[Federal Register Volume 61, Number 232 (Monday, December 2, 1996)]
[Notices]
[Pages 63854-63857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30610]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


Notice of Availability of Final Handbook for Habitat Conservation 
Planning and Incidental Take Permitting Process

AGENCIES: Fish and Wildlife Service, Interior, and National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Commerce.

ACTION: Notice of document availability.

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SUMMARY: The Fish and Wildlife Service and National Marine Fisheries 
Service (hereafter referred to as the Services) announce the 
availability of their final Handbook for Habitat Conservation Planning 
and Incidental Take Permitting Process. This final guidance document 
provides internal guidance for conducting the incidental take permit 
program under section 10(a)(1)(B) of the Endangered Species Act of 
1973, as amended (Act). Its purpose is to provide policy and guidance 
for section 10(a)(1)(B) procedures to promote efficiency and nationwide 
consistency within and between the Services. Although intended 
primarily as internal agency guidance, this Handbook is fully available 
for public evaluation, and use, as appropriate.

ADDRESSES: Persons wishing to receive a copy of the final Handbook for 
Habitat Conservation Planning and Incidental Take Permitting Process 
should contact the Division of Endangered Species, U.S. Fish and 
Wildlife Service, 4401 North Fairfax Drive, Room 452, Arlington, 
Virginia 22203, or the Endangered Species Division, National Marine 
Fisheries Service, 1335 East-

[[Page 63855]]

 West Highway, Silver Spring, Maryland 20910.

FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of 
Endangered Species, U.S. Fish and Wildlife Service, (703/358-2171), or 
Robert Ziobro, Acting Chief, Endangered Species Division, National 
Marine Fisheries Service at the above addresses.

SUPPLEMENTARY INFORMATION:

Background

    Section 9(a)(1)(B) makes it unlawful for any person to ``take'' an 
endangered species. Take of threatened species is prohibited by 
regulations issued by the Services under the authority of Sections 4(d) 
and 9(a)(1)(G) of the Act. See, e.g., 50 CFR 17.31, 17.21, and 
17.40-.48 for FWS and 50 CFR 222 and 227 for NMFS. ``Take'' is defined 
by the Act as to ``harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or attempt to engage in any such conduct.'' 
Section 10(a)(1)(B) of the Act (16 U.S.C. 1539(a)(1)(B)) allows the 
Services, under certain circumstances, to issue permits to non-Federal 
entities to allow ``incidental take'' of federally listed fish and 
wildlife species. (Federal agencies may obtain similar authority for 
take under section 7 of the Act). The Act defines ``incidental take'' 
as take that is ``incidental to, and not the purpose of, carrying out 
an otherwise lawful activity.'' Any applicant for an incidental take 
permit must submit to the Services a ``conservation plan'' or ``Habitat 
Conservation Plan (HCP)'' that specifies, among other things, the 
impacts to affected species likely to result from such taking and the 
steps the applicant will take to minimize and mitigate such impacts.
    This final Handbook provides consistent procedures for Service 
compliance with the incidental take permit provisions of section 
10(a)(1)(B) of the Act. Consistency in the section 10(a)(1)(B) program 
will be achieved by:
    (1) providing national procedural and policy guidance;
    (2) providing standardized guidance to Service offices and 
personnel who participate in conservation planning programs under 
section 10(a)(1)(B) and review and process incidental take permit 
applications;
    (3) providing assistance to applicants in the non-Federal sector 
who wish to apply for incidental take permits; and
    (4) providing for conservation of federally listed, proposed, and 
candidate species.

