An incidental take permit, or ITP, is an authorization from the California Department of Fish and Wildlife (CDFW) or U.S. Fish and Wildlife Service (USFWS) that covers the incidental, non-intentional harm or accidental death of Threatened and Endangered species if such 'take' occurs during lawful activities. Threatened and Endangered species are listed as such through processes defined by the California Endangered Species Act (CESA) and the Federal Endangered Species Act (FESA). The CDFW has the authority to authorize entities to “take” a species listed under CESA as Threatened or Endangered—such as the Mohave ground squirrel and Swainson's hawk, or Candidates for listing such as Crotch's bumble bee and burrowing owl. Likewise, the USFWS has the authority to issue take authorizations under Sections 7 and 10 of the FESA for Threatened or Endangered species such as coastal California gnatcatcher or Mojave Desert tortoise. An ITP would be required if the project would result in direct harm or mortality to endangered or threatened species, or wildlife harassment. An ITP may also be required if the project impacts listed species habitat or USFWS-designated Critical Habitat. This includes activities that alter, degrade, fragment, or result in habitat loss; create barriers to species movement; generate noise or light pollution; degrade air or water quality; or introduce invasive species.
While incidental take may seem destructive at first glance, an ITP is in fact a means of protecting Threatened and Endangered species, as ITPs contain requirements for avoiding, minimizing, or mitigating the effects of the permitted action or project on the listed species covered by the ITP. An independent third-party consultant can assist in writing the ITP application. Additionally, a consultant team can assist in helping project owners to avoid the need to acquire an ITP by describing how the project would avoid taking the species or habitat in question. If the project or action cannot be implemented without taking a listed species or its occupied habitat, obtaining an ITP is essential. The following discussion provides descriptions of state and federal ITP application processes.
California Endangered Species Act Incidental Take Permit Process
If studies and surveys indicate that a state listed species and their habitat occurs on-site and would be affected by the proposed project, the project owner, with assistance from their consulting biologist, would complete an ITP application for submission to CDFW. The application includes 13 components that include an application fee, project description, information about the occurrence of the listed species on the project site, analyses of the effects of the project on the listed species, proposed measures to avoid, mitigate, or minimize those effects, and a description of how those measures would be funded, among other aspects.
Once the application has been compiled, the biological consultant will submit the application on behalf of the project applicant through the CDFW online Environmental Permit Information Management System (EPIMS). CDFW then has 60 days to review the application before responding with questions, revisions, or requests for additional information. There may be some back-and-forth involved in the application process to address requests for information from CDFW. CDFW staff will use the information from the ITP application and responses to subsequent information requests to write the ITP. There will be opportunities for the project applicant to negotiate mitigation ratios, permit conditions, and off-site mitigation areas as CDFW staff prepare the ITP. This process may take up to six months for the ITP to be issued.
The issued ITP will include a project description, a discussion of the project effects on the covered species, specific measures that must be implemented before, during, and after construction of the project, a statement authorizing incidental take of the covered species, Conditions of Approval, and Mitigation Monitoring and Reporting Program (MMRP) requirements. The Conditions of Approval and MMRP will comprise the bulk of the ITP and will include requirements such as survey and monitoring plans, monitoring of construction activities by a Designated Biologist, pre-construction surveys, translocation or transplantation of covered species, on-site and/or off-site mitigation, and reporting compliance with the ITP to CDFW.
Federal Endangered Species Act Incidental Take Permit Processes
FESA provides two pathways for obtaining incidental take permissions from USFWS: either an incidental take statement through Section 7 or an ITP through Section 10. Either pathway may require that the project applicant demonstrates compliance with the National Environmental Policy Act (NEPA).
Section 7 mandates that federal agencies consult with USFWS (or National Marine Fisheries Service for marine organisms) before taking any action that may affect a listed Endangered or Threatened species or their Critical Habitat. Thus, a federal nexus is needed to proceed toward an incidental take statement through Section 7. A federal nexus would occur if the project is to be implemented on federal lands, if a federal agency is reviewing it, or if it receives federal funding. A nexus may also be established if the project includes federal jurisdiction, such as if the Army Corps of Engineers has jurisdiction over Waters of the U.S. that would be affected by the project. During a Section 7 consultation, the lead federal agency would consult with USFWS (or the National Marine Fisheries Service) to assess potential impacts of the proposed project or action on the listed species, determine alternatives or actions to minimize negative effects on listed species, and ensure that project activities do not jeopardize the continued existence of listed species.
