U.S. Fish & Wildlife Service Habitat Conservation Plans Under the Endangered Species Act

Introduction Why should we save endangered species? Congress answered this question in the introduction to the Endangered Species Act of 1973 (Act), recognizing that endangered and threatened species of wildlife and plants “are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.”

After this finding, Congress said that the purposes of the Act are “. . . to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such . Cleckler/USFWS John . . species. . . .” Habitat Conservation The endangered California tiger salamander is among the listed species included in the Plans (HCPs) under section 10(a)(1)(B) East Contra Costa County Habitat Conservation Plan. of the Act provide for partnerships with non-Federal parties to conserve the ecosystems upon which listed species an HCP is needed. FWS staff can Section 9 of the Act prohibits the depend, ultimately contributing to their also provide technical assistance to take of endangered and threatened recovery. help design a project to avoid take. species. The purpose of the incidental For example, the project could be take permit is to exempt non-Federal What are HCPs? designed with seasonal restrictions on permit-holders—such as States HCPs are planning documents construction to minimize disturbance to and private landowners— from required as part of an application for an a species. the prohibitions of section 9, not to incidental take permit. They describe authorize the activities that result in the anticipated effects of the proposed What is the benefit of an incidental take. taking; how those impacts will be take permit and habitat conservation minimized, or mitigated; and how the plan to a private landowner? What do habitat conservation plans HCP is to be funded. The permit allows the permit-holder do? to legally proceed with an activity that In developing habitat conservation HCPs can apply to both listed and would otherwise result in the unlawful plans, people applying for incidental nonlisted species, including those that take of a listed species. The permit- take permits describe measures are candidates or have been proposed holder also has assurances from the designed to minimize and mitigate the for listing. Conserving species before FWS through the “No Surprises” effects of their actions— to ensure they are in danger of extinction or are regulation. that species will be conserved and to likely to become so can also provide contribute to their recovery. early benefits and prevent the need for What is “take”? listing. The Act defines “take” as “. . . to Habitat conservation plans are harass, harm, pursue, hunt, shoot, required to meet the permit issuance Who needs an incidental take permit? wound, kill, trap, capture, or collect, criteria of section 10(a)(2)(B) of the Act: Anyone whose otherwise-lawful or to attempt to engage in any such activities will result in the “incidental conduct.” “Harm” includes significant • (i) taking will be incidental; take” of a listed wildlife species needs habitat modification that actually kills a permit. The U.S. Fish and Wildlife or injures a listed species through • (ii) the applicant will, to the Service (FWS) can help determine impairing essential behavior such as maximum extent practicable, whether a proposed project or action is breeding, feeding, or sheltering. minimize and mitigate the impacts of likely to result in “take” and whether the taking; • (iii) the applicant will ensure that process. Essentially, State and agency, the nearest FWS field office, or adequate funding for the plan will be private landowners are assured the National Marine Fisheries Service provided; that if “unforeseen circumstances” (NMFS), for anadromous fish such as arise, the FWS will not require the salmon. • (iv) taking will not appreciably commitment of additional land, water, reduce the likelihood of the survival or financial compensation or additional What kinds of actions are considered and recovery of the species in the restrictions on the use of land, water, mitigation? wild; and or other natural resources beyond the Mitigation measures are actions that level otherwise agreed to in the HCP reduce or address potential adverse • (v) other measures, as required by without the consent of the permit- effects of a proposed activity on species the Secretary, will be met. holder. The government will honor included in an HCP. They should these assurances as long as permit- address specific conservation needs What needs to be in HCPs? holders are implementing the terms of the species and be manageable and Section 10 of the Act and its and conditions of the HCPs, permits, enforceable. Mitigation measures implementing regulations define the and other associated documents in good may take many forms, including, contents of HCPs. They include: faith. In effect, the government and but not limited to, payment into an permit-holders pledge to honor their established conservation fund or • an assessment of impacts likely to conservation commitments. bank; preservation (via acquisition or result from the proposed taking of conservation easement) of existing one or more federally listed species. Are incidental take permits needed for habitat; enhancement or restoration listed plants? of degraded or a former habitat; • measures that the permit applicant There are no Federal prohibitions establishment of buffer areas around will undertake to monitor, minimize, under the Act for the take of listed existing habitats; modifications of and mitigate for such impacts, the plants on non-Federal lands, unless land use practices, and restrictions funding available to implement such taking those plants is in violation of on access. Which type of mitigation measures, and the procedures to deal State law. However, the FWS analyzes measure used for a specific HCP is with unforeseen or extraordinary the effects of the permit on listed plant determined on a case by case basis, and circumstances. species because section 7 of the Act is based upon the needs of the species requires that issuing an incidental take and type of impacts anticipated. • alternative actions to the taking permit may not jeopardize any listed that the applicant analyzed, and the species, including plants. In general, it What is the legal commitment of a reasons why the applicant did not is a good idea to include conservation HCP? adopt such alternatives. measures for listed plant species in Incidental take permits make binding developing an HCP. the elements of HCPs. While incidental • additional measures that the Fish take permits have expiration dates, and Wildlife Service may require. What is the process for getting an the identified mitigation may be in incidental take permit? perpetuity. Violating the terms of an HCPs are also required to comply with The applicant decides whether to incidental take permit may constitute the Five Points Policy by including: seek an incidental take permit. While unlawful take under section 9 of the FWS staff members provide detailed Act. 1. biological goals and objectives, guidance and technical assistance which define the expected biological throughout the process, the applicant Who approves an HCP? outcome for each species covered by develops an HCP and applies for The FWS Regional Director decides the HCP; a permit. The components of a whether to issue an incidental take completed permit application are a permit, based on whether the HCP 2. adaptive management, which standard application form, an HCP, meets the criteria mentioned above. includes methods for addressing an Implementation Agreement (if If the HCP addresses all of the uncertainty and also monitoring applicable), the application fee, and a requirements listed above, as well as and feedback to biological goals and draft National Environmental Policy those of other applicable laws, the FWS objectives; Act (NEPA) analysis. A NEPA analysis issues the permit. may result in a categorical exclusion, 3. monitoring for compliance, an environmental assessment, or an What other laws besides the effectiveness, and effects; environmental impact statement. Endangered Species Act are involved? In issuing incidental take permits, the 4. permit duration which is determined While processing the permit FWS complies with the requirements by the time-span of the project and application, the FWS prepares the of NEPA and all other statutes and designed to provide the time needed incidental take permit and a biological regulations, including State and local to achieve biological goals and opinion under section 7 of the Act and environmental/planning laws. address biological uncertainty; and finalizes the NEPA analysis documents. Consequently, incidental take Who is responsible for NEPA 5. public participation according to the permits have a number of associated compliance during the HCP process? National Environmental Policy Act. documents. The FWS is responsible for ensuring NEPA compliance during the HCP What are “No Surprises” assurances? How do we know if we have listed process. However, if the Service does The FWS provides “No Surprises” species on our project site? not have sufficient staff resources, assurances to non-Federal landowners For assistance, check with the an applicant may, within certain through the section 10(a)(1)(B) appropriate State fish and wildlife limitations, prepare the draft NEPA analysis. Doing so can benefit the Are independent scientists involved in applicant and the government by developing an HCP? expediting the application process and The views of independent scientists are permit issuance. In cases like this, the important in developing mitigation and FWS provides guidance, reviews the minimization measures in nearly all document, and takes responsibility for its HCPs. In many cases, applicants contact scope, adequacy, and content. experts who are directly involved in discussions on the adequacy of possible Does the public get to comment on our mitigation and minimization measures. HCP? How do public comments affect In other cases, the FWS incorporates our HCP? the views of independent scientists The Act requires a 30-day period for indirectly through their participation in public comments on applications for listing documents, recovery plans, and incidental take permits. In addition, conservation agreements that applicants because NEPA requires public comment reference in developing their HCPs. on certain documents, the FWS operates the two comment periods concurrently. How does the FWS ensure that species Generally, the comment period is 30 are adequately protected in HCPs? days for a Low Effect HCP, 60 days for The FWS has strengthened the HCP an HCP that requires an environmental process by incorporating adaptive assessment, and 90 days for an HCP management when there are species for that requires an environmental impact which additional scientific information statement. The FWS considers public may be useful during the implementation comments in permit decisions. of the HCP. These provisions allow FWS and NMFS to work with landowners What kind of monitoring is required for to reach agreement on changes in a HCP, and who performs it? mitigation strategies within the HCP Three types of monitoring may be area, if new information about the required: compliance, effectiveness, and species indicates this is needed. During effects. In general, the permit-holder the development of HCPs, the FWS and is responsible for ensuring that all the NMFS discuss any changes in strategy required monitoring occurs. The FWS with landowners, so that they are aware reviews the monitoring reports and of any uncertainty in management coordinates with the permit-holder if any strategies and have concurred with the action is needed. adaptive approaches outlined.

