[Federal Register Volume 64, Number 45 (Tuesday, March 9, 1999)]
[Notices]
[Pages 11485-11490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5737]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[Docket No. 981208299-8299-01]
RIN 1018-ZA03


Notice of Availability of a Draft Addendum to the 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; request for comments.

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SUMMARY: The Fish and Wildlife Service and National Marine Fisheries 
Service (the Services) are publishing for comment a Draft Addendum to 
the final Handbook for Habitat Conservation Planning and Incidental 
Take Permitting Process (5-point policy guidance), which is included 
entirely within this notice. The purpose of the Draft Addendum is to 
provide additional clarifying guidance to the Services for conducting 
the incidental take permit program under section 10(a)(1)(B) of the 
Endangered Species Act including developing habitat conservation plans 
(HCPs). It also provides clarifying guidance to those who are applying 
for an incidental take permit. We believe the draft guidance will 
promote efficiency and nationwide consistency within and between the 
Services and improve the HCP program.

DATES: The Services must receive comments on or before May 10, 1999. We 
must receive your comments by this date for them to be considered 
during preparation of a final Addendum.

ADDRESSES: Send written comments regarding this Draft Addendum to the 
Division of Endangered Species, U.S. Fish and Wildlife Service, 4401 
North Fairfax Drive, Room 452, Arlington, Virginia 22203 (facsimile 
703/358-1735); or to the Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, Maryland 
20910 (facsimile 301/713-0376). Comments received will be available for 
public inspection, by appointment, during normal business hours at the 
above addresses.

FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of 
Endangered Species, U.S. Fish and Wildlife Service, (telephone 703/358-
2171, facsimile 703/358-1735), or Kevin Collins, Chief, Endangered 
Species Division, National Marine Fisheries Service (telephone 301/713-
1401, facsimile 301/713-0376) at the above addresses.

SUPPLEMENTARY INFORMATION:

Background

    The Endangered Species Act (ESA) was amended in 1982 to allow the 
taking of listed species incidentally to an otherwise lawful activity 
by non-Federal entities such as states, counties, local governments, 
and private landowners (section 10(a)(1)(B)). To receive a permit, the 
applicant submits a conservation plan (also referred to as an HCP) that 
meets the criteria included in the ESA and its implementing regulations 
(50 CFR parts 17 and 222). The Services recently amended those 
regulations to include ``No Surprises'' assurances (February 23, 1998, 
63 FR 8859). To provide internal guidance on conducting the incidental 
take permit program, the Services developed the joint Handbook for 
Habitat Conservation Planning and Incidental Take Permitting Process 
(HCP Handbook), which was made available for public review and comment 
on December 21, 1994 (59 FR 65782) and issued in final form on December 
2, 1996 (61 FR 63854).
    In just a few years, the HCP program has been transformed from a 
relatively little-used approach under the ESA to one of its most 
important and innovative conservation programs. For example, in the 
first ten years of the program, the Services issued only 14 incidental 
take permits. However, by September 30, 1998, the Services had issued 
243 incidental take permits, and approximately 200 HCPs are currently 
under development.
    The section 10 incidental take process provides the Services an 
opportunity to negotiate with and provide technical assistance to 
applicants as they develop HCPs. Also, it provides the flexibility the 
Services and applicants need to resolve issues between economic 
development and species conservation. The Services continue to learn 
from the HCP program which we believe has resulted in stronger HCPs 
that help ensure species conservation. Based on comments received from 
the public through a variety of ways (workshops, meetings, training 
sessions, scientific studies, participation in the development and 
implementation of HCPs, and during comment periods on various ESA 
regulations and policies) as well as deliberations within the Services, 
we announced, on February 17, 1998, our intention to provide a draft 5-
point policy initiative for public review and comment. The 5-points 
addressed herein as the Draft Addendum are (1) biological goals and 
objectives, (2) adaptive management, (3) monitoring, (4) permit 
duration, and (5) public participation.

