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Endangered Species Permits
HCPs - Frequently Asked Questions
How long does it take to complete an HCP?
HCPs which do not fall into the "Low Effect" category require either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), depending on their complexity. For those requiring an EA as part of the permit application, the target permit processing time is around 6 months. For those requiring an EIS, the target permit processing time is approximately 1 year.
How much will an HCP cost to complete and should I write it myself?
The cost can vary depending on the size and complexity of the proposed project. It is the landowner's responsibility to provide the Habitat Conservation Plan. It is also beneficial to the landowner if they correspond with the FWS early on (i.e., prior to writing the HCP and submitting the application package), as this will speed the application process along if we both have a clear understanding of the project description, project effects, and possible solutions to potential problems. In almost all cases, landowners hire a qualified biologist to prepare the HCP because there are many components (e.g., species information, habitat needs, project-related effects to the species, biological goals and objectives, management strategy, etc.) that require the knowledge and expertise of someone who has worked with the subject federally listed species. Individual consultant costs can vary. Regardless, we want to work closely with the landowner to insure that the HCP meets the mutual objectives of the FWS and the landowner, and that the HCP gets completed in a timely manner.
What is the legal commitment of an HCP?
The elements of the HCP are made binding through the incidental take permit. Violation of the terms of an incidental take permit would result in illegal take under Section 9 of the Endangered Species Act. If the violation is deemed technical or inadvertent in nature, the U.S. Fish and Wildlife Service may send the permittee a notice of noncompliance by certified mail or may recommend alternative actions to the permittee so that they may regain compliance with the terms of the permit.
What will happen if I conduct my project without getting an incidental take permit?
Section 9 of the Endangered Species Act prohibits taking, possession, sale, and transport of listed species. Taking is defined as to "harass, harm, pursue, hunt, shoot, wound, kill, capture, or collect." If you have a listed species on your property and you conduct a project that would "take" a listed species without first obtaining an incidental take permit, you are in direct violation of Section 9 of the Endangered Species Act, which is a federal offense.
Who approves an HCP?
The Regional Director of the affected U.S. Fish and Wildlife Service Region.
Does the public get to comment on our HCP? How do public comments affect the HCP?
The Endangered Species Act requires a 30-day period for public comment on the application for an incidental take permit. Additionally, NEPA requires public comment on certain NEPA documents, and the U.S. Fish and Wildlife Service runs these two comment periods concurrently. Therefore, public comments must be considered in the permit decision.
Are efforts made to accommodate the needs of HCP participants who are not biologists and familiar with the issues?
Because development of an HCP is done by the applicant, it is considered a private action and, therefore, not subject to public participation or review until the U.S. Fish and Wildlife Service receives an official application. The U.S. Fish and Wildlife Service is committed to working with HCP applicants and providing technical assistance as required throughout the HCP development process to accommodate their needs. The U.S. Fish and Wildlife Service believes that HCPs under development are restricted by privacy regulations unless waived by the applicant. However, the U.S. Fish and Wildlife Service does encourage the applicant to involve all appropriate parties. This is especially true for complex and controversial projects, and applicants for most large-scale, regional HCP efforts choose to provide extensive opportunities for public involvement during the planning process. The issuance of a permit is, however, a Federal action that is subject to public review and comment. There is time for public review during the period when the U.S. Fish and Wildlife Service reviews the information and decides to grant or deny a permit based on the completed HCP. A 30-day public comment period is required for all completed HCP applications. During this period, any member of the public may review and comment on the HCP and the accompanying NEPA document (if applicable). Additionally, the U.S. Fish and Wildlife Service solicits public involvement and review, as well as requests for additional information during the scoping process for an Environmental Impact Statement.
What are Low-Effect HCPs?
"Low-Effect" HCPs are those involving (1) minor effects on federally listed, proposed, or candidate species and their habitats covered under the HCP; and (2) minor effects on other environmental values or resources. Low-Effect HCPs do not require NEPA documentation (EIS or EA), and the target permit processing time is approximately 3 months.