During a Section 7 consultation, a Biological Assessment is prepared, which may be considered an application of sorts. The Biological Assessment may be prepared by the lead federal agency or the project applicant's biological consultant. The Biological Assessment will define the action area, which involves describing the proposed project and its location; assess which species may be affected by the proposed project or action, which involves determining the habitats and species that may occur on the action area; and conduct an impact analysis, which involves evaluating the potential direct and indirect effects of the proposed action on the listed species and Critical Habitat. Any measures that the project applicant intends to implement to avoid or minimize project effects on listed species or Critical Habitat may be proposed in the Biological Assessment as part of the project description. If the proposed project or action may adversely affect a listed species or its Critical Habitat, the lead federal agency would then enter into formal consultation with USFWS. The federal lead agency would submit the Biological Assessment to USFWS (or the National Marine Fisheries Service), who would respond with a Biological Opinion that includes a statement as to whether the action is likely to jeopardize (or not jeopardize) a listed species or adversely modify its Critical Habitat. Biological Opinions can range from "no effect", when it is determined that the proposed project or action would have no impact on listed species or Critical Habitat, to "may affect, not likely to adversely affect", when it is determined that the proposed project or action may affect the species but is not likely to jeopardize them, to "may affect, likely to adversely affect", when it is determined that the proposed project or action is likely to jeopardize the species or destroy critical habitat. A determination of "may affect, not likely to adversely affect" typically requires mitigation measures that must be implemented by the project applicant to ensure effects to listed species or Critical Habitat are avoided or minimized. If a determination of "may affect, likely to adversely affect" is made, USFWS typically suggests reasonable and prudent alternatives to the proposed project or action to avoid causing jeopardy or adverse modification, but this typically involves significant modifications to the proposed project or project abandonment. The formal consultation process typically takes about 60 days.
Section 10(a)(1)(B) of FESA allows USFWS to issue ITPs to individuals or entities in the absence of a federal nexus that would allow for a Section 7 consultation. Under this section, the project applicant would develop a Habitat Conservation Plan (HCP) that outlines how they will minimize and mitigate the impacts of their project or activity on the listed species and how they will implement monitoring plans to ensure effectiveness. The process for obtaining an approved HCP may take as little as several months for a “low effect” HCP to several years for a standard HCP or a Multiple Species Habitat Conservation Plan (MSHCP).
The HCP process begins with a project concept and feasibility stage, which involves initial project scoping, site selection, and assessments of environmental constraints and permitting requirements. When a project and site have been selected, the project applicant will implement baseline environmental studies to characterize existing site conditions and identify potential project impacts on listed species and/or Critical Habitat. With this information, the project applicant will finalize the project design with measures for avoiding, minimizing, and mitigating impacts on listed species and Critical Habitat. The project applicant will then seek a pre-application consultation with USFWS to discuss the project, review baseline data, and ask for guidance on the permit process and application requirements. The project applicant, with assistance from their biological consultant, will develop the HCP as well as Candidate Conservation Agreement with Assurances (CCAA), or Safe Harbor Agreement (SHA), or other required application materials, as needed. The project applicant will submit the application package to USFWS, who will review the application and respond with a permit decision. An approved ITP will be issued with terms and conditions for project implementation and permit compliance, which typically include monitoring, reporting, and adaptive management requirements.
If a federally listed species is also listed under CESA, Fish and Game Code section 2080.1 allows an applicant who has obtained a federal incidental take statement (federal Section 7 consultation) or a federal incidental take permit (federal Section 10(a)(1)(B)) to request a Consistency Determination from CDFW. If the Consistency Determination is issued by CDFW, no further authorization or approval is necessary under CESA.
Learn more about how a consulting team can help successfully obtain an ITP for your project.
