On June 9, 2025, the U.S. Fish and Wildlife Service (FWS) published a request for information (RFI) seeking to improve the efficiency and effectiveness of key permitting programs under Section 10(a) of the Endangered Species Act (ESA). Section 10(a) permits provide incidental take protection to certain non-federal activities, e.g., private actions that may affect a listed species. However, due to costs, processing times, uncertainty, and litigation risk, landowners are often reluctant to apply. Stakeholders should consider submitting information on how to reform Section 10(a). Comments are due by July 9, 2025.
Why Industry Engagement Matters
The Section 10(a) permitting process has long been criticized for its high costs, procedural complexity, and litigation risks. FWS has tried to streamline the permitting process by consolidating certain agreements into Conservation Benefit Agreements, but this effort did not address these larger concerns. For example:
- Costs and Delays. Obtaining Section 10(a) permits, e.g. Incidental Take Permits (ITPs), has a steep price tag, which includes the costs of developing a Habitat Conservation Plan (HCP). A 2022 study found the median total cost of large-scale HCPs was over $100 million, with project-scale HCPs averaging nearly $5 million, both of which can take years to complete. Even then, FWS must still go through Section 7 consultation before issuing a permit.
- Ambiguities and Uncertainties. Regulatory uncertainty is a persistent concern—applications can languish for years. For example, a timber harvest and residential project in Tucker County, West Virginia waited 16 years before ultimately challenging FWS's inaction. Inconsistencies in how FWS offices define the scope of HCPs and implement the HCP process further complicate the process, as well as long-term project planning and compliance.
- Litigation Risk. For project proponents, there is substantial risk of litigation claiming a private activity violates the ESA for failing to obtain a Section 10(a) permit. Such allegations can stop forward progress through an injunction and expose the proponents to potential civil or criminal liability. At the same time, there are significant risks associated with challenges to approved HCPs and issued ITPs, particularly given the inconsistency in FWS's administration of the Section 10 process.
FWS is providing a unique opportunity for significant reforms which can make Section 10(a) a more viable and reliable option for project proponents. Active participation during the comment period will be critical to shaping more predictable, cost-effective permitting pathways.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
