Endangered Species Act (federal)

Overview

An Endangered Species Act Recovery Act is needed for any research involving a species listed as threatened or endangered under the ESA. The ESA prohibits activities that constitute take of listed species unless a Federal permit is issued that allows such activity. The ESA’s definition of “take” includes such activities as pursuing, harassing, trapping, capturing, or collecting in addition to hunting, shooting, harming, wounding, or killing.

The Bird Banding Lab requires that an ESA permit be issued before the BBL will issue a banding permit that includes endangered species.

Pro tip: allow plenty of time to receive your permit, as it can take 9-12 months.

Research on a species listed under the ESA requires a ‘recovery permit.’ A typical use of a recovery permit is to allow for scientific research on a listed species in order to understand better the species’ long-term survival needs. Interstate commerce permits allow transport and sale of listed species across State lines (e.g., for purposes such as a breeding program).

In some cases, you may need an ESA permit even if you are researching non-ESA-listed species. If you intend to conduct activities in a location where ESA-listed species may occur, contact the appropriate USFWS Regional Endangered Species permit issuing office before applying for an MBTA permit to determine whether an ESA permit is needed. The USFWS has no official policy at this time. The OC has asked the USFWS to issue formal guidance but in the meanwhile, err on the side of caution. If you will use non-selective capture techniques ( such as mist nets or rocket nets, for instance) or using other techniques such as predator playback or nest searching in an area where a federally-listed species is known to occur and within the habitats where it occurs, then you should communicate with the endangered Species office. They will determine if you will need an endangered species “Section 10” (incidental take) permit. This would be true for all endangered Species, not just listed bird species. If the endangered Species office determines that your activity is not likely to impact a listed species in the project area, then you should obtain a written determination for your records. It is advisable to contact the endangered Species office before applying for a Section 10 permit; provide as much detail as possible about your project so they can make this determination.

If an ESA permit is needed, the MBTA permit application should state that the Endangered Species permit issuing office has advised that an ESA permit is also need and the species for which this permit is needed should be stated in the MBTA permit application. The Division of Migratory Bird Management and the Division of Endangered Species will coordinate that permit review and issuance.

Application Forms

Recovery and Interstate Commerce Permit

Note: to import or export research samples under the Endangered Species Act, a separate permit is needed. See the Ornithological Council’s Import Guide.

Regulations

TITLE 50 WILDLIFE AND FISHERIES
CHAPTER I–UNITED STATES FISH AND WILDLIFE SERVICE
PART 17 ENDANGERED AND THREATENED WILDLIFE AND PLANTS

Subpart C Endangered Wildlife

Sec. 17.22 Permits for scientific purposes, enhancement of propagation or survival, or for incidental taking.

Upon receipt of a complete application, the Director may issue a permit authorizing any activity otherwise prohibited by Sec. 17.21, in accordance with the issuance criteria of this section, for scientific purposes, for enhancing the propagation or survival, or for the incidental taking of endangered wildlife. Such permits may authorize a single transaction, a series of transactions, or a number of activities over a specific period of time. (See Sec. 17.32 for permits for threatened species.) The Director shall publish notice in the Federal Register of each application for a permit that is made under this section. Each notice shall invite the submission from interested parties, within 30 days after the date of the notice, of written data, views, or arguments with respect to the application. The 30-day period may be waived by the Director in an emergency situation where the life or health of an endangered animal is threatened and no reasonable alternative is available to the applicant. Notice of any such waiver shall be published in the Federal Register within 10 days following issuance of the permit.

(a)(1) Application requirements for permits for scientific purposes or for the enhancement of propagation or survival. A person wishing to get a permit for an activity prohibited by Sec. 17.21 submits an application for activities under this paragraph.

