Habitat Conservation Plans (HCPs) and Incidental Take Permits
The Endangered Species Act (ESA) prohibits the "take" of listed species through harm or habitat destruction. In amendments to the ESA passed in 1982, Congress authorized the U.S Fish and Wildlife Service (through the Secretary of the Interior) to issue permits for the "incidental take" of endangered and threatened wildlife species. Thus, permit holders can proceed with a activities that are legal in all other respects, but that results in the "incidental" taking of a listed species.
The following are some frequently asked questions with respect to the HCP process and regulations. Click on a link to find more information on that topic.
HCPs are planning documents required as part of an application for an incidental take permit. They describe the anticipated effects of the proposed taking; how those impacts will be minimized, or mitigated; and how the HCP is to be funded. HCPs can apply to both listed and nonlisted species, including those that are candidates or have been proposed for listing. Conserving species before they are in danger of extinction or are likely to become so can also provide early benefits and prevent the need for listing.
Who needs an incidental take permit?
Anyone whose otherwise-lawful activities will result in the “incidental take” of a listed wildlife species needs a permit. The U.S. Fish and Wildlife Service (FWS) can help determine whether a proposed project or action is likely to result in “take” and whether an HCP is needed. FWS staff can also provide technical assistance to help design a project to avoid take. For example, the project could be designed with seasonal restrictions on construction to minimize disturbance to a species.
What is the benefit of an incidental take permit and habitat conservation plan to a private landowner?
The permit allows the permit-holder to legally proceed with an activity that would otherwise result in the unlawful take of a listed species. The permit holder also has assurances from the FWS through the “No Surprises” regulation.
What is “take”?
The Act defines “take” as “. . . to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” “Harm” includes significant habitat modification that actually kills or injures a listed species through impairing essential behavior such as breeding, feeding, or sheltering.
Section 9 of the Act prohibits the take of endangered and threatened species. The purpose of the incidental take permit is to exempt non-Federal permit-holders—such as States and private landowners— from the prohibitions of section 9, not to authorize the activities that result in take.
What do habitat conservation plans do?
In developing habitat conservation plans, people applying for incidental take permits describe measures designed to minimize and mitigate the effects of their actions— to ensure that species will be conserved and to contribute to their recovery.
Habitat conservation plans are required to meet the permit issuance criteria of section 10(a)(2)(B) of the Act:
taking will be incidental;
the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking;
the applicant will ensure that adequate funding for the plan will be provided;
taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
other measures, as required by the Secretary, will be met.
What needs to be in HCPs?
Section 10 of the Act and its implementing regulations define the contents of HCPs. They include:
-an assessment of impacts likely to result from the proposed taking of one or more federally listed species.
-measures that the permit applicant will undertake to monitor, minimize, and mitigate for such impacts, the funding available to implement such measures, and the procedures to deal with unforeseen or extraordinary circumstances.
-alternative actions to the taking that the applicant analyzed, and the reasons why the applicant did not adopt such alternatives.
-additional measures that the Fish and Wildlife Service may require.
HCPs are also required to comply with the Five Points Policy by including:
biological goals and objectives, which define the expected biological outcome for each species covered by the HCP;
adaptive management, which includes methods for addressing uncertainty and also monitoring and feedback to biological goals and objectives;
monitoring for compliance, effectiveness, and effects;
permit duration which is determined by the time-span of the project and designed to provide the time needed to achieve biological goals and address biological uncertainty; and
public participation according to the National Environmental Policy Act.
What are “No Surprises” assurances?
The FWS provides “No Surprises” assurances to non-Federal landowners through the section 10(a)(1)(B) process. Essentially, State and private landowners are assured that if “unforeseen circumstances” arise, the FWS 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 permit holder. The government will honor these assurances as long as permit holders are implementing the terms and conditions of the HCPs, permits, and other associated documents in good faith. In effect, the government and permit-holders pledge to honor their conservation commitments.
Are incidental take permits needed for listed plants?
There are no Federal prohibitions under the Act for the take of listed plants on non-Federal lands, unless taking those plants is in violation of State law. However, the FWS analyzes the effects of the permit on listed plant species because section 7 of the Act requires that issuing an incidental take permit may not jeopardize any listed species, including plants. In general, it is a good idea to include conservation measures for listed plant species in developing an HCP.
What is the process for getting an incidental take permit?
The applicant decides whether to seek an incidental take permit. While FWS staff members provide detailed guidance and technical assistance throughout the process, the applicant develops an HCP and applies for a permit. The components of a completed permit application are a standard application form, an HCP, an Implementation Agreement (if applicable), the application fee, and a draft National Environmental Policy Act (NEPA) analysis. A NEPA analysis may result in a categorical exclusion, an environmental assessment, or an environmental impact statement. While processing the permit application, the FWS prepares the incidental take permit and a biological opinion under section 7 of the Act and finalizes the NEPA analysis documents. Consequently, incidental take permits have a number of associated documents.