Addendum To the HCP Handbook

    The Services intend to incorporate the 5-point policy initiative 
into the HCP Handbook as an addendum that will provide additional 
guidance on implementing the incidental take permit provisions of 
section 10(a)(1)(B) of the ESA. The five sections (or 5-points) of the 
Draft Addendum are contained entirely within this notice. Some of this 
guidance is derived from approaches we currently apply to the HCP 
process. In particular, we will use this guidance to establish overall 
biological goals for species covered by HCPs, to clarify and expand the 
use of adaptive management, monitoring, and to provide criteria to be 
considered by the Services in determining incidental take permit 
duration, and to expand the use of public participation. Nothing in 
this guidance is intended to supersede or alter any aspect of Federal 
law or regulation pertaining to the conservation of threatened or 
endangered species.

Biological Goals and Objectives

    An approved incidental take permit and associated HCP authorizes 
incidental take of the covered species while meeting the issuance 
criteria in section 10(a)(2)(B) of the ESA. They ensure that the 
permittee will minimize and mitigate the effects of the authorized 
incidental take to the maximum extent practicable through an HCP's 
operating conservation program. An operating conservation program 
consists of the management activities undertaken when implementing an 
approved HCP to minimize and mitigate the effects of the activity on 
the covered species. The biological outcome of the operating 
conservation program for the covered species is the best measure of the 
success of an HCP. The best HCPs clearly define the desired outcome for 
the covered species and their habitats in terms of biological goals and 
objectives.
    Although identifying biological goals and objectives was discussed 
in the HCP Handbook, the Services did not require HCPs to specifically 
identify biological goals and objectives. However, most HCPs had 
implied biological goals and objectives, and many recent HCPs include 
explicit biological goals and/or objectives. In the future, every HCP 
will include specific biological goals and objectives. Pursuant to the 
underlying

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statutory and regulatory authorities, the Services will work with the 
applicant to derive the biological goals and objectives by examining 
the applicant's proposed action and the overall conservation needs of 
the covered species and/or its habitat.
    Biological goals are the broad guiding principles for the operating 
conservation program; they are the rationale behind the minimization 
and mitigation strategies. Specific biological objectives are subsets 
of the biological goals and represent specific measurable targets for 
achieving the goals of the operating conservation program. Thus 
biological goals and objectives can be stated in a step-down approach 
based on the best scientific information available and reflect the 
conservation needs of the covered species. However, not all HCPs are 
likely to need complex, multi-tiered biological goals and objectives. 
The biological goals and objectives should be commensurate with the 
specific impacts and duration of the HCP applicant's proposed action. 
For example, low-effect HCPs generally have simple measurable 
biological objectives (e.g., preserving a minimum number of forage 
trees on the property) and include a relatively simple operating 
conservation program and monitoring protocol.
    Determination of the biological goals and objectives is integral to 
the development of the operating conservation program. Conservation 
measures identified in an HCP, its accompanying incidental take permit, 
and/or IA provide the means for achieving the biological goals and 
objectives. For example, the overall biological goal could be to ensure 
population viability by maintaining habitat contiguity. The specific 
measurable objective to achieve this goal may be to conserve an 
adequate number of acres of habitat in a certain configuration, so that 
a viable corridor is maintained. The conservation measures could 
specify the number of acres and configuration. If the size and 
configuration were not determinable, an adaptive management strategy 
could be used, and the HCP, permit, and/or IA could list a series of 
incremental steps to be taken within an agreed upon range of management 
adjustments for determining and securing a viable corridor.
    Available literature, State conservation strategies, candidate 
conservation plans, draft or final recovery plans or outlines, and 
other sources of relevant scientific and commercial information can 
serve as guides in setting biological goals and objectives. Species 
experts, State wildlife agencies, recovery teams, and/or scientific 
advisory committees may also help develop the biological goals and 
objectives. The biological goals and objectives may be either habitat 
or species based. More complex multispecies and/or regional HCPs may 
need an integration of habitat and species-specific goals and 
objectives. Although the goals and objectives may be stated in habitat 
terms, each covered species that falls under that goal or objective 
must be clearly specified. Regardless of the type of goal and objective 
used, the Services will ensure that the biological goals are consistent 
with conservation actions needed to adequately minimize and mitigate 
impacts to the covered species to the maximum extent practicable.
    Explicit biological goals and measurable objectives provide clear 
guidance for both the applicant and the Service as to the purpose and 
direction of the HCP's operating conservation program. They create 
parameters and benchmarks for developing conservation measures, provide 
the rationale behind the HCP's terms and conditions, promote an 
effective monitoring program, and help determine the focus of an 
adaptive management strategy, if appropriate. The operating 
conservation program will include those measurable actions that, when 
implemented, are anticipated to meet the biological objectives. 
Implementing the operating conservation program is the extent of the 
permittee's obligation for meeting the biological goals and objectives.

