Endangered Species Act — Definition of “Harm” and “Take”by Hugh Holub on May. 22, 2011, under Center for Biological Diversity, climate change, endangered species act, environment water and energy, global warming, litigious environmental groups, politics, Western Watershed Project, WildEarth Guardians
Since I am posting a lot of articles and commentaries about the Endangered Species Act…and abuses of that law….I am posting source information from the US Fish and Wildlife Service to provide background:
The Endangered Species ActBy Virginia S. Albrecht and James N. Christman of Hunton & Williams LLP
Section 9: “Take” of Endangered or Threatened SpeciesESA § 9 prohibits everyone, private person and federal agency alike, from “taking” endangered wildlife. The regulations extend this to threatened animals (see e.g. , 50 C.F.R. §§ 17.31, 17.21). “Take” includes “harming” a listed species,  and “harm” is defined by FWS regulation to include habitat alteration:
Harm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impacting essential behavioral patterns, including breeding, feeding, or sheltering.
50 C.F.R. § 17.3. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon , 515 U.S. 687 (1995). Section 11(b) of the ESA makes it a crime knowingly to “take” an endangered species without a permit or violate a regulation implementing the ESA. 16 U.S.C. § 1540(b)(1). You are permitted, however, to defend yourself of others from bodily harm. 16 U.S.C. § 1540(b)(3).
This prohibition against “take” covers fish and wildlife but not plants. Cf . 16 U.S.C. § 1532(8) and § 1532(14). It is, however, illegal to remove an endangered plant from federal land and reduce it to possession, and federal law also federalizes state law prohibitions on the taking of plants.
The Secretary may issue a permit for an “incidental take” of listed species that are incidental to and not for the purpose of a proposed activity (ESA § 10). Permits may be issued only after the landowner submits a “habitat conservation plan” (HCP), including proposed mitigation measures and an explanation of why alternatives were rejected. If FWS finds that the “take” will be incidental, will be satisfactorily mitigated, and will not appreciably reduce the species’ chances for survival or recovery, it must issue the permit. There has been a move afoot recently to incorporate a “recovery” standard into HCPs, which would mean that HCPs would have to contribute affirmatively to the recovery of affected species, whereas under present law an HCP can be approved so long as it does not degrade the species further. HCPs can be very expensive to prepare and are especially burdensome for small businessmen and small landowners.
In 1996 the FWS and NMFS issued a joint Handbook for Habitat Conservation Planning and Incidental Take Permitting Process (HCP Handbook), which explains that HCPs may be processed under three models. 61 Fed. Reg. 63,854 (December 2, 1996); see also notice of draft addendum, 64 Fed. Reg. 11,485 (March 9, 1999). It created a “low-effect” HCP category for small landowners and other low-impact projects that have only minor or negligible effects on listed species or other environmental resources. A low-effect HCP is exempt from the National Environmental Policy Act (NEPA) and does not require an environmental assessment or environmental impact statement. “Moderate” HCPs require an environmental assessment, and “high-effect” ones require an environmental impact statement.
FWS’s and NMFS’s “no surprises” rule, 63 Fed. Reg. 8859 (February 23, 1998), allows an applicant for an incidental take permit to negotiate long-term assurances that no additional mitigation of impacts will be required, even if circumstances change. The rule provides some assurance that no additional land use restrictions or financial compensation will be required from the permit holder if unforeseen circumstances arise indicating that additional mitigation is necessary. It has been challenged in court by environmentalists.
In mid-1997 FWS and NMFS published a series of proposals having to do with their Safe Harbor Policy and Candidate Conservation Agreements.  The final version was published in June 1999. 64 Fed. Reg. 32,706, 32,717, 32,726 (June 17, 1999). Safe Harbor agreements are an attempt to soften the rule that no good deed goes unpunished. Landowners are often willing to manage their properties so as to improve habitat but may fear that if they are too successful and endangered animals colonize their land, they will then be prohibited from using the land in the future because of the § 9 “take” prohibition. In return for voluntarily undertaking land management activities that will provide a “net conservation benefit,” the landowner receives assurances that he will be allowed to alter or modify the property even if the alteration will result in an incidental “take” that would return the species back to originally agreed-upon “baseline conditions.” 62 Fed. Reg. 32,180 col. 1-2 (June 12, 1997).
Candidate Conservation Agreements, as their name suggests, apply to species that are not yet listed as threatened or endangered but are being considered for listing. They provide assurances that, if the covered species are eventually listed, the property owners or state or local land managing agencies will not be required to do more than the agreement calls for. 62 Fed. Reg. 32,183 col. 3 (June 12, 1997).
[Federal Register: November 8, 1999 (Volume 64, Number 215)]
[Rules and Regulations] [Page 60727-60731]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08no99-20] [[Page 60727]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222 [Docket No. 980414094-9287-02; I.D. No. 091797A] RIN 0648-AK55
Endangered and Threatened Wildlife and Plants; Definition of “Harm”
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
SUMMARY: This final rule defines the term “harm”, which is contained in the definition of “take” in the Endangered Species Act (ESA). The purpose of this rulemaking is to clarify the type of actions that may result in a take of a listed species under the ESA. This final rule is not a change in existing law. It provides clear notification to the public that habitat modification or degradation may harm listed species and, therefore, constitutes a take under the ESA as well as ensuring consistency between NMFS and the Fish and Wildlife Service (FWS). This final rule defines the term “harm” to include any act which actually kills or injures fish or wildlife, and emphasizes that such acts may include significant habitat modification or degradation that significantly impairs essential behavioral patterns of fish or wildlife.
DATES: This rule is effective on December 8, 1999.
ADDRESSES: Chief, Endangered Species Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Chris Mobley, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, phone (301)713-1401 or Garth Griffin, NMFS, 525 NE Oregon St, Suite 500, Portland, OR 97232, phone (503)231- 2005.
Background info on Endangered Species Act:
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