Checklist · Environmental

Handling a Wildlife Listing, Take Permit, or Enforcement Action: A Practical Checklist

16 U.S.C. § 1538

Type
Checklist
Jurisdiction
National
Date
2024-02-01
Topic
Environmental

A step-by-step checklist for handling wildlife and endangered species issues on a project, on a parcel, or in litigation. Section A is the pre-acquisition and pre-design screen that prevents nearly every expensive outcome in this field. Section B covers avoiding take, including the older strict-liability statutes that apply whether or not anything is listed. Section C covers federal consultation, its triggers, and its sequence. Section D covers the incidental take permit and the habitat conservation plan that supports it. Section E covers responding to an enforcement contact. Section F covers commenting on a listing and bringing a citizen suit. Section G is the landowner's plain-language checklist.

Handling a Wildlife Listing, Take Permit, or Enforcement Action: A Practical Checklist

Environmental > Wildlife, Fish, and Endangered Species | Published 1 February 2024 - Updated 1 December 2024 | UpLaw - uplaw.us

Start here

Three facts decide most matters in this field:

  1. Take is prohibited on private land, by private parties, with no federal involvement required — 16 U.S.C. § 1538.
  2. The older statutes apply whether or not anything is listed, and migratory bird liability is strict.
  3. The permit path exists so lawful activity can continue — 16 U.S.C. § 1539. Use it early.

SECTION A — THE SCREEN

A1. Before acquisition — the highest-return step in this entire checklist

☐ Species occurrence records for the parcel and surrounding area ☐ Critical habitat designated or proposed — 16 U.S.C. § 1533, 50 C.F.R. Part 17 ☐ Candidate and petitioned species, which are the future problem ☐ Wetlands and waters delineation status — the most common federal permitting hook ☐ Prior surveys, with the date and season — a survey outside the detection window is not a survey ☐ Existing incidental take permit, habitat conservation plan, or conservation easement ☐ Prior enforcement contact on the parcel ☐ Seasonally appropriate migratory bird and eagle nest survey ☐ Adjacent-land conservation status, which determines mitigation options ☐ Commission the survey before the contingency period expires, not after closing

A2. Screen the whole statutory stack, not just one

☐ Endangered species — 16 U.S.C. § 1538 take prohibition ☐ Migratory birds — 16 U.S.C. § 703, strict-liability penalties at 16 U.S.C. § 707 ☐ Eagles — 16 U.S.C. § 668, including nest disturbance ☐ Marine mammals — 16 U.S.C. § 1371 and 16 U.S.C. § 1372, including acoustic harassment ☐ State endangered species act — some are broader than federal law, and several protect plants that federal law does not ☐ Tribal jurisdiction and treaty rights, where applicable ☐ Wetlands, zoning, and environmental review — run these simultaneously, not sequentially. See Water, Wetlands, and Conservation and Zoning and Land Use

SECTION B — AVOIDING TAKE

B1. Understand what take is

☐ Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt — 16 U.S.C. § 1532 ☐ "Harm" includes significant habitat modification that actually kills or injures wildlife by significantly impairing breeding, feeding, or sheltering — upheld in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 ☐ The causal requirement is real, and it is where most enforcement disputes are actually fought ☐ Plants are different — the take prohibition protects fish and wildlife

B2. Timing and avoidance — cheaper than permits, faster than litigation

☐ Vegetation clearing and demolition outside nesting season ☐ Pre-work nest surveys, in season, by qualified observers ☐ Deterrents installed before nesting begins — after is too late, legally and practically ☐ Buffer distances around eagle nests, with seasonal restrictions ☐ Cover pits; cap open pipes; address netting and lighting ☐ Marine work: shutdown zones, soft starts, observers, and authorization for acoustic harassment ☐ Document every avoidance decision, so a good-faith record exists

B3. Voluntary conservation with assurances

☐ Safe harbor agreement — assurances for improving habitat, under 16 U.S.C. § 1539 ☐ Candidate conservation agreement with assurances — the same idea before listing ☐ These exist to fix a perverse incentive; use them before improving habitat, not after

SECTION C — FEDERAL CONSULTATION

C1. Does it apply?

