View all text of Subpart D [§ 17.31 - § 17.48]
§ 17.32 - Permits for threatened species.
Upon receipt of a complete application, the Director may issue a permit for any activity otherwise prohibited with regard to threatened wildlife. The permit shall be governed by the provisions of this section unless a species-specific rule applicable to the wildlife and set forth in §§ 17.40 through 17.48 provides otherwise. A permit issued under this section must be for one of the following purposes: scientific purposes, or the enhancement of propagation or survival, or economic hardship, or zoological exhibition, or educational purposes, or incidental taking, or special purposes consistent with the purposes of the Act. Such a permit may authorize a single transaction, a series of transactions, or a number of activities over a specific period of time.
(a)(1) Application requirements for permits for scientific purposes, or the enhancement of propagation or survival, or economic hardship, or zoological exhibition, or educational purposes, or special purposes consistent with the purposes of the Act. A person wishing to get a permit for an activity prohibited by § 17.31 submits an application for activities under this paragraph. The Service provides Form 3-200 for the application to which as much of the following information relating to the purpose of the permit must be attached:
(i) The Common and scientific names of the species sought to be covered by the permit, as well as the number, age, and sex of such species, and the activity sought to be authorized (such as taking, exporting, selling in interstate commerce);
(ii) A statement as to whether, at the time of application, the wildlife sought to be covered by the permit (A) is still in the wild, (B) has already been removed from the wild, or (C) was born in captivity;
(iii) A resume of the applicant's attempts to obtain the wildlife sought to be covered by the permit in a manner which would not cause the death or removal from the wild of such wildlife;
(iv) If the wildlife sought to be covered by the permit has already been removed from the wild, the country and place where such removal occurred; if the wildlife sought to be covered by permit was born in captivity, the country and place where such wildlife was born;
(v) A complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be used, displayed, or maintained;
(vi) If the applicant seeks to have live wildlife covered by the permit, a complete description, including photographs or diagrams, of the facilities to house and/or care for the wildlife and a resume of the experience of those persons who will be caring for the wildlife;
(vii) A full statement of the reasons why the applicant is justified in obtaining a permit including the details of the activities sought to be authorized by the permit;
(viii) If the application is for the purpose of enhancement of propagation, a statement of the applicant's willingness to participate in a cooperative breeding program and to maintain or contribute data to a studbook;
(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (a)(1) of this section, the Director will decide whether or not a permit should be issued. In making this decision, the Director shall consider, in addition to the general criteria in § 13.21(b) of this subchapter, the following factors:
(i) Whether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit;
(ii) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit;
(iii) Whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population from which the wildlife sought to be covered by the permit was or would be removed;
(iv) Whether the purpose for which the permit is required would be likely to reduce the threat of extinction facing the species of wildlife sought to be covered by the permit;
(v) The opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application; and
(vi) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application.
(3) Permit conditions. In addition to the general conditions set forth in part 13 of this subchapter, every permit issued under this paragraph shall be subject to the special condition that the escape of living wildlife covered by the permit shall be immediately reported to the Service office designated in the permit.
(4) Duration of permits. The duration of permits issued under this paragraph shall be designated on the face of the permit.
(b)(1) Application requirements for an incidental take permit. A person seeking authorization for incidental take that would otherwise be prohibited by § 17.31 or §§ 17.40 through 17.48 submits Form 3-200-56, a processing fee (if applicable), and a conservation plan. The Service will process the application when the Director determines the application is complete. A conservation plan must include the following:
(i) Project description. A complete description of the project, including purpose, location, timing, and proposed covered activities.
(ii) Covered species. As defined in § 17.3, common and scientific names of species sought to be covered by the permit, as well as the number, age, and sex, if known.
(iii) Goals and objectives. The measurable biological goals and objectives of the conservation plan.
(iv) Anticipated take. Expected timing, geographic distribution, type and amount of take, and the likely impact of take on the species.