How do we know if we have listed species on our project site?
For assistance, check with the appropriate State fish and wildlife agency, the nearest FWS field office, or the National Marine Fisheries Service (NMFS), for anadromous fish such as salmon.
What kinds of actions are considered mitigation?
Mitigation measures are actions that reduce or address potential adverse effects of a proposed activity on species included in an HCP. They should address specific conservation needs of the species and be manageable and enforceable. Mitigation measures may take many forms, including, but not limited to, payment into an established conservation fund or bank; preservation (via acquisition or conservation easement) of existing habitat; enhancement or restoration of degraded or a former habitat; establishment of buffer areas around existing habitats; modifications of land use practices, and restrictions on access. Which type of mitigation measure used for a specific HCP is determined on a case by case basis, and is based upon the needs of the species and type of impacts anticipated.
What is the legal commitment of a HCP?
Incidental take permits make binding the elements of HCPs. While incidental take permits have expiration dates, the identified mitigation may be in perpetuity. Violating the terms of an incidental take permit may constitute unlawful take under section 9 of the Act.
Who approves an HCP?
The FWS Regional Director decides whether to issue an incidental take permit, based on whether the HCP meets the criteria mentioned above. If the HCP addresses all of the requirements listed above, as well as those of other applicable laws, the FWS issues the permit.
What other laws besides the Endangered Species Act are involved?
In issuing incidental take permits, the FWS complies with the requirements of NEPA and all other statutes and regulations, including State and local environmental/planning laws.
Who is responsible for NEPA compliance during the HCP process?
The FWS is responsible for ensuring NEPA compliance during the HCP process. However, if the Service does not have sufficient staff resources, an applicant may, within certain limitations, prepare the draft NEPA analysis. Doing so can benefit the applicant and the government by expediting the application process and permit issuance. In cases like this, the FWS provides guidance, reviews the document, and takes responsibility for its scope, adequacy, and content.
Does the public get to comment on our HCP? How do public comments affect our HCP?
The Act requires a 30-day period for public comments on applications for incidental take permits. In addition, because NEPA requires public comment on certain documents, the FWS operates the two comment periods concurrently. Generally, the comment period is 30 days for a Low Effect HCP, 60 days for an HCP that requires an environmental assessment, and 90 days for an HCP that requires an environmental impact statement. The FWS considers public comments in permit decisions.
What kind of monitoring is required for a HCP, and who performs it?
Three types of monitoring may be required: compliance, effectiveness, and effects. In general, the permit-holder is responsible for ensuring that all the required monitoring occurs. The FWS reviews the monitoring reports and coordinates with the permit-holder if any action is needed.
Does the Fish and Wildlife Service try to accommodate the needs of HCP participants who are not professionally involved in the issues?
Because applicants develop HCPs, the actions are considered private and, therefore, not subject to public participation or review until the FWS receives an official application. The FWS is committed to working with people applying for permits and providing technical assistance throughout the process to accommodate their needs. However, the FWS does encourage applicants to involve a range of parties, a practice that is especially valuable for complex and controversial projects. Applicants for most large-scale, regional HCPs choose to provide extensive opportunities for public involvement during the planning process. Issuing permits is, however, a Federal action that is subject to public review and comment. There is time for such review during the period when the FWS reviews the information. In addition, the FWS solicits public involvement and review, as well as requests for additional information during the scoping process when an EIS is required.
Are independent scientists involved in developing an HCP?
The views of independent scientists are important in developing mitigation and minimization measures in nearly all HCPs. In many cases, applicants contact experts who are directly involved in discussions on the adequacy of possible mitigation and minimization measures. In other cases, the FWS incorporates the views of independent scientists indirectly through their participation in listing documents, recovery plans, and conservation agreements that applicants reference in developing their HCPs.
How does the FWS ensure that species are adequately protected in HCPs?
The FWS has strengthened the HCP process by incorporating adaptive management when there are species for which additional scientific information may be useful during the implementation of the HCP. These provisions allow FWS and NMFS to work with landowners to reach agreement on changes in mitigation strategies within the HCP area, if new information about the species indicates this is needed. During the development of HCPs, the FWS and NMFS discuss any changes in strategy with landowners, so that they are aware of any uncertainty in management strategies and have concurred with the adaptive approaches outlined.
What will the FWS do in the event of unforeseen circumstances that may jeopardize the species?
The FWS will use its authority to manage any unforeseen circumstances that may arise to ensure that species are not jeopardized as a result of approved HCPs. In the rare event that jeopardy to the species cannot be avoided, the FWS may be required to revoke the permit.