Habitat Conservation Planning and Incidental Take Permit Processing Handbook

2016 Joint U.S. Fish and Wildlife Service and National Marine Fisheries
Service Habitat Conservation Planning Handbook Questions and Answers
How will the revised Joint U.S. Fish and Wildlife Service and National Marine Fisheries
Service (Services) Habitat Conservation Planning Handbook (HCP Handbook) affect
existing HCPs or those in development?
For existing plans, the revised Handbook should not have any impact provided that the incidental
take permit is in compliance. For those HCPs under development, it will depend upon how close
the HCP is to completion. Contact your local Ecological Services Field Office for additional
guidance pertaining to your specific project.
On what date was the Final HCP Handbook made publically available?
It was made publically available in the Federal Register on December 21, 2016.
Is the HCP Handbook guidance or policy?
The HCP Handbook is guidance for Services staff, but it explains how to apply the policies and
regulations that govern section 10(a)(1)(B) of the Endangered Species Act.
Will a similar HCP Handbook be developed for HCP applicants?
The HCP Handbook is designed to guide Services staff in our efforts to assist applicants with
developing HCPs and processing incidental take permit applications. At this time, there are no
plans to develop a separate handbook for applicants. While the HCP Handbook provides
information that applications will find relevant, we recommend applicants contact their local
Ecological Services Field Office to request technical assistance from HCP staff to assist with
development of their HCP.
Will hard copies of the HCP Handbook be made available?
In our efforts to conserve natural resources and minimize costs, the HCP Handbook will not be
formally printed or distributed. However, it can found online at
https://www.fws.gov/endangered/what-we-do/hcp_handbook-chapters.html.
Is the 5-Point Policy still in effect?
The revised 2016 HCP Handbook supersedes the 5-Point Policy as it was fully incorporated into
the HCP Handbook revision. The only exception is the public comment periods, which were
aligned to be consistent with Council on Environmental Quality’s (CEQ) National
Environmental Policy (NEPA) Guidance.

How does the new HCP Handbook address low-effect HCPs?
To allow more projects to qualify, the low-effect screening form now allows for the
consideration of minimization and mitigation measures in the significance analysis.
How do the U.S. Fish and Wildlife Service’s Mitigation and Compensatory Mitigation
Policies intersect with HCPs?
U.S. Fish and Wildlife Service staff will use the mitigation policies to guide what mitigation
recommendations are provided to applicants. However, U.S. Fish and Wildlife Service decisions
are based on the regulations and the incidental take permit issuance criteria that define the
mitigation standard for the HCP program. The National Marine Fisheries Service has not
developed similar mitigation guidance to date.
Can the public access everything in the HCP Toolbox, such as USFWS’ Environmental
Conservation Online System (ECOS)?
Although much of the information in the HCP Handbook Toolbox is publically available, there
are databases that are only available to Services staff, including portions of ECOS. However,
information generated from these databases can be shared with the applicant and made available
to public through the appropriate mechanisms. It is important to keep in mind that the HCP
Handbook was developed for Services staff.
Why does the HCP Handbook focus so much on landscape scale HCPs?
One of the goals of the HCP Handbook was to provide a compressive guide to developing HCPs,
regardless of the scale. Each element and step of the HCP Handbook is typically necessary for
any HCP. The difference may be the level of detail. Think of the Handbook as a pantry; it
contains all the necessary ingredients to develop a successful HCP, but the specific ingredients
and the amount will be tailored to meet the applicant’s project needs. U.S. Fish and Wildlife
Service staff can help you to identify what is and is not necessary for your particular project.
Are the Services expecting applicants to recover species?
Under the Endangered Species Act, the Services, not applicants, are required to help recover
listed species. The Services should ensure the applicant’s HCP does not undermine the potential
recovery of the species and includes a conservation strategy that helps to contribute to species
recovery.
What are some of the changes to the new HCP Handbook as compared to the 1996 HCP
Handbook?



Reorganization of the HCP Handbook to follow the HCP process.
Encourages concurrent development of National Environmental Policy Act (NEPA) and
National Historic Preservation Act compliance documents, as well as, intraservice section
7 consultation as early in the HCP process as reasonable to streamline the process.










