The Endangered Species Act 101: Section 7 v 10

The prohibitions of the ESA are strict, but Congress realized it’s difficult to completely avoid harm to species. So they created two routes to allow activities to move forward while also limiting harm - or take - to listed species. Those two routes are found in sections 7 and 10 of the Endangered Species Act. These two sections have some similarities, and because of these similarities, it can be difficult to know the difference between them. Let’s break it down.

Section 7, often called “the consultation process”, requires federal agencies to consult with the U.S. Fish and Wildlife Service and NOAA’s National Marine Fisheries Service if they’re funding, carrying out or authorizing any action that may adversely affect ESA-listed species. Section 7 ensures the proposed action won’t jeopardize listed species or adversely modify their critical habitat. The end of the consultation process results in an incidental take statement, or how much harm a project is expected to do to species.

But what if there is no federal agency involvement, but a project’s actions might risk taking a protected species? Individuals and organizations can obtain incidental take permits, or ITPs, under Section 10 of the ESA. To get one of these permits, they must develop a Habitat Conservation Plan. It’s a planning document that describes the project, how it might affect species and how the landowner will minimize or mitigate harm to protected species.

Both Section 7 and Section 10 allow for incidental take, whether through a statement or a permit. The major difference between Section 7 and Section 10 is who is involved - federal agencies vs. private, state and local landowners - and how incidental take is dealt with - via statement or permit.

But is there ever a situation where you might need.. both? The short answer is yes.

While Section 7 consultations can stand alone, Habitat Conservation Plans through Section 10 can’t stand alone - they require an accompanying Section 7 consultation. That’s because the act of issuing an Incidental Take Permit at the end of an HCP is considered a federal action - therefore, a consultation needs to be done on issuing the take permit itself.

Though they may seem similar, we hope this video has shown how these two sections of the ESA are different in some key ways. For more information on Section 7 or Section 10, you can check out our other ESA 101 videos. Thanks for watching!