Public Comments Addressed

    The Services considered all information and recommendations from 
earlier comments submitted on the Handbook. The major issues advanced 
by commenters have been combined, paraphrased, and responded to below.
    Issues: Several commenters stated that a process should be 
incorporated into the HCP planning process so that proposed, 
candidates, and unlisted species can be included on a permit.
    Response: The Services revised the Handbook to allow the names of 
unlisted species that are adequately addressed in an HCP to be listed 
on a permit with a delayed effective date tied to the date of any 
future listing. Unlisted species as used here includes candidates, 
proposed, and any other species mutually agreed to by the applicant and 
Services that are adequately addressed in the HCP as though they were 
listed. The Services recognize that the primary jurisdiction over 
candidate and unlisted species generally rests with the affected State 
fish and wildlife agencies, thereby prompting the need for close 
coordination and active cooperation with State agencies in the HCP 
process.
    Issue: Commenters stated that the HCP categories unnecessarily 
complicate the HCP process. In addition, specific instructions are 
needed for assigning projects to categories.
    Response: The Services decided to eliminate the high-effect and 
medium-effect categories and link the target processing times to the 
NEPA analysis required rather than to HCP category. The rationale for 
this is that there is little to distinguish the high-effect and medium-
effect categories other than NEPA requirements. The expedited low-
effect category would remain in place. The Handbook also establishes 
target permit processing timelines for HCPs based on the level of NEPA 
analysis required. Although not mandated by law or regulation, these 
targets are adopted as FWS and NMFS policy, and all offices are 
expected to meet these targets to the maximum extent practicable.
    Issue: Commenters stated that Implementing Agreements should not be 
required for single-project, low-to medium-effect projects.
    Response: The Handbook has been revised by the Services so that an 
Implementing Agreement is no longer mandatory for all HCPs. 
Implementing Agreements would not be required for low-effect HCPs, and 
would be prepared in such situations only when one is requested by the 
permit applicant. In other HCPs, the development of the Implementing 
Agreement will depend on the size and scope of the HCP and is left to 
the discretion of the FWS's Regional Director or NMFS's Regional 
Administrator and the applicant. Implementing Agreements are 
recommended for regional or other large-scale HCPs that address 
significant portions of a species' range or involve numerous activities 
or landowners, or for HCPs with long-term mitigation and monitoring 
programs.
    Issue: Commenters stated that more guidance was needed for 
mitigation issues, such as the suitability of research for mitigation 
or standardizing mitigation strategies.
    Response: The Services have revised the Handbook to restate that, 
first and foremost, mitigation strategies should compensate for habitat 
lost through the permitted activities of the HCP by establishing 
suitable habitat for the species that will be conserved and held in 
perpetuity, if possible. For example, the mitigation requirement for 
low-effect HCPs or for HCPs that have a negligible effect on habitat 
could be to restore or enhance existing habitat so that it better meets 
the species' requirements. Research by itself is not considered a 
preferred mitigation strategy, since the type of mitigation is usually 
related directly to correcting the effect of the action. However, 
research may be an integral part of a mitigation strategy.
    In addition, the Handbook reiterates that mitigation measures 
required by individual FWS or NMFS offices should be as consistent as 
possible for the same species. This can be challenging when a species 
encompasses multiple offices or regions, but is essential. Also, 
mitigation standards should also be developed in coordination with the 
appropriate state wildlife agencies. The Service should not apply 
inconsistent mitigation policies for the same species, unless 
differences are based on biological or other valid reasons and are 
clearly explained. Consistent mitigation strategies help streamline the 
HCP development process--especially for smaller HCPs--by providing 
readily available standards which applicants can adopt in their HCPs.
    Issue: Commenters suggested that the NEPA analysis should be 
limited to the impacts of the Federal action (i.e., issuance of the 
incidental take permit) and that some of the NEPA analysis is 
duplicative to the HCP planning process.
    Response: The scope of the NEPA analysis covers the direct, 
indirect, and cumulative effects of the proposed incidental take 
permit, including the mitigation and minimization measures proposed for 
implementation in the HCP. However, the scope of the NEPA analysis will 
vary depending on the

