Habitat Conservation Plans and Incidental Take Permits
Frequently Asked Questions
- What is a "Habitat
Conservation Plan" and an "Incidental Take Permit"?
- Who Needs an Incidental
- What are the benefits
of an Incidental Take Permit and Habitat Conservation Plan to a private
- What species can be
included in an HCP?
- Are Incidental Take
Permits needed for listed plants?
- What is the process
for getting an Incidental Take Permit?
- What needs to be
in an HCP?
- Who approves the
application and HCP?
- What other laws besides
the Endangered Species Act are involved?
- Who is responsible
for NEPA compliance?
- Does the public
get to comment on an HCP? How do public comments affect an HCP?
- Who monitors HCP
compliance, and what happens if someone fails to comply?
FWS authorizations called "Incidental Take Permits" are required when non-federal activities will result in "take" of threatened or endangered species (as defined in the Endangered Species Act, or ESA). The FWS's decision to issue a permit is based upon a conservation plan, which must accompany an application for incidental take. This type of plan is often referred to as a "Habitat Conservation Plan" or "HCP." The purpose of the HCP and permit is to allow these activities by determining and minimizing the level of take and minimizing and mitigating for that take to the maximum extent practicable.
Anyone who believes that his/her "otherwise lawful activities" will result in take of a listed species. Staff from the field office for your area can help you determine whether your proposed project or action is likely to result in take and whether the permitting process is an option to consider. FWS personnel can also provide technical assistance to help you design your project so as to avoid take.
They allow a landowner to legally proceed with an activity that would otherwise result in illegal take of a listed species. In addition, an HCP and Incidental Take Permit provide a landowner with certainty about the kinds of activities that can legally be conducted on his or her land now, and in the future. An HCP also allows a landowner to determine how best to meet the agreed-upon fish and wildlife management goals.
The species in an HCP are those that the applicant chooses to include. The FWS encourages inclusion of all listed species, species that are proposed and candidates for listing, and other species if enough information is available to analyze the impacts of the activity or project and determine adequate mitigation for those species.
There are no federal prohibitions under the ESA for the take of listed plants on nonfederal lands, unless taking of those plants is in violation of state law. Before the FWS issues a permit, however, the effects of the permit on listed plants must be analyzed.
While field office personnel provide you detailed guidance throughout the process, development of an HCP is driven by the applicant's schedule. The applicant is in charge of deciding whether to pursue a permit and who will assist in planning. Personnel from the FWS are there to give you technical and procedural guidance and to process applications. The necessary components of a completed permit application are: a standard application form and the HCP. The length of time to complete the permitting process depends on the complexity of issues involved, the completeness of the documents submitted by the applicant, and the willingness of the applicant to work with the FWS to resolve the details of the HCP process. Once a completed application is forwarded to the FWS's Regional Office, the typical processing time to issuance/denial of the application is about 100 days. Small, non-controversial applications have been processed in as little as 70 days.
Contents of a complete HCP are defined in section 10 of the ESA and its implementing regulations. They include:
- Impacts likely to result from the proposed taking of one or more federally listed species.
- Measures the permit applicant will undertake to monitor, minimize, and mitigate for such impacts; the funding that will be made available to implement such measures; and the procedures to deal with unforeseen circumstances.
- Alternative actions to the taking that the applicant analyzed, and the reasons why the applicant did not adopt such alternatives.
- Other, agreed-upon measures that may be necessary or appropriate to ensure success of the HCP.
The Deputy Regional Director of the FWS's Southeast Region decides whether to issue a permit based on findings that:
- the taking will be incidental to an otherwise lawful activity;
- the impacts will be minimized and mitigated to the maximum extent practicable;
- adequate funding will be provided to ensure that the HCP will succeed;
- the taking will not appreciably reduce the likelihood of the survival and recovery of the species; and
- any other necessary measures specific and agreed-upon for the project are met.
In issuing these permits, the FWS must comply with the National Environmental Policy Act (NEPA) and all other statutory and regulatory requirements. HCPs require an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). It is important to note that a permit's validity is contingent upon the project complying with all other state, local, and federal laws. For example, obtaining a permit from the FWS does not preclude the need to obtain approval from local governments regarding land use and zoning and other issues outside of the authority of the FWS.
The FWS is responsible for NEPA compliance. Sometimes the FWS does not have sufficient staff resources to prepare all appropriate NEPA documents in the time frames desired by most permit applicants. Applicants are encouraged to assist the FWS in preparation of the NEPA documentation for the project. The FWS will be actively involved in preparing the NEPA document and is required to make an independent evaluation of the environmental issues, ensure the accuracy of the information presented, and take responsibility for the document's scope and content.
The ESA requires public comment on the application for a permit, usually for a 30-day period via an announcement in the Federal Register, a daily publication of the Federal Government. Subscriptions to the Federal Register are available and most regional libraries and government repository libraries have subscriptions. After the close of the public comment period, the FWS evaluates the information, views, and concerns of the public and these must be considered in the permit decision.
The FWS or any party designated as responsible in the permit and/or associated agreements (e.g., state wildlife agency or local government) will monitor the project for compliance with its terms and conditions. Generally, the terms and conditions of the permit will identify important milestones and accomplishments that must be achieved for the permit to remain valid. Certainly, it is in the interest of both the FWS and the entity holding the permit to quickly resolve non-compliance issues. The affected FWS field office actively monitor permits after they have been issued. However, violation of the terms of an Incidental Take Permit are a violation of the ESA. The penalties are prescribed by law.