Since two-thirds of federally listed species have at least some habitat on private land, and some species have most of their remaining habitat on private land, the U.S. Fish and Wildlife Service (Service) has developed an array of tools and incentives to protect the interests of private landowners while encouraging management activities that benefit listed and other at-risk species.
Congress recognized the need for a process to reduce conflicts between listed species and economic development, so it amended the Endangered Species Act (ESA) in 1982 to add an exemption for incidental take of listed species that would result from non-federal activities. Non-federal entities must develop a conservation plan that meets specific requirements as identified in the ESA, apply for an incidental take permit, and, once issued, implement the project as specified in their permit.
The Habitat Conservation Plan program creates creative partnerships that allow public and private sectors to work with the Service to address listed and at-risk species in an ecosystem context, generate long-term commitments to conserve such species, and deliver regulatory assurances to project proponents.
What is a Habitat Conservation Plan?
A Habitat Conservation Plan (HCP) is a planning document designed to accommodate economic development to the extent possible by authorizing the limited and unintentional take of listed species when it occurs incidental to otherwise lawful activities. The plan is designed not only to help landowners and communities but also to provide long-term benefits to species and their habitats.
HCPs describe the anticipated effects of the proposed taking, how those impacts will be minimized and mitigated, and how the conservation measures included in the plan will be funded.
If the Service finds an HCP meets the specified criteria, it issues an incidental take permit. This allows the permit holder to proceed with an activity that could otherwise result in the unlawful take of a listed species.
Who can participate?
Any non-federal entity (such as private companies, local or state governments, etc.) may pursue an incidental take permit for their otherwise lawful activity.
What is the applicant’s role?
Working with the Service, the potential applicant develops an HCP that assesses the likely impacts on target species from the proposed project, the steps that will be taken to minimize and mitigate those impacts, and how the steps will be funded. The plan also identifies any alternatives that could avoid the incidental take and the reasons why those alternatives are not being chosen. The applicant then applies to the Service for an incidental take permit.
An HCP that individual landowners can join may already exist in a given area. Such plans are known as programmatic HCPs and are often county- or even region-wide. HCPs can also include conservation measures for vulnerable plant and animal species that are not listed federally as endangered or threatened.
What are the benefits?
For the non-Federal permittee: After receiving an incidental take permit for activities that would otherwise result in the unlawful take of listed species, they can move forward with their project having the assurance that such take will not be in violation of the ESA.
For the species: HCPs can provide permanent protection and management of habitat for the species covered by the HCP. Incidental take permits make the elements of the HCP legally binding. While incidental take permits have expiration dates, the identified mitigation measures may extend into perpetuity. Violating the terms of an incidental take permit may constitute unlawful take under the ESA.
Section 10 of the ESA 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 Service may require.
HCPs are also required to comply with the Five Points Policy, which provided further guidance on specific aspects of the HCP, 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 timespan 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 (NEPA).
- Landowners who suspect that a federally listed species could occur on a project site or may be affected by their otherwise lawful activity can request information from the nearest Service field office or state wildlife agency.
- If a listed species is present or may be affected, the potential applicant decides whether to seek an incidental take permit. The Service can help the potential applicant to make this determination.
- While Service biologists provide detailed guidance and technical assistance throughout the process, it is the applicant who develops the proposed HCP and applies for the permit.
- As it evaluates the permit application, the Service prepares a biological opinion under section 7 of the ESA and completes the NEPA and National Historical Preservation Act analysis documents.
- An environmental impact analysis or assessment under NEPA may be necessary unless there is a categorical exemption.
- The Service evaluates the HCP to determine whether it meets the issuance criteria established by law and regulation, prepares a findings document, and opens public comment periods for the NEPA and HCP documents.
- Once the permit has been issued, the permittee may begin their work in accordance with the terms and conditions of their permit. This includes continued coordination with the Service by providing monitoring reports.
- When the permit reaches the end of the established permit term, the permittee can work with the Service to renew their permit, if needed.