Discourages the combination of HCP and NEPA documents to clearly define the
responsibilities of the applicant and Services.
Discourages the use of Implementing Agreements. Instead, these agreements should be
incorporated into the HCP or incidental take permit.
Incorporates the consideration of climate change effects throughout the planning process.
Incorporates the Five-Point Policy, except the public comment period timeframes were
changed to align with CEQ’s NEPA Guidelines: 30 days for low-effects and
Environmental Assessments, and 60 days for Environmental Impact Statements.
Revises the low-effect screening form to allow consideration of minimization and
mitigation measures.
Provides detailed guidance for providing adequate funding assurances.
Provides guidance for compliance with the National Historic Preservation Act.
Provides an online HCP Handbook Tool Box.

OMB Control No. 1018-0094
Exp. ##/##/####

HABITAT CONSERVATION PLANNING
AND
INCIDENTAL TAKE PERMIT PROCESSING
HANDBOOK

December 21, 2016
U.S. Department of the Interior
Fish and Wildlife Service
U.S. Department of Commerce
National Oceanic and Atmospheric Administration
National Marine Fisheries Service

Executive Summary
Drawing on over 30 years of experiences, remarkable successes, and valuable lessons learned,
the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)
(hereafter “Services”) are pleased to share with you this revised Habitat Conservation Planning
(HCP) Handbook (Handbook). The revised Handbook is the culmination of hard work and
dedication by Services staff. It reflects our common commitment to actively advance the
congressional findings, purpose, and policies of the Endangered Species Act (ESA), including
providing a means to foster relationships with public and private partners, reduce conflicts
between listed species and economic activities, and promote long-term conservation of listed
species and the ecosystems on which they depend.
Since the original HCP Handbook was published in 1996 (61 FR 63854), over 1,000 HCPs
covering more than 46 million acres of land have been approved nationwide. During that time,
the development and implementation of HCPs has evolved in response to advances in science
and technology, changing public expectations, and feedback from our partners. For example,
advances in computer technology and geospatial sciences have dramatically improved the way
we view and understand species, habitat, and their connection to the larger landscape. In
addition, the human dimension of the HCP process has become more complex with changes in
public perceptions and expectations. Our experiences and input from our partners has highlighted
concerns about the complexity, cost, and time commitment required to develop HCPs.
We addressed these opportunities and concerns by establishing process standards and best
practices, and also through updated and refined policy guidance and procedures. These
refinements are meant to streamline the HCP process and increase the overall effectiveness of the
program. The revised Handbook is designed to be more user-friendly and applicable in both print
and web media. We reorganized the Handbook’s contents to reflect each phase of the HCP
process and include tools and templates to help us complete them. We clarified important
concepts like maximum extent practicable, adaptive management, and changed and unforeseen
circumstances, and refined our guidance on compliance with other Federal laws and regulations.
We also established guidance for addressing climate change, effective communication and
coordination with stakeholders, and reaffirmed our commitment to integrity, respect, and
teamwork in our HCP partnerships.
A combination of innovation, flexibility, and clear direction for implementing the HCP program
will ensure this Handbook is a viable and powerful tool for conservation and contribute to the
recovery of threatened and endangered species. We expect the HCP program to continue to
evolve and adapt to future ecological, societal, and economic changes, and we expect the
Handbook to do so as well.
Finally, while the purpose of the revised Handbook remains to serve as an instructional aid for
Services staff, it should be equally helpful to other HCP practitioners, such as applicants,
consultants, and partners. The knowledge gained from experiences and lessons learned are
essential to making the HCP process more efficient and manageable in the future.

i

Habitat Conservation Planning Handbook
Table of Contents
Executive Summary ........................................................................................ i
List of Acronyms ............................................................................................ ii
Chapter 1: Introduction
1.1
1.2

1.3

1.4

Purpose of the HCP Program ........................................................................... 1-1
Evolution of the HCP Program ........................................................................ 1-3
1.2.1 Added Regulations and Policies .............................................................. 1-3
1.2.2 Successes of the HCP Program ............................................................... 1-4
1.2.3 Lessons Learned....................................................................................... 1-5
Laws and Other Requirements Related to the HCP Program ...................... 1-6
1.3.1 Relationship and Hierarchy ..................................................................... 1-6
1.3.2 Endangered Species Act ........................................................................... 1-7
1.3.3 National Environmental Policy Act ....................................................... 1-10
1.3.4 National Historic Preservation Act ....................................................... 1-10
1.3.5 Administrative Procedure Act ................................................................ 1-11
1.3.6 Tribal Consultation and the ESA ........................................................... 1-11
1.3.7 Other Related Process Laws .................................................................. 1-12
1.3.8 A List of Related Natural Resource Laws .............................................. 1-12
How to Use the HCP Handbook ..................................................................... 1-13
1.4.1 Purpose of the Handbook....................................................................... 1-13
1.4.2 Organization of the Handbook............................................................... 1-13
1.4.3 Tips for Using the HCP Handbook ........................................................ 1-14