[[Page 63856]]

nature of the scope of activities described in the HCP. In some cases, 
the anticipated environmental effects in the NEPA document that 
addresses the HCP may be confined to effects on endangered species and 
other wildlife and plants, simply because there are no other important 
effects. In many cases, the NEPA analysis will focus on the effects of 
the minimization and mitigation actions on other wildlife and plants 
and will examine any alternatives or conservation strategies that might 
not otherwise have been considered. In other cases, the minimization 
and mitigation activities proposed in the HCP may affect a wider range 
of impacts analyzed under NEPA, such as cultural resources or water 
use. It is important to keep in mind, however, that, as required by the 
White House Council of Environmental Quality (CEQ) regulations, the 
NEPA analysis for an HCP should be directed toward analyzing direct, 
indirect, and cumulative impacts that would be caused by the approval 
of the HCP, that are reasonably foreseeable, and that are potentially 
significant. These impacts may extend beyond the direct impacts of the 
permit itself.
    In addition, because the CEQ regulations specifically permit NEPA 
documents to be combined with other agency documents to reduce 
duplication and paperwork (40 CFR 1506.4), the Services revised the 
Handbook regarding the NEPA analysis to encourage the Service's offices 
to combine the HCP and NEPA analysis into a single document. This 
technique should not be viewed as preparation of two separate documents 
that are then published under the same cover, but rather one integrated 
analysis that meets the requirements of both NEPA and ESA. For example, 
the discussion of effects should include analysis of both the impacts 
of the proposed HCP and the alternatives to the listed plants and the 
wildlife as well as other environmental effects that should be analyzed 
under NEPA.
    Issue: Commenters stated that the section 7 process was overly 
burdensome to the applicant, and recommended that HCP permit should be 
exempted from section 7 requirements.
    Response: Issuance of an incidental take permit is a Federal action 
subject to section 7 of the ESA. Section 7(a)(2) requires all Federal 
agencies, in consultation with the Services, to ensure that any action 
``authorized, funded, or carried out'' by any such agency ``is not 
likely to jeopardize the continued existence of any endangered species 
or threatened species or result in the destruction or adverse 
modification'' of critical habitat. Because issuance of a section 10 
permit involves an authorization, it is subject to this provision.
    The provisions of section 7 and section 10 are similar. Indeed, one 
of the statutory criteria for determining whether to issue an 
incidental take permit--whether ``the taking will not appreciably 
reduce the likelihood of the survival and recovery of the species in 
the wild''--is based on the regulatory definition of the section 
7(a)(2) jeopardy standard. See section 10(a)(2)(B)(iv) of the ESA and 
50 CFR section 402.02 (definition of ``jeopardize the continued 
existence of''). However, section 7 and its regulations introduce 
several considerations into the HCP process that are not explicitly 
required by section 10--specifically, indirect effects, effects on 
federally listed plants, and effects on critical habitat. The Services 
have revised the Handbook so that the section 7 requirements are 
discussed earlier in the HCP planning process to help resolve any 
conflicts and to expedite the process.
    Issue: Comments were received regarding the inconsistencies between 
50 CFR Part 13 and incidental take permits.
    Response: On September 5, 1995, the Fish and Wildlife Service 
published a proposed rule in the Federal Register amending the general 
regulations for its permit program (50 CFR Part 13 and Part 17). The 
Service is currently drafting additional language to further clarify 
the relationship between Part 13 and various endangered species permits 
issued under Part 17, and an amended rule will be published in the near 
future.
    Issue: Several issues were raised regarding the ``No Surprises'' 
policy included in the draft HCP Handbook. These include: a request to 
clarify the fact that net benefit to the species is not required to 
obtain ``No Surprises'' assurances; the suggestion that the 
``extraordinary circumstances'' provision in the policy is not 
consistent with the promise of long-term certainty under HCPs; and the 
conflicting suggestions that the ``No Surprises'' policy should be 
codified as a regulation and that the ``No Surprises'' policy exceeds 
FWS and NMFS authority under the ESA.
    Response: The first issue pertains to the assurances provided to an 
applicant with an HCP that does not provide a net benefit to the 
species covered in the HCP. The HCP Handbook describes the differing 
assurances provided applicants depending upon whether the HCP is 
designed to provide a net benefit to the species. The following two 
assurances are provided regardless of whether an HCP provides an 
overall net benefit to a species:
    1. If additional mitigation measures are subsequently deemed 
necessary to provide for the conservation of a species that was 
otherwise adequately covered under the terms of a properly functioning 
HCP, the obligation for such measures shall not rest with the HCP 
permittee.
    2. If extraordinary circumstances warrant the requirement of 
additional mitigation from an HCP permittee who is in compliance with 
the HCP's obligations, such mitigation shall maintain the original 
terms of the HCP to the maximum extent possible. Further, any such 
changes shall be limited to modifications within any Conserved Habitat 
areas which might be established under the HCP or to the HCP's 
operating conservation program for the affected species. In all cases, 
additional mitigation requirements shall not involve the payment of 
additional compensation or apply to parcels of land available for 
development or land management under the original terms of the HCP 
without the consent of the HCP permittee.
    In addition, even in the event of unforeseen circumstances, the FWS 
and NMFS will not seek additional mitigation from an HCP permittee 
where the terms of a properly functioning HCP agreement were designed 
to provide an overall net benefit for that species and contained 
measurable criteria for the biological success of the HCP which have 
been or are being met. This means that the Services will not attempt to 
impose additional mitigation measures of any type under the terms 
stated. It is intended to encourage HCP applicants to develop HCPs that 
provide an overall net benefit to affected species. It does not mean 
that any HCP must in fact have already achieved a net benefit before 
the ``No Surprises'' policy applies, but instead that the HCP must have 
been designed to achieve an overall net benefit and is being 
implemented fully by the HCP permittee.
    The second issue, which pertains to the promise of long-term 
certainty under HCPs and the ``extraordinary circumstances'' provision 
in the policy, has been clarified in the final Handbook. The ``No 
Surprises'' policy provides certainty for private landowners in HCPs 
through the following assurances: In negotiating ``unforeseen 
circumstances'' provisions for HCPs, the Services will not require the 
commitment of additional land or financial compensation beyond the 
level

