August 3, 2004

Public Interest Comment on ESA Incidental Take Permit Revocation Regulations

  • Susan Dudley

    Director, George Washington University Regulatory Studies Center
  • Randy Simmons

Key materials
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Rulemaking:

Endangered Species Act Incidental Take Permit Revocation Regulations

Stated Purpose:

Requesting public comments on the FWS's proposal to reestablish the permit revocation regulations vacated by court order.

Summary of RSP Comment:

The Fish and Wildlife Service (FWS) is proposing to re-issue its Permit Revocation Rule. Under the Endangered Species Act (ESA), the Permit Revocation Rule describes the circumstances under which the FWS may revoke incidental take permits. On December 11, 2003, the U.S. District Court for the District of Colombia in Spirit of Sage Council v. Norton, invalidated these regulations holding that the rule had been adopted without adequately complying with the public notice and comment procedures of the Administrative Procedures Act. This proposed rule first revokes the Permit Revocation Rule that was invalidated by the court and then republishes the exact same rule, this time with adequate opportunity for public comment.

The ESA prohibits people from "taking" (harming or killing) endangered species. The ESA, however, provides that in certain circumstances, it is legal to "take" an endangered species. The main exception is when a landowner has entered into a habitat conservation plan (HCP) with the FWS to protect endangered species on the landowner's property. By entering into a HCP landowners can receive an incidental take permit whereby they can "take" and endangered species if they are engaged in otherwise lawful activity (such as farming).

To create incentives for landowners to create HCPs, the FWS has a "no surprises" policy. As its name implies, "no surprises" provides that most of the time, the FWS is not going to surprise landowners who enter into HCPs by requiring more habitat and regulations from them after they enter into the agreement. There are certain times when the FWS may revoke an incidental take permit, and it may do so in ways that "surprise" people who have valid HCPs. The criteria for the FWS to revoke incidental take permits are described in the Permit Revocation Rule.

HCPs and incidental take permits serve to reduce the liability to landowners of having endangered and threatened species on their property. This proposed rule, which will re-instate the permit revocation rule, enhances the ability of the ESA to protect and enhance populations of threatened and endangered species. However, to make real improvement, the FWS needs to go further and turn endangered and threatened species into assets for landowners, instead of merely limiting the liability landowners face when threatened or endangered species are found on their land.