Habitat Conservation Plans FAQs
Section 7 of the Endangered Species Act provides the means for federal agencies to authorize, fund or carry out
development projects while insuring that such projects would not jeopardize the continued existence of threatened or endangered
species. Non-federal developers had no similar process and faced an irresolvable situation if their project would result in the
killing, harming or harassment (known in legal terms as "taking") of threatened or endangered species.
Incidental take permits are required when non-Federal activities will result in "take" of threatened or endangered species. A habitat conservation plan or "HCP" must accompany an application for an incidental take permit. The purpose of the habitat conservation planning process, and subsequent issuance of an incidental take permit, is to authorize the incidental take of a listed species, not to authorize the activities that result in take. This process ensures adequate minimizing and mitigating of the effects of the authorized incidental take to the maximum extent practicable.
"Take" is defined in the Endangered Species Act (Act) as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any threatened or endangered species. Harm may include significant habitat modification where it actually kills or injures a listed species through impairment of essential behavior (e.g., nesting or reproduction).
As of August, 1996, 190 incidental take permits have issued and approximately 200 are in development. Both the number of HCPs and the size and complexity of the areas they cover have increased. Most of the earlier HCPs approved were for planning areas of less than 1,000 acres. However, of the 200 HCPs being developed as of September 1996, approximately 25 exceed 10,000 acres, 25 exceed 100,000 acres, and 18 exceed 500,000 acres. This suggests that HCPs are evolving from a process adopted primarily to address single developments to one that includes broad-based, landscape-level planning tools utilized to achieve long-term biological and regulatory goals. These large-scale, regional HCPs can significantly reduce the burden of the Act on small landowners by providing efficient mechanisms for compliance, distributing the economic and logistic impacts of endangered species conservation, and bringing a broad range of landowner activities under legal protection of HCPs.
Anyone who believes that their otherwise-lawful activities will result in "take" of a listed species needs an incidental take permit. The Service can help you determine whether your proposed project or action is likely to result in "take" and whether an HCP is an option to consider. Service personnel can also provide technical assistance to help you design your project so as to avoid take. For example, the project could be designed with seasonal restrictions on construction to minimize disturbance during nesting.
The permit allows a landowner to legally proceed with an activity that would otherwise result in illegal incidental take of a listed species. In addition, to address the problem of maintaining regulatory assurances and providing certainty to landowners, the "No Surprises" Policy for HCPs was developed. Under this policy, the Service will not require additional lands, additional funds, or additional restrictions on lands released for development or use, from any permittee who, in good faith, is adequately implementing or has implemented an approved HCP. An HCP also allows a landowner to determine how best to meet the agreed-upon fish and wildlife goals and helps conserve the species.
There are no Federal prohibitions under the Act for the take of listed plants on non-Federal lands, unless taking of those plants is in violation of State law. However, before the Service issues a permit, the effects of the permit on listed plants must be analyzed because section 7 of the Act requires that issuance of an HCP permit must not jeopardize any listed species, including plants.
While Service personnel provide detailed guidance throughout the process, development of an HCP is driven by the applicant. The applicant is in charge of deciding whether to pursue an incidental take permit. Personnel from the Service are there to give technical and procedural guidance and to process applications. The necessary components of a completed permit application are: a standard application form, the HCP, and Implementation Agreement (if required), and, if appropriate, a National Environmental Policy Act (NEPA) analysis.
The length of time to complete the permitting process depends on the complexity of issues involved (e.g., the number of species) and the completeness of the documents submitted by the applicant. The Service will work to complete all steps such as the public comment process as expeditiously as possible. Processing can take up to 24 month or more depending on the complexity of project and its associated issues.
The following link is to a PDF version (331KB) of the ITP application: http://forms.fws.gov/3-200-56.pdf.
Check with the appropriate State fish and wildlife agency, the nearest Service field office, or the National Marine Fisheries Service (for anadromous fish). You can arrange for a biologist from one of these agencies to visit your property to determine whether a listed species may be on your project site.
The contents of an HCP are defined in section 10 of the Act and its implementing regulations. They include:
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.
The elements of the HCP are made binding through the incidental take permit. While incidental take permits contain an expiration date, the mitigations identified in the HCP can be in perpetuity in certain cases. Violation of the terms of an incidental take permit would result in illegal take under section 9 of the Act. If the violation is deemed technical or inadvertent in nature, the 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.
The Regional Director of the Service's Region decides whether to issue an HCP permit based on findings that:
If the HCP addresses all of these requirements and those of other applicable laws, the permit is issued.
In issuing an incidental take permit, the Service must comply with the NEPA and all other statutory and regulatory requirements, including any State or local environmental/planning laws. HCPs may be categorically excluded from NEPA or may require either an EA or, rarely, an EIS.
The Service is responsible for ensuring NEPA compliance during the HCP process. However, if the Service does not have sufficient staff resources to prepare the appropriate NEPA analysis in a timely fashion, an applicant may, within certain limitations, prepare draft Environmental Assessment analyses. This can benefit the applicant and the government by expediting the application process and issuance of the permit. When this is done, the Service will:
The 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 Service runs these two comment periods concurrently. Therefore, public comments must be considered in the permit decision.
The Service or any party designated as responsible by the Service (e.g., State wildlife agency, local government) in the HCP (or the IA) will monitor the project for compliance with the terms of the incidental take permit, HCP or IA (if required). If another party is responsible for monitoring compliance with the permit, the 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.