Adaptive Management

    Adaptive management strategies can assist the Services and the 
applicant in developing an adequate operating conservation program and 
improving its effectiveness. In the HCP program, adaptive management is 
used to examine alternative strategies for meeting measurable 
biological goals and objectives through research and/or monitoring, and 
then, if necessary, to adjust future conservation management actions 
according to what is learned.
    Not all HCPs or all species covered in an incidental take permit 
need an adaptive management strategy. However, an adaptive management 
strategy is essential for permits that cover species that have 
significant biological data or information gaps that incur a 
significant risk to that species at the time the permit is issued. 
Possible significant data gaps that could lead to the development of an 
adaptive management strategy include, but are not limited to, 
significant biological uncertainty about specific information about the 
ecology of the species or its habitat (e.g., food preferences, relative 
importance of predators, territory size), habitat or species management 
techniques, or the degree of potential effects of the activity on the 
species covered in the incidental take permit. However, there may be 
some circumstances with such a high degree of uncertainty that a 
species should not receive coverage in an incidental take permit at all 
until additional research is conducted. If an adaptive management 
strategy is used, the approved HCP must outline the agreed upon future 
changes to the operating conservation program.
    Habitat Conservation Plan assurances (No Surprises) and the use of 
adaptive management strategies are compatible. The assurances apply 
once all appropriate HCP provisions have been mutually crafted and 
agreed upon and approved by the Services and the applicant. Adaptive 
management strategies, if used, are part of those provisions, and their 
implementation becomes part of a properly implemented conservation 
plan. When an HCP, permit, and IA incorporate an adaptive management 
strategy, it should clearly state the agreed upon and warranted range 
of possible operating conservation program adjustments due to 
significant new information, risk, or uncertainty. During HCP 
negotiations, the Services and the applicant should determine the range 
of acceptable and anticipated management adjustments necessary to 
respond to new information after the permit is issued and describe this 
procedure in the HCP, permit, or IA. This process will enable the 
applicant to assess the potential economic impacts of adjustments 
before agreeing to the HCP.
    Often, there is a direct relationship between the level of 
biological uncertainty for a covered species and the degree of risk 
that an incidental take permit could pose for that species. Therefore, 
the operating conservation program may need to be relatively cautious 
initially and adjusted later based on new information. A practical 
adaptive management strategy within the operating conservation program 
of a long-term incidental take permit will include milestones that are 
reviewed at scheduled intervals during the lifetime of the incidental 
take permit and permitted action. If there is a relatively high degree 
of risk, milestones and adjustments may need to occur early and often.
    For an adaptive management strategy to be effective, it must be 
integrated into a monitoring program that is designed to ensure proper 
data collection and analysis that can guide appropriate adjustments in 
the operating conservation program. For example, a