Chapter 2: Overview of the HCP Planning Process
2.1
2.2

2.3
2.4
2.5

Phases of HCP Planning .................................................................................... 2-1
Considerations for Successful HCP Planning ................................................. 2-3
2.2.1 Understanding the Regulations................................................................ 2-3
2.2.2 Innovation Considerations ....................................................................... 2-3
2.2.3 Going Fast by Starting Slowly ................................................................. 2-4
2.2.4 Partnerships, Collaboration, and Communication .................................. 2-5
2.2.5 State and Local Coordination .................................................................. 2-5
2.2.6 Good Communication .............................................................................. 2-6
2.2.7 Well-Written Documents .......................................................................... 2-6
Tips for Success .................................................................................................. 2-7
Factors Influencing How Long the Process Takes .......................................... 2-9
Roles and Responsibilities ............................................................................... 2-12
2.5.1 Applicant ................................................................................................ 2-13
2.5.1.1 Consultants and Contractors ...................................................... 2-13

2.5.2

Services .................................................................................................. 2-14
2.5.2.1 Field Offices............................................................................... 2-14
2.5.2.2 Regional Offices ........................................................................ 2-17
2.5.2.3 Headquarters .............................................................................. 2-18
2.5.2.4 Legal Counsels ........................................................................... 2-20

PHASE 1: Pre-Application
Chapter 3: Getting Started
3.0
3.1

3.2
3.3
3.4

3.5

3.6
3.7

Introduction ........................................................................................................ 3-2
When Are an HCP and an Incidental Take Permit Needed? ........................ 3-2
3.1.1 What is Incidental Take? ......................................................................... 3-2
3.1.2 When to Seek an Incidental Take Permit and Develop an HCP? ............ 3-2
3.1.3 Considerations for Special Rules under Sections 4(d) and 10(j)............. 3-4
Avoiding Take and Avoiding the Need for an Incidental Take Permit ........ 3-5
Who Can Apply for an Incidental Take Permit? ............................................ 3-5
What Types of HCPs and Incidental Take Permits Are Possible? ............... 3-6
3.4.1 Single Applicant ..................................................................................... 3-10
3.4.2 Programmatic Plans .............................................................................. 3-10
3.4.2.1 Challenges, Details, and Opportunities with Programmatic
Plans ........................................................................................... 3-11
3.4.3 General Conservation Plans .................................................................. 3-13
3.4.3.1 Challenges, Details, and Opportunities with General
Conservation Plans..................................................................... 3-13
3.4.4 Plan Variations, Multiple Projects, or More Than One Applicant........ 3-14
3.4.5 Combined Section 10 Plans ................................................................... 3-15
3.4.6 Integrated Plans ..................................................................................... 3-16
3.4.7 Permit Severability and Implementation Oversight of Programmatic
Enrollees ................................................................................................ 3-17
What Types of Activities Can Be Covered in an HCP? ............................... 3-18
3.5.1 Otherwise Lawful ................................................................................... 3-18
3.5.2 Enhancement of Survival Permits Do Not Substitute for an HCP ......... 3-19
3.5.3 Accommodating State Requirements...................................................... 3-21
3.5.4 Section 7 Programmatic Consultations ................................................. 3-21
3.5.5 Research or Recovery Permits ............................................................... 3-21
3.5.6 No Temporary Authorization of Incidental Take ................................... 3-21
3.5.7 Advance Mitigation ................................................................................ 3-22
Going Fast by Starting Slow ........................................................................... 3-23
Other Compliance Requirements ................................................................... 3-27
3.7.1 Section 7 Intra-Service Consultation ..................................................... 3-27
3.7.2 Listed Plants and Critical Habitat ......................................................... 3-28
3.7.3 Migratory Birds and Eagles................................................................... 3-28
3.7.4 National Historic Preservation Act ....................................................... 3-28
3.7.5 National Environmental Policy Act ....................................................... 3-29

3.8

3.9
3.10

Contracted Assistance ..................................................................................... 3-30
3.8.1 Facilitators............................................................................................. 3-30
3.8.2 HCP and NEPA Consultants ................................................................. 3-31
3.8.3 Advice to Applicants on Selecting an HCP Consultant ......................... 3-32
Planning Resources Available......................................................................... 3-33
Making and Documenting Decisions .............................................................. 3-34

