Permits for the Incidental Taking of Endangered and Threatened Species
Section 10(a)(1)(B) of the Endangered Species Act provides a mechanism for authorizing and permitting the incidental take of listed species by non-federal entities.
About
Congress amended the Endangered Species Act (ESA) in 1982 in part to provide a mechanism for reducing conflicts between protected species and industrial development. Through this amendment, Congress established the authority to permit the incidental take of ESA listed species by non-federal entities conducting otherwise lawful activities.
Incidental Take Permits (ITP) are issued under section 10(a)(1)(B) of the ESA. ITPs may be sought when a non-federal entity's otherwise lawful activity is reasonably certain to result in the incidental take of endangered or threatened species. A Conservation Plan (CP) must accompany an application for an ITP.
An ITP is not necessary in situations where a project or activity can be designed or implemented in a way that completely avoids the take of ESA-listed species.
Note - Activities authorized, funded, or carried out by a federal agency do not qualify for ESA section 10 ITPs. Where a federal activity may affect a listed species, the federal action agency would instead consult with NMFS under section 7 of the ESA, and, where appropriate, a biological opinion would be produced. Any anticipated take of listed species would be authorized through an incidental take statement included in the biological opinion.
What is a Conservation Plan?
A Conservation Plan is a planning document that outlines how a particular non-federal entity will minimize and mitigate for the incidental take of listed species while carrying out their specific activity (e.g. commercial fishing, energy development, and marine construction). Conservation plans foster collaborative partnerships between NMFS and various organizations and industries operating in marine environments. These plans are essential for balancing economic activities with the protection of federally listed marine species and their habitats, ensuring that conservation commitments benefit both the permittee and marine species over the long-term while providing regulatory assurances to project proponents.
Conservation Plans provide a framework for:
- Assessing potential effects on endangered and/or threatened marine species.
- Implementing avoidance, minimization, and mitigation measures to reduce take, such as gear modifications, seasonal restrictions, or habitat restoration.
- Securing short- and long-term conservation benefits for marine ecosystems while helping to advance economic development.
- Facilitating compliance with the Endangered Species Act.
If NMFS determines that a permit application and associated Conservation Plan meet all of the statutory and regulatory requirements, it will issue an ITP.
Conservation Plans are also required to comply with the Five Points Policy by including:
- Biological goals and objectives, which define the expected biological outcome for each species covered by the Conservation Plan;
- Adaptive management, which includes methods for addressing uncertainty and also monitoring and feedback to biological goals and objectives;
- Monitoring for compliance, effectiveness, and effects;
- Permit duration, which is determined by the time-span of the project and designed to provide the time needed to achieve biological goals and address biological uncertainty; and
- Public participation according to the National Environmental Policy Act.
What are the benefits of an ITP?
Section 10 ITPs provides non-federal entities with multiple benefits, including but not limited to the following:
- Legal Protection: An ITP provides legal protection by ensuring ESA compliance and potentially shields permittees from fines and lawsuits.
- No Surprises: The final Habitat Conservation Plan Assurances (“No Surprises”) Rule, published on February 23, 1998, provides regulatory assurances that additional mitigation measures will not be imposed if the Conservation Plan is being properly implemented and unforeseen circumstances arise, that are not addressed in the Conservation Plan, thereby offering long-term regulatory certainty (50 CFR 222.307(g)).
- Operational Continuity & Flexibility: ITPs allow for adaptive management in order to balance the permittee's need to continue their operations (power plants, state-managed fisheries, etc.) with ESA compliance.
- Long-Term Value and Potential Cost Stability: While implementing minimization and mitigation measures may require upfront costs, ultimately, these efforts should help prevent long-term regulatory costs and prevent costly operational disruptions or regulatory changes in the future.
- Predictable and Streamlined Permit Renewals: A thorough, well-developed, and well-managed Conservation Plan can simplify future permit renewals and reduce the risk of added restrictions.
- Access to Scientific and Technical Support: NMFS collaborates with applicants to help provide data, research, and guidance on best practices, minimization, monitoring, and mitigation strategies, and operational adjustments to either prevent any incidental take or reduce the amount and impact of any incidental take and continues to work closely with permittees when an ITP is issued.
- Support for Best Practices: Collaborating with NMFS helps develop industry-wide and project-specific best practices, which improve efficiency and lead to long-term benefits for permit holders.
Additional Resources:
How to Apply
ITP = Incidental Take Permits; NEPA = National Environmental Protection Act; ESA = Endangered Species Act; CP = Conservation Plan
Phase 1: Pre-Application
Are you eligible for an ITP?
As the project proponent, you should consider applying for an ITP if your activity will occur in an area where your activity is reasonably certain to result in incidental take of ESA-listed species. While seeking an incidental take permit is a voluntary action by an applicant, unauthorized take of an ESA-listed species could result in a violation of section 9 of the ESA.
Resources for determining overlap of species presence with project location. Note that the resources listed below do not necessarily reflect all potential species presence within action areas, therefore reaching out to NMFS is still recommended:
- Species GIS Mappers
- National ESA Critical Habitat Mapper
NMFS strongly recommends prospective applicants meet with NMFS early and often in the process to receive guidance and support.
Who to contact?
- For requests relating to incidental take of ESA-listed species, not including ESA-listed anadromous fish in the Pacific, please reach out to the Office of Protected Resources:
Email: pr.esa.incidentaltakepermits@noaa.gov - For requests relating to incidental take of only ESA-listed anadromous fish in the Pacific, please reach out to your respective area office in the West Coast Region.