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habitat management objective may be defined as recruiting 95 percent 
large woody debris into streams to achieve the biological goal of 
maintaining properly functioning riparian habitat. The operating 
conservation program could include a range of possible buffers to 
achieve the biological objectives. The monitoring program would include 
measuring the amount of woody debris in streams. If the results from 
the monitoring program indicated that the 95-percent objective was not 
being achieved, then a change from one buffer to another might be 
warranted. However, the original agreed upon range of possible 
management adjustments, as identified in the HCP, incidental take 
permit, or IA, would need to have included the new buffer. The design 
of the adaptive management strategy and the monitoring program includes 
the type(s) of information needed and the triggers to institute changes 
in the width of the buffer.
    If existing ecological data is insufficient to determine the method 
needed to achieve a biological objective, adaptive management 
strategies can be used to meet objectives by obtaining information on 
the species and its ecology through ongoing research, recovery 
planning, and conservation planning by Federal, State, and local 
agencies. For example, the Natomas Basin HCP in California has an 
adaptive management strategy that incorporates ongoing research. At 
this time, the U.S. Geological Survey's Biological Resources Division 
is conducting a study to determine the giant garter snake's population 
biology and habitat use. If additional information from the study 
suggests a different approach is appropriate to meet the conservation 
needs of the snake, the preserve location(s) could be modified and the 
habitat type emphasized in the restoration could be changed within the 
terms of the adaptive management strategy of the HCP's operating 
conservation program.
    If the full range of effects of a proposed project is unknown at 
the time of HCP negotiation, a monitoring program combined with an 
adaptive management strategy could determine the actual extent of 
effects and then allow for agreed upon shifts in management strategies. 
A key element of adaptive management is to establish the information 
needs and link them to the management strategies and their objectives. 
For example, a study to determine the specific effects of grazing on a 
butterfly, based on a range of possible grazing pressures, could help 
establish a long-term management strategy. The HCP's adaptive 
management strategy could outline the potential range of grazing 
management regimes, but since the extent of the butterfly's tolerance 
of grazing may be initially unknown, the operating conservation program 
could start with a more cautious grazing regime and be subject to 
subsequent relaxation, if appropriate. The particular aspects of the 
grazing regime could subsequently shift or relax, depending on the 
results of the study.
    Where specific methodologies (e.g., translocation) or strategies 
have not been thoroughly tested, an adaptive management strategy can 
investigate different management tools to determine the best approach. 
In Utah, the Washington County HCP includes a five-year desert tortoise 
translocation study. Translocation of desert tortoises from areas to be 
developed is an action to minimize, not mitigate, take of desert 
tortoises in the HCP. Depending on the recovery unit, translocation may 
prove to be a useful tool for desert tortoise recovery in the future. 
Healthy desert tortoises found within areas to be developed are 
translocated to designated areas. The effects of that translocation on 
the biology of the tortoises, including health status, weight gain, 