Chapter 4: Communicating and Coordinating
4.0
4.1

4.2
4.3

4.4
4.5
4.6

4.7

Effective Communication .................................................................................. 4-1
Identify Stakeholders ......................................................................................... 4-2
4.1.1 National Marine Fisheries Service (NMFS)/U.S. Fish and Wildlife
Service (FWS) .......................................................................................... 4-3
4.1.2 Other Federal Agencies ........................................................................... 4-4
4.1.3 Federally Recognized Tribes ................................................................... 4-4
4.1.4 State Agencies .......................................................................................... 4-5
4.1.5 Federally-Elected Officials ...................................................................... 4-5
Establish Communication Objectives .............................................................. 4-6
Messaging and Channels ................................................................................. 4-10
4.3.1 Written Media ........................................................................................ 4-11
4.3.2 Personal Contact with Stakeholders ...................................................... 4-11
4.3.3 Public Comments ................................................................................... 4-12
4.3.4 Public Meetings .................................................................................... 4-12
4.3.5 Public Hearings .................................................................................... 4-12
4.3.6 Focus Groups ......................................................................................... 4-12
4.3.7 Nominal Group Process ......................................................................... 4-12
4.3.8 Workshops and Forums ......................................................................... 4-13
4.3.9 Advisory Committees ............................................................................. 4-13
Analyzing Stakeholder Input .......................................................................... 4-13
Implementation and Monitoring .................................................................... 4-14
Effective Coordination..................................................................................... 4-15
4.6.1 Develop a Project Charter ..................................................................... 4-16
4.6.2 Develop a Work Breakdown Structure .................................................. 4-16
4.6.3 Establish an Organizational Structure .................................................. 4-16
4.6.4 Establish Management Procedures ....................................................... 4-16
Maintaining an Administrative Record ......................................................... 4-17
4.7.1 General Guidelines ................................................................................ 4-17
4.7.2 Documents That Should Be Included in the Administrative Record ...... 4-18
4.7.3 Other Documents That May Be Included in the Administrative
Record .................................................................................................... 4-19
4.7.4 Documents that Generally Should Not Be Included in the
Administrative Record ........................................................................... 4-19

PHASE 2: Developing the HCP and Environmental Compliance Documents
Chapter 5: Covered Activities and Alternatives to the Taking
5.1

5.2
5.3
5.4
5.5
5.6
5.7

Activities Covered by the Incidental Take Permit and HCP ......................... 5-1
5.1.1 Covered Activity Eligibility ...................................................................... 5-1
5.1.2 HCP Measures that Result in Take .......................................................... 5-1
5.1.3 Including Effects from the Covered Activities ......................................... 5-2
Types of Land and Water Use Activities Covered in HCPs........................... 5-2
Analyzing the Components of Land and Water Use Activities ..................... 5-3
Excluding Certain Activities ............................................................................. 5-5
Describing Covered Activities in the HCP....................................................... 5-5
Alternative Actions to the Taking in the HCP ................................................ 5-6
NEPA Alternatives ............................................................................................. 5-6

Chapter 6: Identifying the Plan Area, Permit Area, and Other Areas
Analyzed
6.1

6.2
6.3

6.4

Determining the Plan Area ............................................................................... 6-1
6.1.1 What is the Plan Area? ............................................................................ 6-1
6.1.2 Plan Area Size Considerations ................................................................ 6-2
6.1.3 Plan Area Units........................................................................................ 6-3
Determining the Permit Area ........................................................................... 6-3
Areas Analyzed Under Various Legal Authorities ......................................... 6-3
6.3.1 Section 10 ................................................................................................. 6-4
6.3.2 Section 7 ................................................................................................... 6-4
6.3.3 NEPA........................................................................................................ 6-5
6.3.4 NHPA ....................................................................................................... 6-5
Maps and Data Needs ........................................................................................ 6-6
6.4.1 Maps and Analyses ................................................................................. 6-6
6.4.2 Metadata and Data Documentation......................................................... 6-6
6.4.3 Data Management and Sharing Plans ..................................................... 6-7

Chapter 7: Identifying HCP Species and Information Needs
7.0
7.1
7.2
7.3
7.4

Introduction ........................................................................................................ 7-1
Requirements and Information Needs and Standards for “Covered“
Species ................................................................................................................. 7-4
Selecting Covered Species ................................................................................. 7-5
Addressing Non-Listed Species in the HCP .................................................... 7-6
Special Considerations for Some Species Groups ........................................... 7-7
7.4.1 Migratory Birds ....................................................................................... 7-7
7.4.2 Bald and Golden Eagles .......................................................................... 7-7
7.4.3 Anadromous Fish ..................................................................................... 7-9
7.4.4 Sea Turtles ............................................................................................... 7-9

