(520 ILCS 10/5.5)

Sec. 5.5. Incidental taking.

(a) The Department may authorize, under prescribed terms and conditions, any taking otherwise prohibited by Section 3 if that taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. No taking under this Section shall be authorized by the Department unless the applicant submits to the Department a conservation plan.

(b) The conservation plan shall include but not be limited to the following:

(1) a description of the impact that the proposed taking is likely to have on one or more species on the Illinois list;

(2) the steps the applicant or other parties will take to minimize and mitigate that impact and the funding that will be available to implement those steps, including but not limited to bonds, insurance, or escrow;

(3) what alternative actions to the taking the applicant considered and the reasons why those alternatives will not be used;

(4) data and information to assure that the proposed taking will not reduce the likelihood of the survival or recovery of the endangered species or threatened species in the wild within the State of Illinois, the biotic community of which the species is a part, or the habitat essential to the species' existence in Illinois;

(5) an implementing agreement that specifically names, and describes the obligations and responsibilities of, all the parties that will be involved in the taking as authorized by the permit; and

(6) any other measures that the Department may require as being necessary or appropriate for purposes of the plan.

(c) After reviewing the application for incidental taking and the conservation plan, the Department may authorize the incidental taking if the Department finds, in a written decision explaining its conclusions, that the taking will meet all of the following requirements:

(1) the taking will not be the purpose of, but will be only incidental to, the carrying out of an otherwise lawful activity;

(2) the parties to the conservation plan will, to the maximum extent practicable, minimize and mitigate the impact caused by the taking;

(3) the parties to the conservation plan will ensure that adequate funding for the conservation plan will be provided;

(4) based on the best available scientific data, the Department has determined that the taking will not reduce the likelihood of the survival or recovery of the endangered species or threatened species in the wild within the State of Illinois, the biotic community of which the species is a part, or the habitat essential to the species' existence in Illinois;

(5) any measures required under paragraph (6) of subsection (b) of this Section will be performed; and

(6) the public has received notice of the application and has had the opportunity to comment before the Department made any decision regarding the application.

(d) The Department may require that a party to the conservation plan make additional assurances that the requirements under items (b)(1) through (b)(6) of this Section will be met before authorizing incidental taking.

(e) The Department shall impose on the authorization for incidental taking any terms or conditions that the Department finds necessary to ensure that the requirements under items (b)(1) through (b)(6) of this Section will be met. These terms or conditions may include but are not limited to reporting or monitoring requirements.

(f) If an applicant is party to a Habitat Conservation Plan approved by the U.S. Fish and Wildlife Service pursuant to Section 10 of the Endangered Species Act of 1973, P.L. 93-205, and amendments thereto, the Department may authorize taking that is incidental to the carrying out of an otherwise lawful activity. Authorization shall be issued only if the provisions of the Habitat Conservation Plan are found to meet the requirements set forth in subsection (c) of this Section.

(g) If an applicant has been authorized to take an endangered or threatened species under the terms of a biological opinion issued by the U.S. Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act of 1973, P.L. 93-205, and amendments thereto or regulations implementing Section 7 (50 CFR Part 402), the Department may authorize taking that is incidental to the carrying out of an otherwise lawful activity. Authorization shall be issued only if the Department finds that the taking will not reduce the likelihood of the survival or recovery of the endangered species or threatened species in the wild within the State of Illinois, the biotic community of which the species is a part, or the habitat essential to the species' existence in Illinois.

(Source: P.A. 91-556, eff. 1-1-00.)