Phase 2: Developing the Conservation Plan
What is the applicant’s role?
An applicant develops a Conservation Plan that assesses the likely impacts to “covered” species from the applicant’s “covered activities”; the steps that will be taken to monitor, minimize, and mitigate those impacts; and how the Conservation Plan will be funded. The plan also identifies any alternative actions that could avoid and minimize the incidental take and the reasons why those alternatives are not being chosen.
- Covered activities must be: (1) otherwise lawful, (2) non-federal, and (3) under the direct control of the applicant.
- The application and Conservation Plan need to meet statute criteria under section 10(a)(1)(B), regulatory requirements 50 CFR 222.307(b) and follow the Five Points Policy.
- Reference the Conservation Plan Handbook for more details concerning the contents of the applicant’s Conservation Plan.
NMFS requires that Conservation Plans be based on the best available scientific and commercial data. NMFS evaluates the application and Conservation Plan pursuant to the issuance criteria in section 10(a)(2) of the ESA and 50 CFR 222.307. NMFS will also collaborate with the applicant to confirm that any proposed monitoring, minimization, and mitigation measures will be practicable and effective in avoiding or minimizing the amount and impact of any anticipated take of ESA-listed species.
Once NMFS has determined that the prospective applicant's application and Conservation Plan are adequate and complete, NMFS will provide instructions on how to formally submit a final draft of the application and Conservation Plan.
What Happens After You Submit
Phase 3: Processing, Making a Permitting Decision, and Issuing the Incidental Take Permit
What happens after you submit your application?
After an application and Conservation Plan are submitted, we will publish a notice of receipt in the Federal Register, making the documents available for public review and comment. We will also post the notice and application materials on our Incidental Take Permit webpage.
We will use the information provided in the application and Conservation Plan to determine whether the application meets the ESA section 10(a)(1)(B) incidental take permit issuance criteria, and whether we can issue a permit.
We will also review all comments received during the public comment period and request that the applicant provides any required information to support our responses to comments. NMFS’s final decision concerning permit issuance or denial will be based on the contents of the application, Conservation Plan, public comments, and related analyses and consultations under NEPA, ESA section 7, and any other applicable laws or requirements. See 50 CFR 222.307.
What happens after your permit is issued?
Once your permit is issued, we will post it on the Incidental Take Permit webpage and identify the issuance and expiration date. NMFS will continue to provide support throughout the duration of the permit as described in Phase 4 of the ITP permitting process.
Phase 4: Implementing the Conservation Plan and Compliance Monitoring
Once NMFS issues an incidental take permit, the permittee is required to adhere to all terms and conditions outlined in their ITP and is responsible for ensuring compliance with the Conservation Plan, which includes implementing the conservation measures and monitoring their effectiveness.
Any reports will be submitted to NMFS as outlined in the Conservation Plan and ITP. At a minimum, all permits require annual reports. More frequent reporting (e.g., 24-hour take reports, seasonal reports, monthly reports) may be required depending on the type of activities, levels of uncertainty, and potential for incidental take.
NMFS provides support throughout the duration of the permit. We are available to assist in addressing inquiries as they arise and engage in discussions regarding the implementation of adaptive management measures, when necessary. This ongoing collaboration and communication helps ensure that the Conservation Plan’s conservation objectives and goals are met, and that the permittee adheres to all regulatory requirements.
Additionally, we will provide information and support if an applicant seeks to amend or renew the permit (See 50 CFR 222.306 and 50 CFR 222.304). If the information in your current application package on file has changed, you must notify NMFS to determine if an amendment to your valid permit is needed. For example, such changes may include the addition of species to the permit, changes in location or activities, or the need for a transfer of the permit. Please contact OPR for technical assistance in making this determination.
More Information
Paperwork Reduction Act
Authority: The collection of this information is authorized under the Endangered Species Act, 16 U.S.C. 1531 et seq. Purpose: In order to manage protected resources, NOAA Fisheries requires the use of permits by participants in the United States. Information on permit applications includes permitee contact information. Routine Uses: The Department will use this information to determine permit eligibility. Disclosure of this information is permitted under the Privacy Act of 1974 (5 U.S.C. Section 552a), to be shared within the NOAA Fisheries, in order to coordinate monitoring and management of protected resources. Disclosure of this information is also subject to all of the published routine uses as identified in the Privacy Act System of Records Notice COMMERCE/NOAA-12, Marine Mammals, Endangered and Threatened Species, Permits and Authorizations Applicants. Disclosure: Furnishing this information is voluntary; however, failure to provide complete and accurate information will prevent the determination of eligibility for a permit.
All documentation, including the application, reports, and any other associated documents are considered public information and as such, are subject to the Freedom of Information Act. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number.
OMB No. 0648-0230
Expires: July 4, 2025
Purpose: The collection of contact information is to verify the individual has an eligible permit to conduct activities which affect protected species. This helps NMFS monitor and report on protected species and assesses the impact of permitted activities on the conservation and management of species and their habitats.
Routine Uses: The collected information may be used to verify an applicant’s eligibility for a permit to conduct activities with protected species; to provide the public and the permittees with permit related information; to monitor activities under a permit; to analyze data and produce reports to monitor the use of protected species; to assess the impact of permitted activities on the conservation and management of protected species and their habitats; and to evaluate the effectiveness of the permit programs.