The Endangered Species Act provides for NOAA Fisheries Service to regulate and permit activities that may impact species listed under the ESA.

Section 4(d) directs the agency to issue regulations to conserve species listed as threatened. This applies particularly to “take,” which can include any act that kills or injures fish, and may include habitat modification. Section 4(d) of the ESA prohibits ANY take of species listed as endangered, but some take of threatened species that does not interfere with salmon survival and recovery can be allowed.

ESA Section 10 allows NOAA Fisheries Service to issue permits for direct take and "incidental take of threatened and endangered species." Incidental take means the action involved is incidental to, and not the purpose of, an otherwise lawful activity. Incidental take/Section 10(a)(1)(B) permits may be issued for scientific research, habitat conservation plans (HCPs), artificial propagation programs, and harvest management programs. Direct take means the listed species is the subject of the proposed activity. Direct take/Section 10(a)(1)(A) permits may be issued for scientific purposes or to enhance the propagation or survival of listed species.