The US Fish and Wildlife Service (USFWS) has issued a memo directing its staff that the use of mandatory language related to incidental take permits is “not appropriate” in communications with private forest landowners. The decision confirms that seeking an Incidental Take Permit (ITP) under the Endangered Species Act (ESA) is voluntary pursuant to the risk assessment of the landowner.

In his memo, Principle Deputy Director Sheehan instructs USFWS regional staff members that “whether to apply for a permit is a decision of the applicant.” The memo further states, “Service staff can and should advise non-federal parties on the law, our regulations and guidance, and the potential for take of listed species incidental to their activities, but it is not appropriate to use mandatory language (e.g. a permit is ‘required’) in the course of that communication.”

FLA has been an ardent proponent for streamlining the administrative aspects of the ESA.  FLA met with Sheehan his office in January, and in February, he met with the FLA board to discuss how the USFWS could serve as a better partner to forest landowners.  At the meeting, he stressed “We can’t secure the future of wildlife habitat without engaging the needs of those who share the landscape. To do that we have to strike a regulatory balance.”

FLA’s message to every level of the USFWS has been consistent and relenting:  Our landowners want to be part of the solution – indeed, are the solution – and are willing to help. But they also need regulatory certainty and to be able to continue their timber management activities so that their forest lands remain economically viable.  Forest landowners support reasonable regulation that protects wildlife habitats while keeping working forests economically sustainable.

The ultimate determination to apply for an ITP is in the hands of private citizens, rather than at the directive of government officials. Sheehan stresses in his memo, “(t)he biological, legal, and economic risk assessment regarding whether to seek a permit belongs to the private party determining how to proceed.”

ITP’s are tools used by landowners under the ESA when otherwise lawful activities or projects occurring on private land could impact the habitat of a listed species. In the past, private parties wishing to conduct activities that could impact the habitat of a listed species were often instructed by USFWS staff that an ITP would be required to carry out the project or activity. But, according to guidelines issued by USFWS Principle Deputy Director Sheehan, the ITP process is voluntary and should be initiated by the private party – not the USFWS.

The clarifying guidelines from the USFWS will reduce the burden placed on private parties who wish to conduct otherwise lawful activities on their lands that may impact the habitat of a listed species. That habitat modification may occur is not enough to require an ITP; the activity must be likely to result in the actual injury or death of a listed species.

“The Section 10 guidance was issued as part of an ongoing effort to improve transparency and consistency in the way we advise and manage whether incidental take permits are needed under the Endangered Species Act,” said Jack Arnold, deputy assistant regional director for ecological services in the agency’s Southeast Region. “Our job is to help landowners figure out when a permit may be needed and do that consistently, whether the landowner is in Florida or Oregon.  That’s what this is about.”

FLA commends the USFWS for reducing the regulatory burden on private forest landowners. As landowners have long known, the mere modification of the habitat of a listed species should not be treated as the equivalent of injuring or killing a member of that species. The private property rights of forest landowners to conduct lawful activities on their land should not be curtailed because of remote speculation that harm to a listed species may occur. Private forests, managed under the responsible stewardship of forest landowners, play a key role in supporting biodiversity across the landscape, but overly broad regulations can place costly management burdens on landowners and affect their ability to guarantee healthy habitats.

The memo and accompanying flowchart are part of an effort to help Service employees provide clear, consistent, and accurate advice to landowners while recognizing the final determination whether to apply for a permit rests with the landowner.  The documents are posted on the Service’s website here: www.fws.gov/endangered/esa-library/pdf/Guidance-on-When-to-Seek-an-Incidental-Take-Permit.pdf.  Arnold encouraged landowners to reach out to Ecological Services field offices at www.fws.gov/southeast/ and click on Contact for more information.