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Incidental Extinction: How the Endangered Species Act's Incidental Take Permits Fail to Account for Population Loss

July 2011

Citation: ELR 10628

Author: Patrick Duggan

Section 9 of the ESA boldly declares that any harm perpetrated upon a listed species, even a single animal, is illegal. Yet, the Incidental Take Permit provision of the ESA expressly allows nonfederal landowners to harm thousands, possibly millions, of listed species every year. Despite this obvious statutory contradiction, the system makes sense—if executed correctly. Unfortunately, changes within the Incidental Take Permitting process have made it such that these permits, originally small in number and scope, may now be significantly contributing to the decline of our most precious species. A close examination of relevant regulations shows that crucial components of the approval process lack the scientific clarity and regulatory direction to deal with modern Incidental Take Permits. Specifically, current and future populations are grossly overestimated because of regulatory deficiencies.

Patrick Duggan is a Trial Attorney, Environmental Crimes Section, Environment and Natural Resources Division, U.S. Department of Justice.

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