Ninth Circuit Upholds Use Of Surrogate Approach In Incidental Take Statement

When authorizing an "incidental take" of listed species, the U.S. Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service have long struggled with methods for establishing numerical take limits for some species where take levels are not readily measured.  The confusion over when a surrogate approach might be appropriate, and how such an approach should be applied, has led to the call for administrative reform.  In May 2011, FWS confirmed that it intended to advance a series of administrative reforms to the Endangered Species Act ("ESA"), including introducing "greater flexibility in the quantification of anticipated incidental taking," which would "reduce the burden of developing and implementing biological opinions without any loss of conservation benefits."