When habitat alteration can violate the Endangered Species Act – New USFWS Guidance

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On April 26, the Fish and Wildlife Service (Service) issued new guidance on incidental take for habitat modification.   “Guidance on trigger for an incidental take permit under section 10(a)(1)(B) of the Endangered Species Act where occupied habitat or potentially occupied habitat is being modified,” USFWS April 26, 2018    Since the 1980s, regulations under the Endangered Species Act, 16 U.S.C. § 1531 et seq., (ESA) have made routine ‘habitat modifying’ activities – such as construction, building homes, maintaining trees and rights of way, using water – potential violations of the ESA including its criminal provisions, civil penalties, and suits by third parties. Sections 9, 11; 16 U.S.C. § 1538, 1540.

The Service’s April 26 guidance provides a 3 part test as to when habitat modification may be a ‘take’ of endangered species under Section 9 of the ESA.

  1. Is the modification of habitat significant?
  2. If so, does that modification also significantly impair an essential behavior pattern of a listed species?
  3. And, is the significant modification of the habitat, with a significant impairment of an essential behavior pattern, likely to result in the actual killing or injury of wildlife?

Whether any activity may ‘significantly impair’ an essential behavior pattern or is ‘likely to result’ in killing or injuring protected wildlife can be difficult to determine.   Landowners are typically not experts in behavior and life cycle, and even experts in the field are hesitant to predict biological outcomes.  “Causation” is difficult in any case, and in a matter of species impact can be nearly impossible to prove.

To assist, the Service clarifies that ‘take’ occurs only where ESA-listed species “are known to occur and where their activity or activities are reasonably certain to result in incidental take.”  Memorandum, at 2.

The April 26 Memorandum is directed at Service incidental take permits, which can be issued as associated with specific projects, programmatically, as part of habitat conservation plans, consultation, and other ESA procedures.   The memorandum does provide a brighter line as to the location of  habitat modification potentially subject to the ESA take provisions: those where species are known to occur.  The memorandum also provides greater certainty as to which actions are potentially illegal – those that are reasonably certain to result in incidental take.  Look for details on implementation of the clarification over the next few months.