7.4.5

7.5

7.6
7.7

7.8

Marine Mammals ................................................................................... 7-10
7.4.5.1 Marine Mammal Protection Act: Incidental Harrassment
Authorization ......................................................................................... 7-11
7.4.5.2 Marine Mammal Protection Act: Letters of Authorization ....... 7-11
7.4.6 Plants ..................................................................................................... 7-13
7.4.7 State Protected Species .......................................................................... 7-14
7.4.8 HCPs and Enhancement of Survival Permits ........................................ 7-14
Addressing Critical Habitat ............................................................................ 7-15
7.5.1 Effect of Critical Habitat on HCPs ........................................................ 7-15
7.5.2 Critical Habitat Exclusions.................................................................... 7-16
Identifying the Role of the Plan Area in the Conservation of each
Covered Species ................................................................................................ 7-16
Tools .................................................................................................................. 7-18
7.7.1 Climate Change Effects Analysis ........................................................... 7-18
7.7.2 Conceptual Models ................................................................................ 7-19
7.7.3 Decision Support Models ....................................................................... 7-19
7.7.4 Effects Pathway Model .......................................................................... 7-19
7.7.5 Geographic Information System ............................................................ 7-19
7.7.6 Habitat Equivalency Analysis ................................................................ 7-20
7.7.7 Population Viability Analysis ................................................................ 7-20
7.7.8 Reserve Design Optimization Models .................................................... 7-20
7.7.9 Resource Equivalency Analysis ............................................................. 7-21
7.7.10 Species Distribution Models .................................................................. 7-21
7.7.11 Species Status Assessments .................................................................... 7-21
7.7.12 Spreadsheet Population Models ............................................................ 7-22
Data Sharing ..................................................................................................... 7-22
7.8.1 FOIA and Proprietary Information ....................................................... 7-22

Chapter 8: Calculating Take from Land and Water Use Activities
8.1
8.2

8.3
8.4

Analysis of Take from Proposed Land and Water Use Activities ................. 8-1
Determining Take .............................................................................................. 8-1
8.2.1 Sources and Types of Take ....................................................................... 8-1
8.2.2 Units of Take ............................................................................................ 8-3
8.2.3 Quantity of Take....................................................................................... 8-5
8.2.4 Take That May Be Accounted For in Another Permitting Process ......... 8-5
Describe the Impact That Will Result From Such Taking ............................ 8-6
Section 7 Tasks ................................................................................................... 8-7

Chapter 9: HCP Conservation Strategy
9.0
9.1

Introduction ........................................................................................................ 9-2
Biological Goals .................................................................................................. 9-4
9.1.1 How to Develop Useful Goals.................................................................. 9-7
9.1.1.1 Habitat-Based Goals vs. Species-Based Goals ............................ 9-8
9.1.2 Responsibility for Developing Biological Goals and Objectives ............. 9-9