(v) Conservation program: That explains the:
(A) Conservation measures that will be taken to minimize and mitigate the impacts of the incidental take for all covered species commensurate with the taking;
(B) Roles and responsibilities of all entities involved in implementation of the conservation plan;
(C) Changed circumstances and the planned responses in an adaptive management plan; and
(D) Procedures for dealing with unforeseen circumstances.
(vi) Conservation timing. The timing of mitigation relative to the incidental take of covered species.
(vii) Permit duration. The rationale for the requested permit duration.
(viii) Monitoring. Monitoring of the effectiveness of the mitigation and minimization measures, progress towards achieving the biological goals and objectives, and permit compliance. The scope of the monitoring program should be commensurate with the scope and duration of the conservation program and the project impacts.
(ix) Funding needs and sources. An accounting of the costs for properly implementing the conservation plan and the sources and methods of funding.
(x) Alternative actions. The alternative actions to the taking the applicant considered and the reasons why such alternatives are not being used.
(xi) Additional actions. Other measures that the Director requires as necessary or appropriate, including those necessary or appropriate to meet the issuance criteria or other statutory responsibilities of the Service.
(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (b)(1) of this section, the Director will decide whether a permit should be issued. The Director will consider the general issuance criteria in § 13.21(b) of this subchapter, except for § 13.21(b)(4). In making a decision, the Director will consider the anticipated duration and geographic scope of the applicant's planned activities, including the amount of covered species' habitat that is involved and the degree to which covered species and their habitats are affected. The Director will issue the permit if the Director finds:
(i) The taking will be incidental to, and not the purpose of, carrying out an otherwise lawful activity.
(ii) The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking.
(iii) The applicant will ensure that adequate funding for the conservation plan implementation will be provided.
(iv) The applicant has provided procedures to deal with unforeseen circumstances.
(v) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.
(vi) The measures and conditions, if any, required under paragraph (b)(1)(xi) of this section will be met.
(vii) The applicant has provided any other assurances the Director requires to ensure that the conservation plan will be implemented.
(3) Permit conditions. In addition to the general conditions set forth in part 13 of this subchapter, every permit issued under the regulations in this section will contain terms and conditions that the Director deems necessary or appropriate to carry out the purposes of the permit and the conservation plan, including, but not limited to, additional conservation measures, if any, that may be required pursuant to paragraph (b)(1)(xi) of this section, specified deadlines, and monitoring and reporting requirements deemed necessary for determining whether the permittee is complying with those terms and conditions. The Director will rely upon existing reporting requirements to the maximum extent practicable.
(4) Permit duration and effective date. In determining the duration of a permit, the Director will consider the duration of the activities for which coverage is requested; the time necessary to fully minimize and mitigate the impacts of the taking; and uncertainties related to the impacts of the taking, success of the mitigation, and external factors that could affect the success of the conservation plan.
(i) Permits issued under this paragraph (b) become effective for listed covered species upon the date the permittee signs the incidental take permit, which must occur within 90 calendar days of issuance. For non-listed covered species, the permit's take authorization becomes effective upon the effective date of the species' listing provided the permittee signed the permit within 90 calendar days of issuance and has properly implemented the conservation plan.
(ii) The permit expires on the date indicated on the face of the permit.
(5) Assurances provided to permittee in case of changed or unforeseen circumstances. The assurances in this paragraph (b)(5) apply only to incidental take permits issued in accordance with paragraph (b)(2) of this section where the conservation plan is being properly implemented and the permittee is properly complying with the incidental take permit. The assurances apply only with respect to species covered by the conservation plan. These assurances do not apply to Federal agencies or to incidental take permits issued prior to March 25, 1998. The assurances provided in incidental take permits issued prior to March 25, 1998, remain in effect, and those permits will not be revised.
(i) Changed circumstances provided for in the plan. If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and were provided for in the plan's operating conservation program, the permittee will implement the measures specified in the plan.