What is NEPA?
In issuing an incidental take permit, the U.S. Fish and Wildlife Service must comply with the National Environmental Policy Act (NEPA) and other statutory and regulatory requirements, including any state or local environmental/planning laws. As such, they may be categorically excluded from the National Environmental Policy Act or may require either an Environmental Assessment or, rarely, an Environmental Impact Statement.
What are "No Surprises" Assurances?
No Surprises assurances are provided by the government through the section 10(a)(1)(B) process to non-Federal landowners. Essentially, private landowners are assured that if "unforeseen circumstances" arise, the U.S. Fish and Wildlife Services will not require the commitment of additional land, water or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed to in the HCP without the consent of the permittee. The government will honor these assurances as long as a permittee is implementing the terms and conditions of the HCP, permit, and other associated documents in good faith.
What is Mitigation?
Mitigation is usually required of all landowners who participate in the incidental take permitting process. Under regulations outlined in the National Environmental Policy Act, mitigation is required to reduce or alleviate the impacts of a proposed activity. Mitigation may include avoiding an impact by not taking a certain action or parts of an action, minimizing impacts by limiting the magnitude of an action, repairing or rehabilitating the affected environment, reducing or eliminating the impact over time, and compensating for the impact by replacing or providing substitute resources or environment. How much mitigation is required and costs to the landowner will vary depending on the species, its habitat needs, and the magnitude of effect the proposed project has on the listed species and its habitat.
What kinds of actions are considered mitigation?
Mitigation measures are actions that reduce or address potential adverse effects of a proposed activity upon species covered by an HCP. They should address specific needs of the species involved and be manageable and enforceable. Mitigation measures may take many forms, such as: preservation (via acquisition or conservation easement) of existing habitat; enhancement or restoration of degraded or a former habitat; creation of new habitats; establishment of buffer areas around existing habitats; modifications of land use practices, and restrictions on access.
What kind of monitoring is required for an HCP and who performs it?
The U.S. Fish and Wildlife Service or any party designated as responsible by the U.S. Fish and Wildlife Service (e.g., State wildlife agency, local government) in the HCP will monitor the project for compliance with the terms of the incidental take permit or HCP. If another party is responsible for monitoring compliance with the permit, the U.S. Fish and Wildlife Service will require periodic reporting from such party in order to maintain overall oversight responsibility for the implementation of the HCP's terms and conditions. For regional and other large-scale or long-term HCPs, monitoring programs must provide long-term assurances that the HCP will be implemented correctly, that actions will be monitored, and that such actions will work as expected. This should include periodic accountings of take, surveys to determine species status in project areas or mitigation habitats, and progress reports on fulfillment of mitigation requirements (e.g., habitat acres acquired). Monitoring plans for HCPs should establish target milestones, to the extent practicable, or reporting requirements throughout the life of the HCP, and should address actions to be taken in case of unforeseen or extraordinary circumstances.
In addition, the U.S. Fish and Wildlife Service must monitor the applicant's implementation of the HCPs and the permits terms and conditions; the biological conditions associated with the HCP to determine if species' needs are being met, and must determine if the biological goals that are expected as part of the HCP mitigation and minimization strategy are being realized the U.S. Fish and Wildlife Service's ability to determine if the mitigation and minimization strategy is functioning as intended and the anticipated benefits to the species are being realized.
What is Section 7?
To issue an incidental take permit, the U.S. Fish and Wildlife Service must comply with Section 7 of the Endangered Species Act, which requires federal agencies to insure that their activities are "not likely to jeopardize the continued existence of any endangered species of threatened species" or result in the destruction of a species' critical habitat. Federal agencies must consult regarding any activity that may impact listed species. The issuance of an Incidental Take Permit and approval of an HCP requires that the U.S. Fish and Wildlife Service conduct formal consultation and draft a Biological Opinion regarding the Incidental Take Permit's potential impact on all listed species, candidate species, and critical habitat for those species.
Last updated: June 10, 2014