9.2

9.3

9.4

9.5

9.6

9.1.3 When to Develop Goals and Objectives................................................. 9-10
9.1.4 Number of Biological Goals .................................................................. 9-10
Biological Objectives ........................................................................................ 9-10
9.2.1 SMART ................................................................................................... 9-10
9.2.2 Considering Climate Change Effects in the Development of Goals
and Objectives ........................................................................................ 9-12
Conservation Measures ................................................................................... 9-12
9.3.1 Avoidance Measures .............................................................................. 9-13
9.3.2 Minimization Measures .......................................................................... 9-13
9.3.3 Mitigation Measures .............................................................................. 9-14
9.3.3.1 Restoration of Degraded Habitat ............................................... 9-15
9.3.3.2 Land Preservation ...................................................................... 9-15
9.3.3.3 Creation of New Habitat ............................................................ 9-16
9.3.3.4 Habitat Enhancement ................................................................. 9-17
9.3.3.5 Threat Reduction or Elimination ............................................... 9-17
9.3.3.6 Translocation.............................................................................. 9-17
9.3.3.7 Repatriation ................................................................................ 9-17
9.3.4 Putting Goals, Objectives, and Measures Together .............................. 9-17
9.3.5 How Much Minimization Compared to Mitigation? .............................. 9-19
Mitigation Implementation ............................................................................. 9-19
9.4.1 Permittee Implemented Mitigation ........................................................ 9-19
9.4.2 Conservation Banks ............................................................................... 9-20
9.4.3 In-Lieu-Fee Mitigation........................................................................... 9-22
9.4.4 Dealing with Uncertainty in Goals, Objectives, and Measures............. 9-23
9.4.5 Determining Location for Mitigation..................................................... 9-24
9.4.6 Planning for Inflation ............................................................................ 9-25
9.4.7 Conservation Design .............................................................................. 9-25
9.4.8 Permittee Responsibilities: Meeting Goals and Objectives, or Specific
Actions in the HCP................................................................................. 9-27
9.4.9 Timing of Mitigation .............................................................................. 9-27
9.4.10 Mitigation and ‘Stay ahead’ Provisions ................................................ 9-28
The Maximum Extent Practicable Standard ................................................ 9-28
9.5.1 How to Demonstrate Fully Offset .......................................................... 9-29
9.5.2 Demonstrating Additional Minimization and Mitigation Measures Are
Not Practicable ...................................................................................... 9-33
9.5.3 The Burden of Proving Maximum Extent Practicable ........................... 9-34
9.5.4 Services Conduct an Independent Analysis of Practicability ................ 9-35
9.5.5 Services Demonstration of Maximum Extent Practicable .................... 9-35
Providing for Changed Circumstances .......................................................... 9-38
9.6.1 Changed Circumstances ........................................................................ 9-38
9.6.2 Unforeseen Circumstances .................................................................... 9-39
9.6.3 Steps to Identify and Plan for Changed and Unforeseen
Circumstances ........................................................................................ 9-41
9.6.4 Differentiating Between a Changed and an Unforeseen
Circumstance ......................................................................................... 9-41
9.6.5 Determining Changed vs. Unforeseen Circumstances .......................... 9-44

9.7

9.6.6 NEPA and Changed Circumstances ...................................................... 9-44
9.6.7 Considering Climate Change Effects in Changed Circumstances ........ 9-44
9.6.8 Timing of Changed Circumstances ........................................................ 9-46
9.6.9 Information Needs for Changed and Unforeseen Circumstances ......... 9-46
9.6.10 No Surprises and Changed Circumstances............................................ 9-46
Considering Climate Change .......................................................................... 9-47

Chapter 10: Monitoring and Adaptive Management
10.0
10.1

10.2

10.3
10.4

10.5

Introduction ...................................................................................................... 10-1
10.0.1 Roles and Requirements for HCP Monitoring Programs ...................... 10-2
Monitoring ........................................................................................................ 10-3
10.1.1 Monitoring for Baseline Information ..................................................... 10-4
10.1.2 Effectiveness Monitoring to Support Ongoing Conservation
Decisions ................................................................................................ 10-4
10.1.2.1 Development of Competing Hypotheses and Conceptual
Models........................................................................................ 10-5
10.1.3 Reporting Compliance with Permit Terms and Conditions ................. 10-12
Steps to Developing a Monitoring Program ................................................ 10-12
10.2.1 Frame the Problem .............................................................................. 10-14
10.2.2 Design the Monitoring ......................................................................... 10-14
10.2.3 Implement the Conservation Program and Learn ............................... 10-19
10.2.4 Changes to the Monitoring Program .................................................. 10-19
Evaluation ....................................................................................................... 10-20
10.3.1 Dealing with Uncertainty in the Evaluation Process .......................... 10-21
Reporting and Compliance Evaluation ........................................................ 10-22
10.4.1 Data Sharing ....................................................................................... 10-23
10.4.2 Technology and Reporting ................................................................... 10-25
10.4.3 Outputs from Monitoring and Evaluation in Annual Reports ............. 10-26
10.4.4 Evaluating HCP Compliance ............................................................... 10-27
Adaptive Management................................................................................... 10-27
10.5.1 How to Incorporate Adaptive Management into an HCP ................... 10-30
10.5.2 Uncertainty in Management Decisions ................................................ 10-32
10.5.2.1 Accounting for Uncertainty ................................................... 10-32
10.5.3 Oversight Committees .......................................................................... 10-34

Chapter 11: Implementation Costs and Funding
11.0
11.1

11.2
11.3

Introduction ...................................................................................................... 11-1
Implementation Costs ...................................................................................... 11-2
11.1.1 Estimating Costs .................................................................................... 11-2
11.1.2 Preserve Management Costs.................................................................. 11-5
11.1.3 Adjusting Funding.................................................................................. 11-5
11.1.4 When a Mitigation Project Doesn’t Perform as Proposed .................... 11-5
Funding Sources ............................................................................................... 11-6
Funding Assurances ......................................................................................... 11-9