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of mitigation which was otherwise adequately provided for a species 
under the terms of a properly functioning HCP. Moreover, the Services 
will not seek any other form of additional mitigation from an HCP 
permittee except under extraordinary circumstances. Thus, the long-term 
certainty that is provided is the assurance that under no 
circumstances, including extraordinary circumstances, shall an HCP 
permittee who is abiding by the terms of their HCP be required to 
provide a greater financial commitment or accept additional land use 
restrictions on property available for economic use or development.
    The third issue pertains to the codification of the ``No 
Surprises'' policy into a regulation. The Services do not believe it is 
necessary to codify the ``No Surprises'' policy as a specific 
regulation, because it is simply a statement of policy. Nevertheless, 
the policy has been subjected to procedures similar to those used to 
codify regulations. The policy was incorporated into the draft Handbook 
for Habitat Conservation Planning and Incidental Take Permitting 
Process to help address the problem of maintaining regulatory 
assurances for applicants applying for incidental take permits through 
the HCP process. This policy was subjected to a public review process 
when a notice of availability was published in the Federal Register for 
the draft Handbook for Habitat Conservation Planning and Incidental 
Take Permitting Process on December 21, 1994 and the FWS solicited 
comments through this availability announcement.
    The final issue concerns the fact that commenters objected to the 
``No Surprises'' policy because it is seen as exceeding FWS and NMFS 
authority under the ESA. The Services believe this policy is fully 
consistent with their authority under the ESA and is based on 
legislative history. Congress recognized in enacting the habitat 
conservation plan/incidental take provision in section 10 of the ESA 
that ``. . . the Secretary may utilize this provision [on HCPs] to 
approve conservation plans which provide long-term commitments 
regarding the conservation of listed as well as unlisted species and 
long-term assurances to the proponent of the conservation plan that the 
terms of the plan will be adhered to and that further mitigation 
requirements will only be imposed in accordance with the terms of the 
plan. In the event that an unlisted species addressed in an approved 
conservation plan is subsequently listed pursuant to the Act, no 
further mitigation requirements should be imposed if the conservation 
plan addressed the conservation of the species and its habitat as if 
the species were listed pursuant to the Act'' (H.R. Rep. No. 835, 97th 
Cong., 2d Sess. 30-31 (1982)). Accordingly, Federal regulation requires 
such procedures to be detailed in the HCP [50 CFR 17.22(b)(1)(iii)(C)].
    Moreover, as the discussion of the ``No Surprises'' policy in the 
final Handbook makes clear, the commitment by the Services in the 
policy is a commitment ``to the extent consistent with the requirements 
of the Endangered Species Act and other Federal laws,'' like the Anti-
Deficiency Act. However, the policy also makes clear that ``methods of 
responding to the needs of affected species [other than exacting 
additional mitigation from the permittees], such as government action 
and voluntary conservation measures by the permittee, remain available 
to assure the requirements of the ESA are satisfied.''
    Issue: Commenters stated that the Handbook does little to 
streamline the HCP process.
    Response: A summary of the streamlining measures and other 
improvements introduced in the revised HCP Handbook are identified in 
the following section of this notice.