The Service provides Form 3-200 for the application to which all of the following must be attained:
(i) The common and scientific names of the species sought to the covered by the permit, as well as the number, age, and sex of such species, and the activity sought to be authorized (such as taking, exporting, selling in interstate commerce);

(ii) A statement as to whether, at the time of application, the wildlife sought to be covered by the permit (A) is still in the wild, (B) has already been removed from the wild, or (C) was born in captivity;

(iii) A resume of the applicant’s attempts to obtain the wildlife sought to be covered by the permit in a manner which would not cause the death or removal from the wild of such wildlife;

(iv) If the wildlife sought to be covered by the permit has already been removed from the wild, the country and place where such removal occurred; if the wildlife sought to be covered by the permit was born in captivity, the country and place where such wildlife was born;

(v) A complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be used, displayed, or maintained;

(vi) If the applicant seeks to have live wildlife covered by the permit, a complete description, including photographs or diagrams, of the facilities to house and/or care for the wildlife and a resume of the experience of those person who will be caring for the wildlife;

(vii) A full statement of the reasons why the applicant is justified in obtaining a permit including the details of the activities sought to be authorized by the permit;

(viii) If the application is for the purpose of enhancement of propagation, a statement of the applicant’s willingness to participate in a cooperative breeding program and to maintain or contribute data to a studbook;

(a) (2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (a)(1) of this section, the Director will decide whether or not a permit should be issued. In making this decision, the Director shall consider, in addition to the general criteria in Sec. 13.21(b) of this subchapter, the following factors:

(i) Whether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit;
(ii) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit;
(iii) Whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population from which the wildlife sought to be covered by the permit was or would be removed;
(iv) Whether the purpose for which the permit is required would be likely to reduce the threat of extinction facing the species of wildlife sought to be covered by the permit;
(v) The opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application; and
(vi) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application.

(a)(3) Permit conditions. In addition to the general conditions set forth in part 13 of this subchapter, every permit issued under this paragraph shall be subject to the special condition that the escape of living wildlife covered by the permit shall be immediately reported to the Service office designated in the permit.

(a)(4) Duration of permits. The duration of permits issued under this paragraph shall be designated on the face of the permit.

(b)(1) Application requirements for permits for incidental taking. A person wishing to get a permit for an activity prohibited by Sec. 17.21(c) submits an application for activities under this paragraph. The Service provides Form 3-200 for the application to which all of the following must be attached:

(i) A complete description of the activity sought to be authorized;

(ii) The common and scientific names of the species sought to be covered by the permit, as well as the number, age, and sex of such species, if known;

(iii) A conservation plan that specifies:

(A) The impact that will likely result from such taking;
(B) What steps the applicant will take to monitor, minimize, and mitigate such impacts, the funding that will be available to implement such steps, and the procedures to be used to deal with unforeseen circumstances;
(C) What alternative actions to such taking the applicant considered and the reasons why such alternatives are not proposed to be utilized; and
(D) Such other measures that the Director may require as being necessary or appropriate for purposes of the plan;

(b)(2) Issuance criteria.
(i) Upon receiving an application completed in accordance with paragraph (b)(1) of this section, the Director will decide whether or not a permit should be issued. The Director shall consider the general issuance criteria in Sec. 13.21(b) of this subchapter, except for Sec. 13.21(b)(4), and shall issue the permit if he or she finds that:

(A) The taking will be incidental;
(B) The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such takings;
(C) The applicant will ensure that adequate funding for the conservation plan and procedures to deal with unforeseen circumstances will be provided;
(D) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;
(E) The measures, if any, required under paragraph (b)(1)(iii)(D) of this section will be met; and
(F) He or she has received such other assurances as he or she may require that the plan will be implemented.

(ii) In making his or her decision, the Director shall also consider the anticipated duration and geographic scope of the applicant’s planned activities, including the amount of listed species habitat that is involved and the degree to which listed species and their habitats are affected.

