Project Planning and Endangered Species Act Guidance
The purposes of the Endangered Species Act (ESA) are to provide a means for conserving the ecosystems upon which endangered and threatened species depend and a program for the conservation of such species. The ESA addresses these purposes for both Federal (section 7) and non-Federal (section 10) projects. Anyone who is conducting otherwise-lawful activities that will result in the "incidental take” (that is incidental to the activity and not the purpose of the activity) of a listed wildlife species needs a permit. If a project is federally funded, authorized, or carried out by a Federal agency, the permitting process is conducted through section 7 consultation. Otherwise, the Habitat Conservation Plan process is the means for a non-Federal entity or individual to seek authorization for "incidental take."
of the ESA directs all Federal agencies to participate in conserving endangered and threatened species. Section 7(a)(1) of the ESA charges Federal agencies to aid in the conservation of listed species. Section 7(a)(2) of the ESA requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure that actions they fund, authorize, permit, or otherwise carry out will not jeopardize the continued existence of any listed species or adversely modify designated critical habitats. Federal agencies are not required to contact the Service if a proposed action will have no effect on listed species, or if no species are present in the . However, Federal agencies must initiate consultation with the Service if a proposed action may affect one or more listed species. Please visit the Service’s national page for section 7 questionsor the Austin Office FAQ's for Section 7.
Section 10(a)(1)(B) of the ESA provides for partnerships with non-Federal parties to conserve the ecosystems upon which listed species depend, ultimately contributing to their recovery. This is done through Habitat Conservation Plans (HCPs), which are planning documents required as part of an application for an incidental take permit. The ESA prohibits the "take" of listed species through harm or habitat destruction. In amendments to the ESA passed in 1982, Congress authorized the Service (through the Secretary of the Interior) to issue permits for the "incidental take" of endangered and threatened wildlife species. Thus, permit holders can proceed with activities that are legal in all other respects, but that result in the "incidental" taking of a listed species. HCPs are planning documents required as part of an application for an incidental take permit. They describe the anticipated effects of the proposed taking, how those impacts will be minimized or mitigated, and how the HCP is to be funded. HCPs can apply to listed and non-listed species, including those species that are candidates for listing or that have been proposed for listing. Conserving species before they are in danger of extinction, or are likely to become so, can also provide early benefits and prevent the need for listing. Please visit the Service’s national HCP FAQ page for more details or the Austin Office FAQ's for HCP's.
Common FAQ's
How do we know if we have listed species on our project site?
The Service maintains the Information for Planning and Conservation (IPaC) website where you can input your project location information and receive a list of species that may be in your project area. We recommend inputting the entire potential Action Area for the project. Action Area means all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. For more information on listed species, please visit the Environmental Conservation Online System (ECOS). If your project will not affect a listed species, there is no need to contact the Service.
What is "take"?
The ESA defines “take” as “. . . to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” “Harm” includes significant habitat modification that actually kills or injures a listed species through impairing essential behavior such as breeding, feeding, or sheltering. In addition to the direct take of an individual animal, habitat destruction or modification can be considered take, regardless of whether it has been formally designated as critical habitat, if it would result in the death or injury of wildlife by removing essential habitat components or impairing essential behavior patterns, including breeding, feeding or sheltering (Code of Federal Regulations 50 §17.3). Section 9 of the ESA prohibits take of endangered species. Thus, the purpose of the incidental take permit is to exempt non-Federal permit-holders from the prohibitions of section 9, not to authorize the activities that result in take. Other authorizations (e.g., from State or local governments) may also be needed to lawfully pursue the proposed activities.
Can I expect a response to my request for the Service to review my project?
The Austin Field Office can only respond to those requests where a federally threatened or endangered species may be present and/or affected by a proposed project. For these projects an incidental take permit may be advisable.
Should I also contact the State of Texas if I'm impacting federally listed species?
The State of Texas protects certain species. Please contact the Texas Parks and Wildlife Department, Endangered Resources Branch, 4200 Smith School Road, Austin, Texas 78744 (telephone 512/389-4800) for information concerning fish, wildlife, and plants of State concern or visit the Wildlife Habitat Assessment Program website.
Are incidental take permits needed for listed plants?
Federal prohibitions for plants are found under section 9(a)(2) of the ESA. There are several prohibitions for endangered species of plants in areas under Federal jurisdiction, prohibitions on interstate and foreign commerce, and on the import or export of these species. It is also unlawful to violate regulations pursuant to section 4 of the ESA for threatened species of plants. State listed plants may have additional prohibitions under State law, but State law does not require a Federal permit. Even when there is not a Federal prohibition, the Service analyzes the effects of the permit on listed plant species because section 7 of the ESA requires that issuing an incidental take permit may not jeopardize any listed species, including plants. In general, it is a good idea to include conservation measures for listed plant species in section 7 and 10 consultations.
What is the difference between habitat that is critical for a species versus the Service’s designated critical habitat?
Most species listed pursuant to the ESA have specific habitat requirements for feeding, breeding, and sheltering, which we define in the final rule listing the species. However, not all species have Service designated critical habitat, which is the specific area within the geographic area, occupied by the species at the time it was listed, that contains the physical or biological features (PBF) that are essential to the conservation of endangered and threatened species and that may need special management or protection. Critical habitat may also include areas that were not occupied by the species at the time of listing but are essential to its conservation. Without these requirements being met, the species no longer uses those habitats. For example, the endangered golden-cheeked warbler requires the peeling bark of Ashe juniper trees for nest building. Without the presence of the Ashe juniper, the warbler will also not be present. Therefore, Ashe juniper is critical to the golden-cheeked warbler for breeding and sheltering. However, the warbler does not have Service designated critical habitat.
Service designated critical habitat is a tool that supports the continued conservation of imperiled species by guiding cooperation within the Federal government. Service critical habitat designations affect only Federal agency actions or federally funded or permitted activities, not the activities of non-Federal entities like States and private landowners. For more detailed information about Service designated critical habitat and to see what species have designated critical habitat, please visit the national Service website page for critical habitat.
Contact for Section 7 Consultations and HCPs:
Christina Williams
Division Supervisor
1505 Ferguson Ln
Austin, Texas 78754
Christina_Williams@fws.gov