Summary of Streamlining Measures

    The following is a summary of the streamlining measures and other 
improvements introduced in the revised HCP Handbook as a result of this 
review process. The final Handbook includes numerous reforms that are 
designed to:
    1. Provide clear guidance and standards for all aspects of the HCP 
program.
    2. Encourage flexibility in many procedural decisions to combine 
the HCP process, NEPA, and the ESA section 7 documents to the extent 
possible.
    3. Establish joint policies and procedures for FWS and NMFS.
    4. Establish a low-effect HCP category with expedited permit 
approval procedures for small-landowner and other low-impact projects. 
The new streamlined procedure would:
    a. Categorically exclude low-effect HCPs from NEPA requirements,
    b. Eliminate the requirement for Implementation Agreements for low-
effect HCPs, and
    c. Eliminate Solicitor review of low-effect permit applications.
    5. Establish specific time-frame targets for processing incidental 
take permit applications once the application is submitted for public 
comment and approval (less than 3 months for low-effect HCPs, 3-5 
months for HCPs with an Environmental Assessment, and less than 10 
months for HCPs with an Environmental Impact Statement).
    6. Encourage the integration of the HCP with the NEPA analysis and 
provide an example of a combined HCP/EA document.
    7. Make use of Implementing Agreements subject to Regional Director 
discretion for HCPs other than low-effect HCPs.
    8. Allow unlisted species to be named on the HCP permit (with a 
delayed effective date tied to date of any future listing) if 
adequately addressed in the HCP, eliminating the need for further 
paperwork processing to amend the permit if such a species is 
subsequently listed.
    9. Allow mitigation/monitoring activities resulting in take to be 
authorized under the HCP permit rather than a separate section 
10(a)(1)(A) scientific research permit.
    10. Require the integration of section 7/section 10 requirements 
early in the HCP process, and
    11. Increase coordination requirements between a Field Office and 
Regional Office during HCP negotiation and permit processing phases.
    Author/Editor: The editors of this document were Cindy Dohner, U.S. 
Fish and Wildlife Service, Division of Endangered Species, and Margaret 
Lorenz, Endangered Species, National Marine Fisheries Service (See 
ADDRESSES section).

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: November 1, 1996.
Jay L. Gerst,
Acting Director, Fish and Wildlife Service.

    Dated: November 22, 1996.
Gary Matlock,
Acting Deputy Assistant Administrator for Fisheries, National Marine 
Fisheries Service.
[FR Doc. 96-30610 Filed 11-29-96; 8:45 am]
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