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Complex Permits Under Section 10 of the Endangered Species Act

David Zippin, Kathleen C. Schroder, Endangered Species Act: Current and Emerging Issues Affecting Resource Development

Section 10 of the Endangered Species Act (ESA) provides a seemingly straightforward mechanism to obtain permits authorizing the incidental take of listed species and permits authorizing the enhancement of their survival. Section 10 permits, however, can be anything but straightforward. Section 10 permits can cover thousands if not millions of acres, authorize incidental take by hundreds of actors, and apply to dozens of species. The most complex section 10 permits cover lands in states such as California, Florida, and Texas where most listed species occur and where urban development expanded rapidly in the last several decades. As the list of threatened and endangered species grows, land users in other parts of the country are expected to utilize more complex section 10 permits.

Complex section 10 permits are dynamic and can be structured to accommodate a wide variety of situations. One or more local governments can hold a section 10 permit to provide incidental take authorization to projects under their jurisdiction. A section 10 permit can cover a species' entire range, which may span multiple states. A habitat conservation plan that accompanies an incidental take permit issued pursuant to section 10(a)(1)(B) permit can cover dozens of species, both listed and not listed. A consortium of state governments can hold a section 10 permit that spans multiple states and co