reproduction, and behavior, are being monitored. If the tortoises 
successfully adapt to the new location, then translocation may continue 
in an isolated and currently unoccupied portion of the HCP reserve 
area. Information gained on the efficacy of translocation as a 
management technique, and on habitat requirements of desert tortoises 
(vegetation, elevation, etc.) can subsequently be used to adjust 
management in this and other HCPs in the range of the species.
    HCPs may be designed to provide flexibility other than through the 
use of adaptive management. The permittee or another responsible party 
may need the flexibility, under different circumstances, to employ 
alternative methods or strategies within the operating conservation 
program to achieve the biological goals and objectives. This 
flexibility also allows previously agreed upon management and/or 
mitigation actions to be implemented as needed in response to changed 
circumstances. The HCP, incidental take permit, and IA, if any, 
describes the range of management and/or mitigation actions and the 
process by which the management and funding decisions are made and 
implemented.

Monitoring

    Monitoring is a mandatory element of all HCPs (See 50 CFR 
17.22(b)(1), 17.32(b)(1), and 222.22). When properly designed and 
implemented, monitoring programs for HCPs should obtain the information 
necessary to assess compliance, project impacts, and to verify progress 
toward the agreed upon biological goals and objectives. Monitoring also 
provides the scientific data necessary to evaluate the success of the 
HCP's operating conservation programs with respect to the development 
of strategies in future HCPs or other programs that contribute to the 
conservation of species and their habitat. The HCP Handbook already 
provides guidance for developing monitoring measures (Chapter 3, 
section B.4.) and discusses reporting requirements (Chapter 6, section 
E.4.). The following information further clarifies and provides 
additional guidance for the monitoring component of an HCP, permit, 
and/or IA.
Scope of Monitoring
    The Services and the applicant must ensure that the monitoring 
program provides information to: (1) evaluate compliance; (2) determine 
if biological goals and objectives are being met; and (3) provide 
feedback to an adaptive management strategy, if used. Biological 
objectives provide a framework for developing a monitoring program that 
measures progress toward meeting those biological objectives. If an 
HCP, permit, and/or IA has an adaptive management strategy, it is 
crucial to integrate the monitoring program into this strategy in order 
to guide any necessary changes in management.
    When an applicant and the Services design a monitoring program, the 
scope of the monitoring measures should be commensurate with the scope 
and duration of the operating conservation program and project impacts. 
Some programs may be simple, while those for large-scale or regional 
planning efforts may be comprehensive and track more than one component 
of the HCP (e.g., habitat quality, collection of mitigation fees). The 
HCP, permit, and/or IA should also tier the monitoring program to 
reflect the structure of the biological goals and objectives. The 
following components are essential for most monitoring protocols (the 
size and scope of the HCP will dictate the actual level of detail in 
each item): (1) the implementation and effectiveness of the HCP terms 
and conditions (e.g., financial responsibilities and obligations, 
management responsibilities, and other aspects of the incidental take 
permit, HCP, and the IA, if applicable); (2) the level of incidental 
take of the covered species; (3) the biological conditions resulting 
from the operating conservation program (e.g.,