(ii) Changed circumstances not provided for in the plan. If additional conservation and mitigation measures are deemed necessary to respond to changed circumstances and were not provided for in the plan's operating conservation program, the Director will not require any conservation and mitigation measures in addition to those provided for in the plan without the consent of the permittee, provided the Director determines that the plan is being properly implemented.
(iii) Unforeseen circumstances. (A) In negotiating a response to unforeseen circumstances, the Director will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed upon for the species covered by the conservation plan without the consent of the permittee.
(B) If additional conservation and mitigation measures are deemed necessary to respond to unforeseen circumstances, the Director may require additional measures of the permittee where the conservation plan is being properly implemented, but only if such measures:
(1) Are limited to modifications within conserved habitat areas, if any, or to the conservation plan's operating conservation program for the affected species; and
(2) Maintain the original terms of the conservation plan to the maximum extent possible.
(3) Additional conservation and mitigation measures will not involve the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the conservation plan, without the consent of the permittee.
(C) The Director will have the burden of demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available. These findings must be clearly documented and based upon reliable technical information regarding the status and habitat requirements of the affected species. The factors to be considered by the Director include, but are not limited to, the following:
(1) Size of the current range of the affected species;
(2) Percentage of range adversely affected by the conservation plan;
(3) Percentage of range conserved by the conservation plan;
(4) Ecological significance of that portion of the range affected by the conservation plan;
(5) Level of knowledge about the affected species and the degree of specificity of the species' conservation program under the conservation plan; and
(6) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.
(6) Additional actions. Nothing in this section will be construed to limit or constrain the Director, any Federal, State, local, or Tribal government agency, or a private entity from taking additional actions, at their own expense, to protect or conserve a species included in a conservation plan.
(7) Permit amendment or renewal. Any amendment or renewal of an existing permit issued under this part is a new agency decision and is therefore subject to all current relevant laws and regulations. The application will be evaluated based on the current policies and guidance in effect at the time of the amendment or renewal decision. Evaluation of an amendment extends only to the portion(s) of the conservation plan or permit for which the amendment is requested. Amendment or renewal applications must meet issuance criteria based upon the best available commercial and scientific data at the time of the permit decision.
(8) Discontinuance of permit activity. Notwithstanding the provisions of § 13.26 of this subchapter, a permittee under this paragraph (b) remains responsible for any outstanding minimization and mitigation measures required under the terms of the permit for take that occurs prior to surrender of the permit and such minimization and mitigation measures as may be required pursuant to the termination provisions of an implementing agreement, conservation plan, or permit even after surrendering the permit to the Service pursuant to § 13.26 of this subchapter.
(i) The Service will deem the permit canceled only upon a determination that such minimization and mitigation measures have been implemented.
(ii) Upon surrender of the permit, no further take by the permittee will be authorized under the terms of the surrendered permit.
(9) Criteria for revocation. A permit issued under this paragraph (b) may not be revoked for any reason except:
(i) The reasons set forth in § 13.28(a)(1) through (4) of this subchapter; or
(ii) If continuation of the permitted activity would be inconsistent with the criterion set forth in 16 U.S.C. 1539(a)(2)(B)(iv) and the inconsistency has not been remedied.
(c)(1) Application requirements for an enhancement of survival permit associated with conservation benefit agreements. The applicant must submit Form 3-200-54, the processing fee (if applicable), and a conservation benefit agreement. The Service will process the application when the Director determines the application has met all statutory and regulatory requirements for a complete application. A conservation benefit agreement must include the following:
(i) Conservation measures. A complete description of the conservation measure or measures, including the location of the activity or activities to be covered by the permit, and their intended outcome for the covered species.
(ii) Covered species. The common and scientific names of the covered species for which the applicant will conduct conservation measures and may need authorization for take.
(iii) Goals and objectives. The measurable biological goals and objectives of the conservation measures in the agreement.