☐ Is there a federal action — a permit, funding, a license, a right-of-way, or federal land? Issuing a permit is an action. ☐ If yes, 16 U.S.C. § 1536 and 50 C.F.R. Part 402 apply ☐ Does the acting agency retain discretion? If a separate statute imposes a mandatory, non-discretionary duty, consultation does not add a condition — National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644

C2. The sequence

☐ Informal consultation — species list request ☐ Biological assessment for major construction ☐ "May affect, likely to adversely affect" → formal consultation ☐ Biological opinion — jeopardy or no jeopardy ☐ Incidental take statement with the amount of take, reasonable and prudent measures, and terms and conditions ☐ Reasonable and prudent alternatives if jeopardy is found ☐ Parallel environmental review under 42 U.S.C. § 4332 — see Environmental Permitting and Compliance and The Permit Is the Product

C3. Reviewing a biological opinion

☐ Is the environmental baseline correctly described? ☐ Were cumulative effects analyzed as the regulations define them? ☐ Does the incidental take statement specify an amount or extent that functions as a real trigger? ☐ Are reasonable and prudent measures non-discretionary and enforceable? ☐ Was the action segmented to avoid analyzing its full scope? ☐ Preserve the administrative record; review is on it — see Administrative Law

SECTION D — THE INCIDENTAL TAKE PERMIT

D1. Threshold

☐ Is take incidental to, and not the purpose of, an otherwise lawful activity? — 16 U.S.C. § 1539 ☐ Is a federal action also present, triggering consultation under 16 U.S.C. § 1536? (If so, the incidental take statement may cover you without a separate permit.) ☐ Start early. The process takes longer than any schedule assumes.

D2. Scoping the plan

☐ Plan area — project-specific, multi-project, or regional. Regional costs more up front and far less per acre ☐ Covered species — listed certainly; candidate and unlisted species optionally, which buys protection against future listings and is the most valuable optional element ☐ Covered activities, defined broadly enough for the project as it will actually be built ☐ Permit term, with adaptive management for long terms

D3. Required content

☐ Impacts likely to result, quantified ☐ Minimization and mitigation measures, and the funding available ☐ Alternatives considered and why not adopted — substantive, not a formality ☐ Monitoring and reporting ☐ Adaptive management where uncertainty is material ☐ Changed and unforeseen circumstances provisions ☐ Funding mechanism that survives insolvency — endowment, assessment district, bond, or third-party assumption

D4. Mitigation design

☐ On-site preservation · off-site acquisition · conservation easement · mitigation bank credits · restoration · in-lieu fee ☐ Ratios justified biologically, not split-the-difference ☐ Timing — mitigation in advance of impact is worth more than mitigation promised after ☐ Stewardship funding, the item most often underestimated and the one determining whether the mitigation exists in twenty years

D5. Processing

☐ Environmental review under 42 U.S.C. § 4332 and internal consultation run in parallel ☐ Public comment on the plan and the draft environmental document ☐ Findings under 16 U.S.C. § 1539 — incidental take · minimized and mitigated to the maximum extent practicable · funding assured · no appreciable reduction in the likelihood of survival and recovery ☐ Implementing agreement, where most operative obligations actually live ☐ Confirm the no surprises assurance and what it does and does not cover

SECTION E — ENFORCEMENT CONTACT

E1. First moves

☐ Stop the activity if take is ongoing. Continuing violations compound everything. ☐ Identify which statute is invoked — the elements and defenses differ completely ☐ Do not give statements before counsel reviews ☐ Preserve: surveys, permits, contractor instructions, timing decisions, photographs, and communications ☐ Determine whether a federal permit was involved, which changes the analysis

E2. Statute-specific defenses

Statute The contested element
Take — 16 U.S.C. § 1538 Did the modification actually kill or injure, by significantly impairing essential behaviors? A real limit — Babbitt v. Sweet Home, 515 U.S. 687
Migratory birds — 16 U.S.C. § 703 ⚠️ Strict liability at 16 U.S.C. § 707 — intent arguments do not help
Eagles — 16 U.S.C. § 668 Lower intent threshold; nest disturbance is covered
Marine mammals — 16 U.S.C. § 1371 · § 1372 Whether the activity constituted harassment, including acoustic
Trafficking — 16 U.S.C. § 3372 The predicate law — a defective predicate defeats the charge

E3. Resolution

☐ Evaluate a prospective permit under 16 U.S.C. § 1539 — resolving forward frequently resolves backward ☐ Understand civil and criminal exposure under 16 U.S.C. § 1540 ☐ Consider a conservation agreement as part of a resolution ☐ Document a corrective compliance program; it matters at penalty assessment