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change in the species' status or a change in the habitat conditions); 
and (4) any informational needs of an adaptive management strategy, if 
utilized. An effective monitoring program is flexible enough to allow 
modifications, if necessary, to obtain the appropriate information.
    In order to obtain meaningful information, the applicant and the 
Services should structure the monitoring methods and standards so that 
the results from one reporting period and area to another are 
comparable, and the monitoring protocol responds to the question(s) 
asked. Credible monitored units should reflect the biological 
objective's measurable units (e.g., if the biological objective is in 
terms of numbers of individuals, the monitoring program should measure 
the number of individuals). The monitoring program will be based on 
sound science and standard survey or other monitoring protocols 
previously established should be used. Although the specific methods 
used to gather necessary data may differ depending on the species and 
habitat types, monitoring programs should use a multispecies approach 
when appropriate.
    HCP monitoring should consist of two types. The first is compliance 
monitoring, where the Services monitor the permittee's implementation 
of the requirements of the HCP, incidental take permit terms and 
conditions, and IA, if applicable. The second is effects and 
effectiveness monitoring where the permittee (or other designated 
entity) examines the impacts of the authorized incidental take 
(effects) and implementation of the operating conservation program to 
determine if the actions are producing the desired results 
(effectiveness). To monitor all aspects of an HCP effectively, and to 
ensure its ultimate success, the entire monitoring program should 
incorporate both types of monitoring. The monitoring program should 
also clearly designate who is responsible for the various aspects of 
monitoring.
Compliance Monitoring
    Compliance monitoring is necessary for the Services to ensure that 
the permittee is meeting the terms and conditions of the HCP, its 
accompanying incidental take permit, and IA, if any. Therefore, the 
Services verify adherence to the terms and conditions of the incidental 
take permit, HCP, IA, and any other related agreements, and will ensure 
that incidental take of the covered species does not exceed the level 
authorized under the incidental take permit. FWS and NMFS regulations, 
50 CFR 13.45 and 50 CFR 220.45, respectively, provide the authority for 
the Services to require annual compliance reports unless otherwise 
specified by the incidental take permit. Also, the Services will ensure 
that the reporting requirements are tailored to assist the Services 
with monitoring incidental take permit compliance (e.g., documentation 
of habitat acquisition, use of photographs). These reports help 
determine whether the permittee is properly implementing the terms and 
conditions of the HCP, its incidental take permit, and any IA, and will 
provide a long-term administrative record documenting progress made 
under the incidental take permit.
    In addition to reviewing reports submitted by the permittee, it is 
important for the Services to make field visits to verify whether the 
report data are correct and the HCP is being implemented as negotiated. 
These visits allow the Services to check for information, identify 
unanticipated deficiencies or benefits, develop closer cooperative ties 
with the permittee, help prevent accidental violations of the 
incidental take permit's terms and conditions, and assist the permittee 
and Services in developing corrective actions when necessary.
    The Services must track HCP implementation and the monitoring 
programs. The Services' National and Regional Offices will develop a 
database to track incidental take permit issuance and compliance. The 
following standard fields should be included in each database to 
maintain consistency throughout the Nation:
    1. The permittee's name;
    2. The incidental take permit number;
    3. The incidental take permit duration;
    4. The amount of authorized take;
    5. The location of permitted action and mitigation;
    6. The amount of area covered;
    7. The species and habitat covered; and
    8. The nature of the permitted activity.
    Some suggested additional fields in the databases include:
    1. A brief summary of the monitoring program;
    2. The reporting frequency and the dates reports are due, received, 
and reviewed;
    3. The nature and effect of the incidental take; and
    4. A brief description of the status of the operating conservation 
program.
    Individual Regional Offices may choose to expand the databases to 
add fields specific to the HCPs in their region, especially for 
tracking cumulative effects for future HCP analyses. For example, the 
database may also record and schedule periodic audits of the HCP and 
field visits. The databases should allow the Services to generate 
monthly and quarterly lists identifying the completion and due dates 
for operating conservation program or other HCP actions. This will help 
the Services initiate the required review and analysis needed for the 
monitoring program associated with each HCP.
    For large-scale and/or regional HCPs, oversight committees, made up 
of representatives from significantly affected entities (e.g., State 
Fish and Wildlife agencies), are often used to ensure proper and 
periodic review of the monitoring program, and to ensure that each 
program complies with the terms and conditions of the incidental take 
permit. For example, the proponents of the Karner blue butterfly HCP in 
Wisconsin are proposing an auditing approach to insure incidental take 
permit compliance. The lead applicant, Wisconsin Department of Natural 
Resources, will initially conduct annual on-site audits of each 
partner. FWS will audit the Wisconsin Department of Natural Resources 
in a similar fashion. In addition, FWS will accompany the Wisconsin 
Department of Natural Resources on the partner audits as appropriate to 
understand partner compliance levels. Over time, Wisconsin Department 
of Natural Resources will conduct the audits less frequently, if 
performance levels are acceptable. Each partner will provide an annual 
monitoring report and will submit these along with their audit report 
to FWS annually.
    Oversight committees should periodically evaluate the permittee's 
compliance with the HCP, its incidental take permit, and IA, and the 
success of the operating conservation program in reaching its 
identified biological goals and objectives. Such committees usually 
include species experts and representatives of the permittee, the 
Service, and other affected agencies and entities. It may also be 
beneficial to submit the committee's findings to recognized experts in 
pertinent fields (e.g., conservation biologists, restoration 
specialists, etc.) for review or to have technical experts conduct 
field investigations to assess implementation of the terms and 
conditions. Because the formation of these committees may be subject to 
the Federal Advisory Committee Act (FACA), the role of the participants 
and the purpose of the meetings must be clearly identified. FACA 
requirements will be adhered to,

