Take Permit

US Fish and Wildlife Service (USFWS)/National Marine Fisheries Service (NMFS) - Federal Endangered Species Act Consultation "Take" Authorization

Activities

  • Activities subject to this type of permit include any activity that would adversely affect federally-listed species. USFWS has jurisdiction over terrestrial wildlife, freshwater aquatic species, and plant species, and NMFS has jurisdiction over marine and anadromous aquatic species.
  • To determine whether a project has the potential to adversely affect federally-listed species, speak to a professional biological consultant or USFWS biologist. You can also look for federally-listed species information at the USFWS Sacramento Office website.
  • “Take” authorization from USFWS is required when take of a federally-listed species may occur. Take, under the Endangered Species Act, is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

Consultation Types

There are two types of formal consultation, under the Endangered Species Act, for which project proponents may obtain authorization from USFWS/NMFS:

  • Endangered Species Act Section 7 Consultation –Section 7 of the Endangered Species Act allows for interagency consultation between federal agencies (e.g., USACE and USFWS/NMFS). For the purposes of this permit guide and the scope of activities covered in this guide, it is assumed that the majority of Section 7 consultations would be between USACE and USFWS/NMFS (the only other federal agency that may be involved is U.S. Environmental Protection Agency). In this scenario, under formal Section 7 consultation, the lead federal agency (i.e., USACE) will initiate formal consultation with the appropriate federal agencies (i.e., USFWS/NMFS). USFWS/NMFS, in turn, consults with USACE and the project proponent to determine the effects of the project on federally-listed species and designated critical habitat and the appropriate measures to avoid, minimize, and/or mitigate those effects. If necessary, USFWS/NMFS will issue a Biological Opinion that can authorize take of the species.
  • Endangered Species Act Section 10(a) Incidental Take Permit - Section 10(a) of the Endangered Species Act allows for consultation between a project proponent and USFWS/NMFS in the absence of a “federal nexus” (i.e., no federal agency to enact Section 7 consultation). Under Section 10(a), the project proponent and USFWS/NMFS will discuss the potential adverse effects of the project on federally-listed species and discuss measures to avoid, minimize, and mitigate for those effects. Section 10(a) requires preparation and approval (by USFWS/NMFS) of a Habitat Conservation Plan before USFWS/NMFS can authorize the project or issue an Incidental Take Permit.

The Endangered Species Act consultation process can be very technical and complicated. If you believe your project may adversely affect federally-listed species, you are encouraged to speak with a regulatory professional (consultant), a biologist with USFWS/NMFS, or your USACE representative early in the process.

Endangered Species Act Consultation General Process and Steps

To obtain authorization from USFWS/NMFS under Section 7 or Section 10(a), one typically follows the steps below (continuing with the scenario in which the USACE is the federal lead agency):

  1. Request a species list from USFWS/NMFS or generate one on-line here.
  2. Evaluate the potential for federally-listed species to occur within the project action area and the potential for the project to affect these species.
  3. If the project has the potential to affect the federally-listed species, for Section 7, prepare and submit a biological assessment (BA) to USACE (federal lead agency) – The BA typically includes information on the location of the project, a description of the project that covers the project elements and activities and proposed construction methods in detail (e.g., what the activity will consist of, how the activity will be done, what equipment and materials will be needed for the activity, how access to the site will be achieved, and the activity schedule), the existing environmental setting, accounts of the species that may be affected by the project, an evaluation of the effects of the project on those species, and measures to avoid, minimize, and mitigate for the effects.
  4. For Section 7 consultations, request that USACE make a determination of effect. If USACE determines that federally-listed species may be affected by the project, request that USACE initiate consultation with USFWS/NMFS.
  5. For Section 10(a) consultation, contact USFWS/NMFS directly.
  6. Consult with USFWS/NMFS as needed to resolve any issues.
  7. If USFWS and/or NMFS determines that take of federally-listed species will occur, they will need sufficient information to issue the Biological Opinion with an Incidental Take Statement.

Timeline

Section 7(a)(2) of the Endangered Species Act states that U.S. Fish and Wildlife Service has 90 days to conclude consultation with USACE and an additional 45 days to issue a Biological Opinion and, if needed, an incidental take permit. However, there are many factors that can affect the time it takes to conclude consultation, including U.S. Fish and Wildlife Service requesting additional data from the project proponent. Based on current experience with Section 7 consultations in the Sacramento area, it is typically to have consultations take longer than 90 days to conclude. Thus, issuance of the Biological Opinion by the Sacramento Fish and Wildlife Office can take longer than the total 135 days.

There is no formal timeline associated with Section 10(a) consultation. Development of a Habitat Conservation Plan is key to obtaining the incidental take permit under Section 10(a). Preparation of and agreement by all parties involved in the Habitat Conservation Plan can be a lengthy process (several years). In addition, review and approval of the Habitat Conservation Plan by USFWS and issuance of an incidental take permit can take months to years to complete.