SECTION F — LISTINGS AND LITIGATION

F1. Commenting on a proposed listing or designation

☐ File. Judicial review is on the administrative record, and arguments not raised are generally unavailable ☐ Address each of the five factors in 16 U.S.C. § 1533 with data ☐ Supply data the agency has not considered — listing must rest solely on the best scientific and commercial data available ☐ Contest a distinct population segment delineation if applicable ☐ For critical habitat only, address economics and exclusion — an argument unavailable at listing ☐ Address whether the area is presently habitat — Weyerhaeuser Co. v. United States Fish and Wildlife Service, 139 S. Ct. 361 ☐ Note that for threatened species, protections come from a species-specific rule; comment on the rule too

F2. Citizen suit

☐ Sixty-day notice — jurisdictional. Identify the violation, the violator, and the notifying party with enough specificity to permit correction ☐ Standing built on documented, recurring, specific use of the specific area — Lujan v. Defenders of Wildlife, 504 U.S. 555 ☐ Deadline claims are the most reliable — a missed finding is a non-discretionary duty enforceable under 16 U.S.C. § 1540 ☐ Economically injured parties may sue as well — Bennett v. Spear, 520 U.S. 154 ☐ Consider parallel procedural claims under 42 U.S.C. § 4332 ☐ Injunctive relief is the remedy, and the equities framework is favorable given Tennessee Valley Authority v. Hill, 437 U.S. 153

SECTION G — FOR A LANDOWNER, PLAINLY

☐ Listing does not take your land. It restricts take, which requires killing or injuring wildlife. ☐ You do not need a permit unless your activity would be a take. Most activities are not. ☐ Habitat modification is a take only if it actually kills or injures wildlife by significantly impairing breeding, feeding, or sheltering. ☐ Critical habitat on your land does not by itself restrict you — it constrains federal agency action. ☐ Listed plants are treated differently from animals on private land. ☐ Improving habitat can be made safe with a safe harbor agreement — get the assurances before you improve. ☐ The bird statutes apply regardless. Do not remove an active nest; clear vegetation outside nesting season. ☐ A restriction that leaves economically viable use is usually not a compensable taking — see Eminent Domain and Takings. ☐ If someone tells you what you cannot do, ask which statute and which species. The answers determine everything, and the person telling you frequently does not know.

SECTION H — PROJECT TIMELINE

Work backward from the construction start. Every expensive outcome in this field is a sequencing failure.

When Do
Before offer Desktop screen: occurrence records, critical habitat, wetlands, prior surveys, enforcement history
Contingency period Commission the seasonally appropriate survey. This is the decision point.
Pre-design Identify listed, candidate, and petitioned species; identify the federal hook, if any
Design Avoid and minimize on the ground — it is cheaper than every alternative that follows
Early entitlement Open informal consultation if a federal action exists; begin the environmental review conversation under 42 U.S.C. § 4332
Entitlement Prepare the biological assessment; begin the habitat conservation plan if a permit under 16 U.S.C. § 1539 will be needed
Pre-construction Nest surveys in season; deterrents before nesting; buffers established; contractor instructions issued in writing
Construction Monitoring per permit conditions; stop-work authority identified; incident reporting procedure in place
Post-construction Mitigation implementation, monitoring, and reporting on the permit schedule
Long term Stewardship funding confirmed; adaptive management triggers tracked; annual reports filed

📌 The two rows that matter most are "contingency period" and "pre-construction." A survey commissioned at the first and deterrents installed at the second prevent the overwhelming majority of problems described in this checklist.

SECTION I — CONTRACTOR AND FIELD CONTROLS

The take that generates enforcement is usually committed by an equipment operator who was never told.

☐ Written environmental instructions in the construction contract, not in a separate memo ☐ Flagged avoidance areas on the plans and in the field, with a pre-construction walk ☐ Seasonal restrictions stated as dates, not as principles ☐ Stop-work authority identified by name, with contact information posted ☐ Discovery protocol — what to do if a species, a nest, or a den is encountered: stop, do not handle, notify, document ☐ Nest and burrow survey results distributed to crews, in language they will read ☐ Daily tailgate briefing during sensitive periods ☐ Monitoring by a qualified biologist where permit conditions require it ☐ Photographic documentation of compliance, dated ☐ Incident reporting within a stated period, to a named person ☐ Subcontractor flow-down of every one of the above

⚠️ A permit condition that never reaches the operator is not a control. Most enforcement in this field follows a failure of communication rather than a failure of intent.