(iv) Enrollment baseline. The baseline condition of the property or area to be enrolled as defined in § 17.3.
(v) Net conservation benefit. A description of how the measures are reasonably expected to improve each covered species' existing baseline condition on the enrolled property and result in a net conservation benefit as defined at § 17.3.
(vi) Monitoring. The steps the applicant will take to monitor and adaptively manage to ensure the goals and objectives of the conservation benefit agreement are met, the responsibilities of all parties are carried out, and the conservation benefit agreement will be properly implemented.
(vii) Neighboring property owners. A description of the enrollment process to provide neighboring property owners take coverage under paragraph (c)(5)(ii) of this section, if applicable, or any other measures developed to protect the interests of neighboring property owners.
(viii) Return to baseline condition. The applicant's choice between including authorization to return the enrolled property to baseline condition or forgoing that authorization. For applicants seeking authority to return to baseline condition, a description of steps that may be taken to return the property to baseline condition and measures to reduce the effects of the take to the covered species.
(ix) Additional actions. Any other measures that the Director may require as necessary or appropriate to meet the issuance criteria in paragraph (c)(2) of this section or to avoid conflicts with other Service conservation efforts.
(2) Issuance criteria. Upon receiving an application completed in accordance with paragraph (c)(1) of this section, the Director will decide whether to issue a permit. The Director will consider the general issuance criteria in § 13.21(b) of this subchapter, except for § 13.21(b)(4), and may issue the permit if the Director finds:
(i) The take will be incidental to an otherwise lawful activity or purposeful if it is necessary for the implementation of the conservation benefit agreement and will be in accordance with the terms of the agreement.
(ii) The implementation of the terms of the conservation benefit agreement is reasonably expected to provide a net conservation benefit to the affected covered species on the enrolled property that is included in the permit and for each individual property within a programmatic conservation benefit agreement, based upon: condition of the species or habitat, effects of conservation measures, and anticipated impacts of any permitted take.
(iii) The direct and indirect effects of any authorized take are unlikely to appreciably reduce the likelihood of survival and recovery in the wild of any listed species.
(iv) Implementation of the terms of the conservation benefit agreement will not conflict with any ongoing conservation or recovery programs for listed species and the covered species included in the permit.
(v) The applicant has shown a capability for and commitment to implementing all terms of the conservation benefit agreement.
(3) Permit conditions. In addition to any applicable general permit conditions set forth in part 13 of this subchapter, every permit issued under this paragraph (c) is subject to the following special conditions:
(i) The participating property owner must notify the Service of any transfer of property subject to a conservation benefit agreement, at least 30 calendar days prior to the transfer.
(ii) The permittee must give the Service reasonable advance notice (generally at least 30 calendar days) of when take of any covered species is expected to occur, to provide the Service an opportunity to relocate affected individuals of the species, if possible and appropriate.
(iii) Any additional requirements or conditions the Director deems necessary or appropriate to carry out the purposes of the permit and the conservation benefit agreement.
(4) Permit duration and effective date. The duration of permits issued under paragraph (c) of this section must be sufficient to provide a net conservation benefit to species covered in the enhancement of survival permit on the enrolled property.
(i) In determining the duration of a permit, the Director will consider the duration of the planned activities, the uncertainties related to the impacts of the taking, and the positive and negative effects of the planned activities covered by the permit on species covered by the conservation benefit agreement.
(ii) Permits issued under this paragraph (c) become effective for listed covered species upon the date the permittee signs the enhancement of survival permit, which must be within 90 calendar days of issuance. For non-listed covered species, the take authorized through the permit becomes effective upon the effective date of the species' listing provided the permittee signed the permit within 90 calendar days of issuance and has properly implemented the conservation benefit agreement since signing the permit.
