42 U.S.C. 4321-4327).

Person - "...an individual, corporation, partnership, trust association, or any other private

entity; or any officer, employee, agent, department or instrumentality of the Federal

government, of any State, municipality, or political subdivision of a State, or of any foreign

government; any State, municipality, or political subdivision of a State; or any other entity

subject to the jurisdiction of the United States" [Section 3(12) of the ESA].

Plan area - See "conservation plan area."

HCP development phase - The period in the section 10 process during which the applicant

works with the FWS or NMFS Field Office to develop the HCP and associated documents. 

This phase ends when the Field Office forwards a "complete application package" to the

Regional Office.

Proposed action - Under NEPA regulations, a plan that has a goal which contains sufficient

details about the intended actions to be taken or that will result, to allow alternatives to be

developed and its environmental impacts to be analyzed (40 CFR 1508.23).

Proposed species - A species for which a proposed rule to add the species to the Federal list

of threatened and endangered species has been published in the Federal Register. 

Record of Decision - Under NEPA regulations, a concise public record of decision prepared

by the Federal agency, pursuant to NEPA, that contains a statement of the decision,

identification and discussion of all factors used by the agency in making its decision,
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identification of all alternatives considered, identification of the environmentally preferred

alternative, a statement as to whether all practical means to avoid or minimize environmental

harm from the alternative selected have been adopted (and if not, why they were not), and a

summary of monitoring and enforcement measures where applicable for any mitigation (40

CFR 1505.2).

Section 7 - The section of the ESA which describes the responsibilities of Federal agencies in

conserving threatened and endangered species. Section 7(a)(1) requires all Federal agencies

"in consultation with and with the assistance of the Secretary [to] utilize their authorities in

furtherance of the purposes of this Act by carrying out programs for the conservation of

endangered species and threatened species." Section 7(a)(2) requires Federal agencies to

"ensure that any action authorized, funded, or carried out by such agency...is not likely to

jeopardize the continued existence of any endangered species or threatened species or result

in the destruction or adverse modification of..." designated critical habitat.

Section 9 - The section of the ESA dealing with prohibited acts, including the "take" of any

listed species without specific authorization of the Fish and Wildlife Service or the National

Marine Fisheries Service for species under the jurisdiction of each agency. 

Section 10 - The section of the ESA dealing with exceptions to the prohibitions of section 9

of the ESA.

Section 10(a)(1)(A) - That portion of section 10 of the ESA that allows for permits for the

taking of threatened or endangered species for scientific purposes or for purposes of

enhancement of propagation or survival. 

Section 10(a)(1)(B) - That portion of section 10 of the ESA that allows for permits for

incidental taking of threatened or endangered species. 

Set of Findings - FWS document (also used by NMFS) that evaluates, for the administrative

record, a section 10(a)(1)(B) permit application in the context of permit issuance criteria

found at section 10(a)(2)(B) of the ESA and 50 CFR Part 17.

Species - "...any subspecies of fish or wildlife or plants, and any distinct population segment

of any species of vertebrate fish or wildlife which interbreeds when mature" [Section 3(15) of

the ESA]. 

Steering committee - Group or panel of individuals representing affected interests or

stakeholders in a conservation planning program, the private sector, and the interested

public, which may be formed by the applicant to guide development of the HCP, recommend

appropriate development, land use, and mitigation strategies, and to communicate progress

to their larger constituencies. FWS and NMFS representatives may participate to provide

information on procedures, statutory requirements, and other technical information.
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Take - Under section 3(18) of the ESA, "...to harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect, or to attempt to engage in any such conduct" with respect to

federally listed endangered species of wildlife. Federal regulations provide the same taking

prohibitions for threatened wildlife species [50 CFR 17.31(a)].

Threatened species - "...any species which is likely to become an endangered species within

the foreseeable future throughout all or a significant portion of its range" [Section 3(19) of

the ESA].