Section 10 of the  Endangered Species Act (ESA) allows an individual or private citizen to “take” a listed species if they develop a Habitat Conservation Plan (HCP). This is in contrast to Section 7 of the ESA, which regulates federal government actions.The purpose of the HCP process and issuance of Incidental Take Permits (ITPs) is to authorize the incidental take of threatened or endangered species, not to authorize the underlying activities that result in take (typically the CEQA process will identify the potential need for a HCP in California).

This process ensures that the effects of the authorized incidental take will be adequately minimized and mitigated to the maximum extent practicable. As with Section 7, the HCP process is overseen by the United States Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS). As of early 2016, over 1,000 total HCPs have been approved in the US covering more than 46 million acres of land. Approximately 1 million of those acres are in California.

ITPs are required for:

“any activity that could result in take of a threatened or endangered species by an individual, corporation, local agency, state agency, or other non-federal entity.”

To receive an ITP under Section 10 you must complete a HCP. 

How to Get an ITP Under Section 10 of the ESA

The ITP process under Section 10 is divided into 3 steps:

Step 1: Preparing the HCP and Permit Application

Preparing the HCP is the first, and most important step of the HCP process. HCPs can cover very large areas with multiple species and habitats, or they can be very small and cover a single impact to one species. More comprehensive plans are required for the HCPs that cover many species and large areas due to the overlapping jurisdictions and competing local and regional regulations and interests.

At a minimum each plan must include:

  • An assessment of the likely impacts on protected species
  • Measures that will be taken to minimize and mitigate for impacts
  • An analysis of alternatives not chosen
  • Funding assurances
  • Measures that will be taken to monitor and manage species and their habitats

Other Items Submitted

  • Incidental Take Permit Application (Download Here)
  • $100 Application Fee
  • Often a draft Implementing Agreement (IA) is included with the permit application for larger plans. An IA is a contract that describes the roles and responsibilities of the permit holder, the federal wildlife agency, and any other parties responsible for implementing the HCP. USFWS requires an IA for large regional HCPs, but IAs are optional for smaller, single project HCPs. (download a template IA here)
  • National Environmental Quality Act (NEPA) requires that federal agencies (i.e. USFWS) “to evaluate the impact of their actions on the environment as a whole”, and issuing an ITP is considered a “discretionary action” that is subject to NEPA. Therefore, a draft NEPA document, such as an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), must be included with the permit application. (Learn more here)
Step 2: Incidental Take Permit Review and Processing

Before issuing an ITP, the USFWS must make the following findings:

  • the taking is incidental to an otherwise lawful activity; ·
  • impacts are monitored, minimized, and mitigated to the maximum extent practicable; ·
  • procedures are provided to deal with unforeseen circumstances; ·
  • adequate funds exist to implement the HCP; and
  • the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.

In addition, the NEPA document must be completed prior to issuing the ITP. EA’s and EIS’s require a lengthy public review process. EIS’s are usually required during the HCP process because applicants seeking ITPs are likely to have significant impacts to listed species according to NEPA.

This permit processing ends with the following documents submitted to the applicant: ·

  • Biological Opinion (learn more); ·
  • Federal ESA required findings; ·
  • Finding of No Significant Impact or Record of Decision (NEPA document findings) ·
  • Implementation Agreement (if necessary); and ·
  • Incidental Take Permit

Review and processing of ITPs for large HCPs that cover vast regional resources can take up to one year to complete starting from the time that they are submitted to the agencies for review.

Step 3: Implementing the ITP

Once the ITP is issued it is posted to the Federal Register, and the applicant is then responsible for implementing the HCP. This responsibility includes monitoring the levels of take, funding the HCP, and implementing and complying with all measures identified in the HCP, permit conditions, and IA. The USFWS is responsible for monitoring compliance with the permit conditions. For small project HCPs, the post-permit implementation may take no longer than the time necessary to construct the project and install mitigation measures such as habitat replacement or restoration. For large regional HCPs, the implementation phase may extend for the life of a multi-year or multi-decade permit. If conservation areas are established, they typically must be managed in perpetuity.