On April 26, 2018, the U.S. Fish and Wildlife Service
("FWS") issued a memorandum addressing the need for an
incidental take permit ("ITP") under the Endangered
Species Act (ESA) for the modification of listed species'
habitat ("ITP Memo"). As background, under the ESA, the
"take" of an endangered species is prohibited. This
prohibition has been extended to threatened species through a
blanket 4(d) rule. In certain circumstances, take that is not
purposeful and occurs incidental to some other action can be
authorized through the issuance of an ITP.
As defined in the ESA and in FWS's regulations, take
includes harming or harassing a species where such impacts have the
potential to cause a significant adverse effect on the species. In
some instances, impacts to the habitat of a listed species have
been determined to be so significant that they cause the take of
that species, and ITPs have been issued to address such habitat
impacts. However, the amount of habitat