(b)(3) Permit conditions. In addition to the general conditions set forth in part 13 of this subchapter, every permit issued under this paragraph shall contain such terms and conditions as the Director deems necessary or appropriate to carry out the purposes of the permit and the conservation plan including, but not limited to, monitoring and reporting requirements deemed necessary for determining whether such terms and conditions are being complied with. The Director shall rely upon existing reporting requirements to the maximum extent practicable.

(b)(4) Duration of permits. The duration of permits issued under this paragraph shall be sufficient to provide adequate assurances to the permittee to commit funding necessary for the activities authorized by the permit, including conservation activities and land use restrictions. In determining the duration of a permit, the Director shall consider the duration of the planned activities, as well as the possible positive and negative effects associated with permits of the proposed duration on listed species, including the extent to which the conservation plan will enhance the habitat of listed species and increase the long-term survivability of such species.

(b)(5) Assurances provided to permittee in case of changed or unforeseen circumstances. The assurances in this paragraph (b)(5) apply only to incidental take permits issued in accordance with paragraph (b)(2) of this section where the conservation plan is being properly implemented, and apply only with respect to species adequately covered by the conservation plan. These assurances cannot be provided to Federal agencies. This rule does not apply to incidental take permits issued prior to March 25, 1998. The assurances provided in incidental take permits issued prior to March 25, 1998 remain in effect, and those permits will not be revised as a result of this rulemaking.

(i) Changed circumstances provided for in the plan. If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and were provided for in the plan’s operating conservation program, the permittee will implement the measures specified in the plan.

(ii) Changed circumstances not provided for in the plan. If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and such measures were not provided for in the plan’s operating conservation program, the Director will not require any conservation and mitigation measures in addition to those provided for in the plan without the consent of the permittee, provided the plan is being properly implemented.

(iii) Unforeseen circumstances.
(A) In negotiating unforeseen circumstances, the Director will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed upon for the species covered by the conservation plan without the consent of the permittee.
(B) If additional conservation and mitigation measures are deemed necessary to respond to unforeseen circumstances, the Director may require additional measures of the permittee where the conservation plan is being properly implemented, but only if such measures are limited to modifications within conserved habitat areas, if any, or to the conservation plan’s operating conservation program for the affected species, and maintain the original terms of the conservation plan to the maximum extent possible. Additional conservation and mitigation measures will not involve the commitment of additional land, water or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the conservation plan without the consent of the permittee.
(C) The Director will have the burden of demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available. These findings must be clearly documented and based upon reliable technical information regarding the status and habitat requirements of the affected species. The Director will consider, but not be limited to, the following factors:

(1) Size of the current range of the affected species;
(2) Percentage of range adversely affected by the conservation plan;
(3) Percentage of range conserved by the conservation plan; (4) Ecological significance of that portion of the range affected by the conservation plan;
(5) Level of knowledge about the affected species and the degree of specificity of the species’ conservation program under the conservation plan; and
(6) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild. (6) Nothing in this rule will be construed to limit or constrain the Director, any Federal, State, local, or Tribal government agency, or a private entity, from taking additional actions at its own expense to protect or conserve a species included in a conservation plan.
(7) Discontinuance of permit activity. Notwithstanding the provisions of Sec. 13.26 of this subchapter, a permittee under this paragraph (b) remains responsible for any outstanding minimization and mitigation measures required under the terms of the permit for take that occurs prior to surrender of the permit and such minimization and mitigation measures as may be required pursuant to the termination provisions of an implementing agreement, habitat conservation plan, or permit even after surrendering the permit to the Service pursuant to Sec. 13.26 of this subchapter. The permit shall be deemed canceled only upon a determination by the Service that such minimization and mitigation measures have been implemented. Upon surrender of the permit, no further take shall be authorized under the terms of the surrendered permit.
(8) Criteria for revocation. A permit issued under paragraph (b) of this section may not be revoked for any reason except those set forth in Sec. 13.28(a)(1) through (4) of this subchapter or unless continuation of the permitted activity would be inconsistent with the criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been remedied.