Subverting Congress' Intent: The Recent Misapplication of Section 10 of the Endangered Species Act and Its Consequent Impacts on Sensitive Wildlife and Habitat

Abstract

Section 9 of the Endangered Species Act, or the ESA, strictly prohibits any person or other entity from “taking” any endangered or threatened species, whether purposefully or incidentally. In section 10 of the ESA, Congress created two distinct permit mechanisms to allow the U.S. Fish and Wildlife Service, or FWS, to authorize take in certain limited circumstances — namely recovery permits for purely scientific research and incidental take permits, or ITPs, for nonscientific endeavors where such taking is incidental to, and not the purpose of, an otherwise lawful activity. Because scientific research benefitting the species at issue is not a primary objective of the second type of permit, Congress created a carefully calibrated permitting regime for ITPs. These permits provide certain safeguards that ensure extensive public comment opportunities and environmental review under the National Environmental Policy Act — safeguards that, naturally, are less extensive for scientific permits. In recent years, however, the FWS has, in various instances, conflated the distinct purposes of these two statutory permitting schemes. The agency has issued recovery permits to entities seeking authorization for incidental takes rather than scientific research, which has resulted in the issuance of permits to developers with far less public scrutiny and review than Congress intended. This Article analyzes the applicable legislative history and statutory text, assesses recent examples of the conflation of these two distinct permitting schemes, and examines the public policy rationales against the agency’s continued short-circuiting of congressional safeguards through the issuance of recovery permits for incidental takes that are not tantamount to pure scientific research.

Keywords: Wildlife, biodiversity, Endangered Species Act, critical habitat, incidental take permit, scientific recovery permit, enhacement permit, take prohibition, FIsh and Wildlife Service, FWS, developers, land use