11.3.1 Examples of Plan Types and Funding Assurance Approaches That
May Apply ............................................................................................ 11-10
11.3.2 Categories of HCP Implementation Costs ........................................... 11-12
11.3.2.1 The Effect of Stay-Ahead Provisions on Funding
Assurances ............................................................................... 11-15
11.3.3 Types of Funding Assurances .............................................................. 11-15
11.3.3.1 Determining Adequate Funding Assurances for a Specific
Project ...................................................................................... 11-23
11.3.4 Third Party Beneficiaries ..................................................................... 11-24
11.3.4.1 Third-Party Beneficiary Structure.......................................... 11-24
11.3.4.2 Collecting Funds .................................................................... 11-24
11.3.5 Putting it All Together ......................................................................... 11-24

Chapter 12: Net Effects and Permit Duration
12.0
12.1
12.2
12.3
12.4
12.5
12.6

12.7
12.8
12.9

Introduction ...................................................................................................... 12-1
Determine the Anticipated Type and Amount of Take ................................ 12-2
Describe the Impacts of the Taking ................................................................ 12-3
Describe the Expected Benefits of the Conservation Program .................... 12-3
Determine the Net Effects to Covered Species and Critical Habitat........... 12-4
Effects Analysis and Permit Issuance Criteria .............................................. 12-4
Comparison of HCP Impact of Take Analysis with Section 7 Analysis of
Effects ................................................................................................................ 12-6
12.6.1 Impacts to Covered Species ................................................................... 12-6
12.6.2 Impacts to Critical Habitat .................................................................... 12-6
Comparison of HCP Impact of Take Analysis with NEPA Analysis of
Effects ................................................................................................................ 12-7
Comparison of NHPA Section 106 Process and NEPA Analysis of
Effects ................................................................................................................ 12-8
Permit Duration Considerations .................................................................... 12-8
12.9.1 Duration of Activities Covered .............................................................. 12-8
12.9.2 Determining if There is Enough Available Information ........................ 12-9
12.9.3 The Extent to Which the Conservation Plan Will Enhance the
Habitat and Increase the Long-Term Survivability of Covered
Species.................................................................................................... 12-9
12.9.4 How Well the Monitoring and Adaptive Management Program
Addresses Uncertainty ........................................................................... 12-9
12.9.5 Whether the Funding Strategy for the Conservation Program Is
Adequate for the Proposed Duration of the Permit ............................. 12-10
12.9.6 Permit Duration Decision .................................................................... 12-10

Chapter 13: National Environmental Policy Act Compliance
13.0
13.1

Introduction ...................................................................................................... 13-1
Purpose and Need ............................................................................................ 13-1

13.2

13.3

13.4

13.5

13.6

13.1.1 Template NEPA Purpose Statement for Incidental Take Permit
Applications ........................................................................................... 13-2
13.1.2 Template NEPA Need Statement for Incidental Take Permit
Applications ........................................................................................... 13-3
Proposed Action ............................................................................................... 13-3
13.2.1 Template Proposed Action Statement for Incidental Take Permit
Applications ........................................................................................... 13-5
Scope and Alternatives .................................................................................... 13-5
13.3.1 Scope ...................................................................................................... 13-6
13.3.2 Alternatives ............................................................................................ 13-6
13.3.2.1 No-Action ................................................................................ 13-7
13.3.2.2 Proposed Action ....................................................................... 13-8
13.3.2.3 Additional Alternatives ............................................................ 13-8
Public Participation ......................................................................................... 13-9
13.4.1 Public Participation Requirements ........................................................ 13-9
13.4.2 Let Interested Parties Know about the Application’s Comment
Period ..................................................................................................... 13-9
13.4.3 Incorporating Public Participation During the Development of an
HCP........................................................................................................ 13-9
13.4.4 Considering Tribal Interests in an HCP .............................................. 13-10
Levels of NEPA Review ................................................................................. 13-10
13.5.1 Categorical Exclusion .......................................................................... 13-10
13.5.2 Environmental Assessment................................................................... 13-12
13.5.3 Environmental Impact Statement ......................................................... 13-13
Preparation of NEPA Document by Consultants ....................................... 13-14

PHASE 3: Processing, Making a Permitting Decision, and Issuing the
Incidental Take Permit
Chapter 14: Completing and Reviewing the Permit Application and NEPA
Compliance Documents
14.0
14.1
14.2

