This article is the second in our new Advanced Practitioner Series, which is designed to provide our readers with expert analysis of trends, as well as advanced practice tips, in established practice areas. The series also covers professional and career issues of interest to environmental, energy, and natural resources lawyers.
Both intentional (an act directed at a species) and unintentional “takes” are prohibited by the federal Endangered Species Act (Act) without a permit or other authorization. An “incidental take” is an unintentional take that occurs as a result of otherwise lawful activity, such as property development that clears occupied habitat. An article in the previous issue of Trends discussed one method of obtaining authorization for incidental take, via section 10 of the Act, the Incidental Take Permit with Habitat Conservation Plan. This article describes a second method, the “Incidental Take Statement,” or ITS, that can result from the section 7 consultation process.