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where appropriate. Oversight committees should meet at least annually 
and review implementation of the monitoring program and filing of 
reports as defined in the HCP, permit, and/or IA.
Monitoring the Effects and Effectiveness of the HCP
    Effects and effectiveness monitoring determine if the anticipated 
impacts from the permitted project are occurring (effects) and progress 
toward the biological goals and objectives of the HCP (e.g., if the 
conservation strategies are producing the desired habitat conditions or 
population numbers) (effectiveness). The Services should incorporate 
provisions for monitoring the effects and effectiveness of the HCP 
during HCP development. Effects and effectiveness monitoring may also 
involve assessing threats and population trends of the covered species 
as it relates to the permitted activities, as well as monitoring the 
development of targeted habitat conditions. The Services should strive 
to collect information that will help detect cumulative trends in 
covered species populations or changes in the quality and/or quantity 
of the habitat (e.g., restoration of the streamside riparian area).
    Monitoring programs will vary based on whether they are for low-
effect or for regional, multispecies HCPs; however, the general 
elements of each program are similar. Post-activity or post-
construction monitoring, along with a single report at the end of the 
monitoring period, will often satisfy the monitoring requirements for 
low-effect HCPs. For other HCPs, monitoring programs will be more 
comprehensive and may include milestones, timelines, and/or trigger 
points for change. Effects and effectiveness monitoring will generally 
include, but are not limited to, the following:
    1. Periodic accounting of authorized incidental take;
    2. Surveys to determine species status, appropriately measured for 
the particular operating conservation program (e.g., presence, density, 
or reproductive rates);
    3. Assessments of habitat condition;
    4. Progress reports on fulfillment of the operating conservation 
program (e.g., habitat acres acquired and/or restored); and
    5. Evaluations of the operating conservation program and its 
progress toward its intended biological goals.
    The Services and the HCP permittee cooperatively develop the 
effects and effectiveness monitoring program and determine 
responsibility for its various components. In multi-party HCPs, 
different parties may monitor different aspects of the HCP. The 
Services must periodically review any monitoring program to confirm 
that it is conducted according to their standards.
Monitoring Reports
    The Services will streamline the reporting requirements for 
monitoring program by requesting all reports in a single document. The 
HCP, permit, or IA should specifically state the level of detail and 
quantification needed in the monitoring report and tailor report due 
dates to the activities conducted under the incidental take permit 
(e.g., due at the end of a particular stage of the project or the 
anniversary date of incidental take permit issuance). Most monitoring 
programs require reports annually, usually due on the anniversary date 
of incidental take permit issuance. Wherever possible, the Services 
will coordinate the due dates with other reporting requirements (e.g., 
State reports) so the permittee can satisfy more than one reporting 
requirement with a single report. The following represents the minimum 
information frequently needed in a monitoring program and its reports:
    1. Objectives for the monitoring program;
    2. Effects on the covered species and/or habitat;
    3. Location of sampling sites;
    4. Methods for data collection and variables measured;
    5. Frequency, timing, and duration of sampling for the variables;
    6. Description of the data analysis and who conducted the analyses; 
and
    7. Evaluation of progress toward achieving measurable biological 
goals and objectives and other terms and conditions as required by the 
incidental take permit and/or IA.
    These elements may be simplified for periods of no activity or low-
effect HCPs. If a required report is not submitted by the date 
specified in the HCP or incidental take permit terms and conditions, or 
is inadequate, the Services will notify the permittee. The Services 
have discretion to offer the permittee an extension of time to 
demonstrate compliance. The Services have examined this reporting 
guidance under the Paperwork Reduction Act of 1995 and found that it 
does not contain requests for additional information or an increase in 
the collection requirements other than those already approved for 
incidental take permits (OMB approval for FWS #1018-0094; for NMFS # 
0648-0230).
Funding Monitoring Programs
    The ESA and the section 10 regulations require that HCPs specify 
the measures the permittee will adopt to ensure adequate funding for 
the HCP. An HCP that does not contain an adequate funding commitment 
from the applicant/permittee to support an acceptable monitoring 
program should not be approved unless the HCP establishes alternative 
funding mechanisms. The Services and the applicant should work together 
to develop the monitoring program, and determine who will be 
responsible for monitoring the various components of the HCP. Specific 
monitoring tasks may be assigned to entities other than the permittee 
(e.g., State or Tribal agencies) as long as the Services and parties 
responsible for implementing the HCP approve of the monitoring 
assignment. The terms of the HCP, incidental take permit, and IA may 
contain funding mechanisms that provide for a public (e.g., local, 
State, or Federal) or a private entity to conduct all or portions of 
the monitoring. This funding mechanism must be agreed upon by the 
Services and the parties responsible for implementing the HCP.