SECTION J — THE TEN-LINE VERSION

☐ 1. Survey early, in season, before the money is committed. ☐ 2. Screen the whole stack — endangered species, migratory birds, eagles, marine mammals, state law. ☐ 3. Remember migratory bird liability is strict — 16 U.S.C. § 707. ☐ 4. Avoid and time before you permit; it is cheaper and faster. ☐ 5. Identify the federal hook. A permit is an action, and it triggers 16 U.S.C. § 1536. ☐ 6. Test for agency discretion before building a consultation theory. ☐ 7. Start the permit early — 16 U.S.C. § 1539 takes longer than any schedule assumes. ☐ 8. Get the assurances before improving habitat, not after. ☐ 9. Build the administrative record; everything here is reviewed on it. ☐ 10. Push the conditions down to the operator. That is where take actually happens.

SECTION K — WORKED SITUATIONS

K1. A species is found mid-grading

☐ Stop work in the affected area immediately. Continuing take compounds everything, including penalties. ☐ Do not handle, move, or relocate the animal. Relocation is itself a take without authorization. ☐ Photograph and document the location, date, and observer ☐ Determine listing status and whether a federal permit is in play ☐ Notify counsel before notifying anyone else ☐ Evaluate the fastest available path: a modification to an existing incidental take statement under 16 U.S.C. § 1536, or a new permit under 16 U.S.C. § 1539 ☐ Consider whether work can proceed in unaffected areas under a documented avoidance plan

K2. An active nest is discovered on a structure

☐ Do not remove it. 16 U.S.C. § 703 reaches nests and eggs, with strict-liability penalties at 16 U.S.C. § 707 ☐ Identify the species; if an eagle, 16 U.S.C. § 668 applies independently and more severely, and disturbance is covered ☐ Establish a buffer and reschedule the work ☐ Document the decision and the timeline — a good-faith avoidance record matters ☐ Install deterrents after fledging and before the next season

K3. A neighbor's project threatens habitat you use

☐ Document your own specific, recurring use of the specific area, with dates — this is the standing record under Lujan v. Defenders of Wildlife, 504 U.S. 555 ☐ Identify whether a federal action exists; if so, the consultation record is public and obtainable ☐ Comment during any public process; the record is the case ☐ Serve a sixty-day notice before suing under 16 U.S.C. § 1540 ☐ Consider whether a deadline claim or a procedural claim under 42 U.S.C. § 4332 is available and easier

K4. A permit condition has become impossible

☐ Do not simply stop performing. Request an amendment. ☐ Identify whether the circumstance is changed or unforeseen under the plan's own provisions — the two are treated differently and the no-surprises assurance turns on it ☐ Document the effort made and the reason for impossibility ☐ Propose an equivalent alternative measure with biological justification ☐ Expect reinitiation of consultation where a federal action is involved

K5. A parcel is proposed for critical habitat designation

☐ Comment. This is the one stage where economics may be considered ☐ Address whether the area is presently habitat — Weyerhaeuser Co. v. United States Fish and Wildlife Service, 139 S. Ct. 361 ☐ Make the exclusion case: benefits of exclusion against benefits of inclusion, with data ☐ Remember that designation alone does not restrict private activity absent a federal nexus ☐ Preserve the record for review — see Administrative Law

SECTION L — DOCUMENTS TO ASSEMBLE

Whatever the posture, the file is built from the same materials. Assemble them before you need them.

☐ Survey reports, with dates, seasons, methods, and the surveyor's qualifications ☐ Occurrence records relied on, and the date of the query ☐ Species list obtained from the agency, with its date ☐ Biological assessment and any agency correspondence ☐ Biological opinion and incidental take statement, with all amendments ☐ Permits — take, eagle, marine mammal, wetlands — and their conditions ☐ Habitat conservation plan and the implementing agreement ☐ Mitigation instruments — easements, bank credit purchases, endowment documents ☐ Monitoring reports filed to date ☐ Contractor instructions and evidence they were distributed ☐ Timing decisions and the reasons for them ☐ Photographs, dated, of conditions and of compliance measures ☐ All agency correspondence, including informal communications ☐ Comment submissions made in any rulemaking affecting the parcel

📌 Two documents carry most matters: the seasonally appropriate survey report, and the written contractor instruction proving that permit conditions actually reached the operator. The first determines whether the problem was foreseeable; the second determines whether the violation was avoidable.

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