(5) Assurances. The assurances in paragraph (c)(5)(i) of this section apply only to enhancement of survival permits issued in accordance with paragraph (c)(2) of this section where the conservation benefit agreement is being properly implemented, apply only with respect to species covered by the permit, and are effective until the permit expires. The assurances provided in this section apply only to enhancement of survival permits issued after July 19, 1999.
(i) Permittee and participating property owners. The Director and the permittee may agree to revise or modify the conservation measures set forth in a conservation benefit agreement if the Director determines that those revisions or modifications do not change the Director's prior determination that the conservation benefit agreement is reasonably expected to provide a net conservation benefit to the covered species. However, the Director may not require additional or different conservation measures to be undertaken by a permittee without the consent of the permittee.
(ii) Neighboring property owners. The Director may provide take coverage in the enhancement of survival permit for owners of properties adjacent to properties covered by the conservation benefit agreement through enrollment procedures contained in the agreement. The take covered and the method of providing take coverage will be tailored to the specific conservation benefit agreement and needs of adjacent property owners. One method is to have the neighboring property owner sign a certificate that applies the authorization and assurances in the permit to the neighboring property owner. The certificate must:
(A) Establish a baseline condition for the covered species on their property; and
(B) Give permission to the Service, the permittee, or a representative of either to enter the property, with reasonable notice, to capture and relocate, salvage, or implement measures to reduce anticipated take of the covered species.
(6) Additional actions. Nothing in this section will be construed to limit or constrain the Director, any Federal, State, local, or Tribal government agency, or a private entity from taking additional actions, at their own expense, to protect or conserve a species included in a conservation benefit agreement.
(7) Permit amendment or renewal. Any amendment or renewal of an existing permit issued under this part is a new agency decision and is therefore subject to all current relevant laws and regulations. The application will be evaluated based on the current policies and guidance in effect at the time of the amendment or renewal decision. Evaluation of an amendment extends only to the portion(s) of the conservation benefit agreement or permit for the which the amendment is requested. Amendment or renewal applications must meet issuance criteria based upon the best available commercial and scientific data at the time of the permit decision.
(8) Discontinuance of permit activity. Notwithstanding the provisions of § 13.26 of this subchapter, a permittee under this paragraph (c) remains responsible for any outstanding conservation measures required under the terms of the permit for take that occurs prior to surrender of the permit and any conservation measures required pursuant to the termination provisions of the conservation benefit agreement or permit even after surrendering the permit to the Service pursuant to § 13.26 of this subchapter.
(i) The permittee of a programmatic conservation benefit agreement that conveys take authorization and assurances to participants or enrollees must follow the provisions of § 13.26 of this subchapter.
(ii) The permit will be deemed canceled only upon a determination by the Service that those conservation measure(s) have been implemented and the permittee has had ample time to return the permittee's property to baseline condition, if the permit authorized take associated with return to baseline and if the permittee chooses to exercise that authorization.
(iii) Upon surrender of the permit, no further take will be authorized under the terms of the surrendered permit, and the assurances in paragraph (c)(5)(i) of this section will no longer apply.
(9) Criteria for revocation. The Director may not revoke a permit issued under this paragraph (c) except as provided in this paragraph (c)(9).
(i) The Director may revoke a permit for any reason set forth in § 13.28(a)(1) through (4) of this subchapter. The Director may revoke a permit if continuation of the covered activity would either:
(A) Appreciably reduce the likelihood of survival and recovery in the wild of any covered species; or
(B) Directly or indirectly alter designated critical habitat such that the value of that critical habitat is appreciably diminished for both the survival and recovery of a covered species.
(ii) Before revoking a permit for either of the reasons in paragraphs (c)(9)(i)(A) or (B) of this section, the Director, with the consent of the permittee, will pursue all appropriate options to avoid permit revocation. These options may include, but are not limited to, extending or modifying the existing permit, capturing and relocating the species, compensating the property owner to forgo the activity, purchasing an easement or fee simple interest in the property, or arranging for a third-party acquisition of an interest in the property.