Incidental Take Overview

According to Section 29.604, Wis. Stats. (exit DNR) it is illegal to take, transport, possess, process or sell any wild animal that is included on the Wisconsin Endangered and Threatened Species List. In addition, it is illegal to remove, transport, carry away, cut root up, sever, injure or destroy a wild plant on the Wisconsin Endangered and Threatened Species List on public lands. Forestry, agricultural and utility practices are exempted from the taking prohibitions of listed plant species.

The Wisconsin Endangered Species law allows the Department to authorize the taking of a protected species if the taking is not for the purpose of, but will be only incidental to, the carrying out of an otherwise lawful activity. Authorization generally occurs through an Incidental Take Permit. If the activity is conducted by the Department itself or if another state agency conducts, funds, or approves the activity, authorization would occur through an Incidental Take Authorization.

An Incidental Take Permit/Authorization Application is now available. In nearly all cases, submission of the request form should be preceded by other communication and consultation with the DNR. Most often, the applicant should first request an Endangered Resources (ER) Review of the proposed project. This ER Review will provide the applicant with the information needed to comply with Wisconsin’s Endangered Species Law and other laws and regulations protecting endangered resources. The ER Review will also indicate whether or not the applicant will need to request an Incidental Take Permit or Incidental Take Authorization for the project to proceed.

Incidental Take Permits

Application for an Incidental Take Permit is generally undertaken as part of the Endangered Resources Review process.

To apply for an Incidental Take Permit, the applicant must submit to the Department a conservation plan and an implementing agreement. The Conservation Plan must include all of the following:

1. A description of the impact that will likely occur as a result of the taking.
2. The steps that all parties involved in the taking will take to minimize and mitigate the impact on the listed species.
3. A description of the funding that the responsible parties will have available to implement the steps in (2).
4. A description of the alternative actions that were considered, and the reasons that these alternatives will not be pursued.
5. Any other measures that the Department determines to be necessary or appropriate.

The Implementing Agreement must include the names and specific obligations and responsibilities of all the parties that will be involved in the taking.

Granting of an Incidental Take Permit is at the discretion of the Department, and is determined based on the following criteria:

1. The responsible parties must minimize and mitigate, to the maximum extent practicable, the impact caused by the taking.
2. The responsible parties must ensure that adequate funding for the conservation plan will be provided.
3. The taking will not appreciably reduce the likelihood of the survival or recovery of the species within the state, the whole plant-animal community of which it is a part, or the habitat that is critical to its existence.
4. Any other measures required under (5) above will be met.

By law, Incidental Take Permits must include any terms or conditions (e.g., reporting and monitoring requirements) that the Department finds necessary to ensure that the Conservation Plan requirements (1) to (5) will be met.

Upon receipt of an application for an Incidental Take Permit, the Department must provide public notice of the proposed activity for at least 30 days. If the public provides additional information that would impact the authorization decision, it will be considered prior to final authorization.

Incidental Take Authorizations

An Incidental Take Authorization is requested as part of the interagency consultation process, or as part of the Department’s consideration of endangered resources in all activities that it conducts.

State agencies are required to notify the Department at the earliest opportunity of the location, nature and extent of a proposed activity that the agency may conduct, fund or approve that may affect an endangered or threatened species. This notification serves to initiate the incidental consultation process.

The Department may authorize the taking of a threatened or endangered species if the Department determines that all of the following apply:

1. The activity is accomplished in accordance with interagency consultation procedures established by the Department and the agency for the purpose of minimizing any adverse effect on the species.
2. The activity is not likely to jeopardize the continued existence and recovery of the species, or the whole plant-animal community of which it is a part, within Wisconsin.
3. The activity is not likely to result in the destruction or adverse modification of a habitat that is critical to the continued existence of the species within Wisconsin.
4. The benefit to public health, safety or welfare justifies the activity.

Depending upon the complexity of the project and species involved, a Conservation Plan may be required. By law, state agencies are required to exchange information and cooperate with the Department in the planning and implementation of any activity relating to the taking of any endangered or threatened species in order to alleviate, to the maximum extent practicable under the circumstances, any potential adverse effect on the endangered or threatened species. Cooperation by the state agency includes conducting surveys and biological assessments when needed.

The Department must provide public notice of the proposed activity for which an Incidental Take Authorization is being requested for at least 30 days. If the public provides additional information that would impact the authorization decision, it will be considered prior to final authorization.

For more information about the incidental take process, please contact

Rori Paloski
Incidental Take Coordinator
608-264-6040