Permit Duration

    Both FWS and NMFS regulations for incidental take permits outline 
factors to consider when determining incidental take permit duration 
(50 CFR 17.32 and 222.22). These factors include duration of the 
applicant's proposed activities and the expected positive and negative 
effects on covered species associated with the proposed duration 
including the extent to which the operating conservation program will 
increase the survivability of the listed species and/or enhance its 
habitat. In determining the duration of an incidental take permit, the 
Services will also consider the extent of scientific and commercial 
data underlying the proposed operating conservation program for the 
HCP, the length of time necessary to implement and achieve the benefits 
of the operating conservation program, and the extent to which the 
program incorporates adaptive management strategies.
    To date, the Services have issued more than 200 incidental take 
permits, varying in duration from one to 99 years. The average duration 
of incidental take permits issued is 25 years; pending applications for 
incidental take permits currently have an average requested duration of 
30 years. The Services allow a range in incidental take permit duration 
to account for both the varying biological impacts resulting from the 
proposed

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activity (e.g., variations in the length of timber rotations and 
treatments versus a real estate subdivision build out), and the nature 
or scope of the permitted activity and operating conservation program 
addressed in the HCP, permit, and/or IA (e.g., housing or commercial 
developments versus long-term sustainable forestry; conservation 
easements). Though not always applicable, small-scale HCPs are likely 
to have short-term incidental take permits, whereas large-scale HCPs 
are likely to have longer term incidental take permits because of the 
time required to implement their operating conservation program and the 
permittee's need for long-term assurances. Longer permits may also 
ensure long-term commitments to the operating conservation program.

Public Participation

    The Services intend to expand public participation in the HCP 
process to provide greater opportunity for the public to assess, 
review, and analyze HCPs and associated documents (e.g., National 
Environmental Policy Act (NEPA) documents). As stated in the HCP 
Handbook in Chapter 6.B, the Services currently require a minimum 30-
day public comment period for all HCP applications. However, the 
Services recognize the concern of the public regarding an inadequate 
time for the public comment period, especially for large-scale HCPs. 
Therefore, the Services propose to expand the current comment period to 
provide a 60-day public comment period for most HCPs. The exceptions to 
a 60-day comment period would be those for low-effect HCPs and large 
scale regional, or exceptionally complex HCPs. The Services believe the 
current 30-day public comment period provides enough time to review 
low-effect HCPs, which have a categorical exclusion from NEPA.
    For large-scale, regional, or exceptionally complex HCPs, the 
Services intend to expand the use of informational meetings and/or 
advisory committees. In addition, the minimum comment period for these 
HCPs is proposed to be 90 days, unless significant public participation 
occurs during HCP development. With the extension of the public comment 
periods, the recommended timeline targets for processing incidental 
take permits are extended accordingly: The timeline to complete low 
effect HCPs will remain up to three months; HCPs with an Environmental 
Assessment (EA) will be four to six months; and HCPs with a 90-day 
comment period and/or an Environmental Impact Statement (EIS) may be up 
to 12 months.
    During the public comment period, any member of the public may 
review and comment on the HCP and the accompanying NEPA document, if 
applicable. If an EIS is required, the public can also participate 
during the scoping process. When practicable, the Services will seek to 
announce the availability of HCPs in electronic format and in local 
newspapers of general circulation. The Services will encourage 
potential applicants to allow for public participation during the 
development of an HCP, particularly if non-Federal public agencies 
(e.g., State Fish and Wildlife agencies) are involved. Although the 
development of an HCP is the applicant's responsibility, the Services 
will encourage applicants for most large-scale, regional HCP efforts to 
provide extensive opportunities for public involvement during the 
planning and implementation process.
    The Services recommend that applicants include Native American 
tribes during the development of the HCP if tribal resources may be 
affected. If an applicant chooses not to consult with Tribes, the 
Services, under the Secretarial Order on Federal-Tribal trust 
responsibilities and ESA, will consult with the affected Tribes to 
evaluate the effects of the proposed HCP on Tribal trust resources and 
will provide the information resulting from such consultation to the 
HCP applicant prior to the submission of the draft HCP for public 
comment, and will advocate the incorporation of measures that will 
restore or enhance Tribal trust resources. After consultation with the 
tribes and the non-federal landowner and after careful consideration of 
the tribe's concerns, the Services will clearly state the rationale for 
the recommended final decision and explain how the decision relates to 
the Services' trust responsibility.

Public Comments Solicited

    The Services will issue a final Addendum to the HCP Handbook based 
upon consideration of information and recommendations received from all 
interested parties. Therefore, the Services are soliciting comments, 
recommendations, or suggestions from the public, other concerned 
government agencies, the scientific community, industry, or any other 
interested party about this Draft Addendum.

Authority

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

    Dated: November 2, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.

    Dated: January 28, 1999.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-5737 Filed 3-8-99; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P