New Interior guidance prohibits telling developers Endangered Species Act permits are mandatory

Fish and Wildlife Service (FWS) staff can no longer advise builders they need to obtain a permit mandated by law to maintain endangered species habitat, according to new Interior Department guidance.

An April 26 memorandum sent from FWS Principal Deputy Director Greg Sheehan to regional directors wrote that it was “not appropriate” for personnel to tell private parties when it’s required under the law for them to seek an incidental take permit (ITP).

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Businesses and individuals must request an ITP if they believe their developments could interfere with the habitat of endangered species, under the 1973 Endangered Species Act (ESA).

Sheehan writes in the memo: “It is also vital that staff recognize that whether to apply for a section 10(a)(1)(B) permit is a decision of the applicant. 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.”

A section under the ESA allows owners the ability to develop on land they believe might affect the habitat of endangered species if they create a habitat conservation plan and get an ITP. The memo says that when FWS employees advise owners on when they might need to get an ITP, they can no longer say it is a need and that “whether to seek a permit belongs with the private party.”

“They may proceed (at their own risk) as planned without a permit, modify their project and proceed without a permit, or prepare and submit a permit application,” Sheehan’s letter reads. “The biological, legal, and economic risk assesment regarding whether to seek a permit belongs with the private party determining how to proceed.”

One wildlife expert equated the memo to putting a “leash” on employees.

“This new memorandum essentially muzzles FWS biologists from telling private landowners that they need to apply for an incidental take permit when they will harm threatened or endangered species even though it is FWS’s job to ensure listed species are not harmed,” said Noah Greenwald, endangered species director at the Center for Biological Diversity.

Greenwald said the guidance underscores a trend that’s been occurring at the FWS — employees are more relaxed in their ESA enforcement. He believes that the guidance will make it harder to enforce because the FWS will no longer leave a paper trail of recommendations for permits.

“They are putting even a further chill on FWS actually enforcing it,” Greenwald said. “It’s kind of true that it’s the landowner’s choice. They can take the risk or get an ITP — but what happens is a record of liability is essentially erased at this point.”

In early April, the FWS submitted another rule for proposal that would change the protections for threatened species.

The FWS announced it is taking into consideration the “removal” of the policy, adopted under the ESA, that prohibits the harming, harassing, killing and habitat destruction of threatened species. The text of the rule change proposal tailors the protections for all future listed threatened species to instead determine regulations on a species-by-species basis.

“Species listed as a threatened species after the effective date of this rule, if finalized, would have protective regulations only if the Service promulgates a species-specific rule,” read the rule.

As of now, when a species is listed as threatened, a blanket series of protections go into effect; under the new rule, those protections would be decided on a case by case basis.

The FWS submitted the proposal within days of reports that President Trump picked Susan Combs to oversee wildlife and parks at the Interior Department. Combs, a former Texas comptroller, has a long a history of opposing endangered species protections.