Does the Fish and Wildlife Service What will the FWS do in the event of try to accommodate the needs of HCP unforeseen circumstances that may participants who are not professionally jeopardize the species? involved in the issues? The FWS will use its authority to Because applicants develop HCPs, manage any unforeseen circumstances the actions are considered private that may arise to ensure that species are and, therefore, not subject to public not jeopardized as a result of approved participation or review until the FWS HCPs. In the rare event that jeopardy to receives an official application. The FWS the species cannot be avoided, the FWS is committed to working with people may be required to revoke the permit. applying for permits and providing technical assistance throughout the How can I obtain information on process to accommodate their needs. numbers and types of HCPs? Our national HCP database displaying However, the FWS does encourage basic statistics on HCPs is available applicants to involve a range of parties, online from our Habitat Conservation a practice that is especially valuable Planning page at http://ecos.fws. for complex and controversial projects. gov/conserv_plans/servlet/gov.doi.hcp. Applicants for most large-scale, regional servlets.PlanReportSelect?region=9&ty HCPs choose to provide extensive pe=HCP. opportunities for public involvement during the planning process. Issuing U. S. Fish and Wildlife Service permits is, however, a Federal action Endangered Species Program that is subject to public review and 4401 N. Fairfax Drive, Room 420 comment. There is time for such review Arlington, VA 22203 during the period when the FWS 703-358-2171 reviews the information. In addition, http://www.fws.gov/endangered/what- the FWS solicits public involvement and we-do/hcp-overview.html review, as well as requests for additional information during the scoping process April 2011 when an EIS is required.