14.3

Introduction ...................................................................................................... 14-2
Documents Required to Complete the Application ...................................... 14-2
Permit Application Forms, Application Fees, and Instructions .................. 14-4
14.2.1 FWS Application Form .......................................................................... 14-4
14.2.2 NMFS Applications ................................................................................ 14-5
14.2.3 Incomplete or Insufficient Application................................................... 14-5
14.2.4 FWS Application Processing Fee .......................................................... 14-5
Field Office Review of the HCP ...................................................................... 14-6
14.3.1 ESA Requirements .................................................................................. 14-8
14.3.2 Issuance Criteria .................................................................................... 14-9
14.3.3 Disqualifying Factors ............................................................................ 14-9
14.3.4 Incomplete or Inadequate HCP ........................................................... 14-10

14.3.5 Certification of Application by the Field Office that the HCP is
Statutorily Complete ............................................................................ 14-11
14.4 Field Office Review of the NEPA Analysis .................................................. 14-11
14.5 Federal Register Notices ............................................................................... 14-13
14.5.1 Purpose ................................................................................................ 14-13
14.5.2 Timing of the Notice ............................................................................. 14-13
14.5.3 Composition and Content of Federal Register Notices ....................... 14-13
14.5.4 Format of the Notice of Availability .................................................... 14-14
14.6 Required Public Comment Periods ............................................................. 14-14
14.7 Review by Regional Office and Legal Counsel............................................ 14-14
14.7.1 Regional Office Application Processing ............................................. 14-14
14.7.2 Review by Office of the Regional Solicitor and General Counsel ....... 14-15
14.8 Getting Federal Register Notices Signed and Published ............................ 14-18
14.8.1 FWS Procedures for Federal Register Notices .................................... 14-18
14.8.2 NMFS Procedures for Federal Register Notices – Headquarters ....... 14-20
14.9 The Freedom of Information Act and the Privacy Act .............................. 14-20
14.9.1 The Freedom of Information Act (5 U.S.C. § 552) .............................. 14-20
14.9.2 The Privacy Act of 1974 (5 U.S.C. § 552a) ......................................... 14-21
14.10 Tracking Databases ....................................................................................... 14-22
14.10.1 FWS Databases ................................................................................... 14-22
14.10.2 NMFS Databases ................................................................................ 14-22
14.11 Implementing Agreements ............................................................................ 14-23
14.12 Services’ Tasks During the Public Comment Period.................................. 14-24
14.12.1 Compliance with Section 7.................................................................. 14-24
14.12.2 Drafting the HCP-Specific Biological Opinion – Format .................. 14-26
14.12.3 FWS Intra-Service Consultation ......................................................... 14-29
14.12.4 NMFS Intra-Service Consultation ...................................................... 14-29
14.12.5 Inter-Agency Consultation Between the Services ............................... 14-30
14.12.6 Integrating the Section 7 Compliance Process with Development
of an HCP ............................................................................................ 14-30
14.12.7 Integrating HCPs and Federal Actions .............................................. 14-31
14.12.8 Drafting the Findings and Recommendations Memo ......................... 14-32
14.12.9 Drafting the NEPA Decision Document ............................................. 14-32

Chapter 15: Finalizing the HCP and Environmental Compliance Documents
15.1

15.2

Reviewing and Responding to Public Comments ......................................... 15-1
15.1.1 Comments on the HCP ........................................................................... 15-2
15.1.2 Comments on the NEPA Analysis .......................................................... 15-4
15.1.3 No Comments Received.......................................................................... 15-4
15.1.4 Controversy ............................................................................................ 15-4
15.1.4.1 Public Objection....................................................................... 15-4
15.1.4.2 Scientific Controversy ............................................................. 15-4
Finalizing the HCP and NEPA Analysis ........................................................ 15-5
15.2.1 FWS Final Review.................................................................................. 15-5
15.2.2 NMFS Final Review ............................................................................... 15-5

15.3

15.4
15.5

Completing the Section 7 Biological and Conference Opinion .................... 15-5
15.3.1 Relationship Between the Incidental Take Permit and the Incidental
Take Statement ....................................................................................... 15-6
15.3.2 Conferencing on Potential ESA-Listed Species (Proposed,
Candidate, or Unlisted Species) ............................................................ 15-6
15.3.3 Including Plants ...................................................................................... 15-7
Completion of National Historic Preservation Act Section 106
Requirements.................................................................................................... 15-7
NEPA Decision Documents ............................................................................. 15-7
15.5.1 Environmental Action Statement............................................................ 15-8
15.5.1.1 When to Prepare an Environmental Action Statement ............ 15-8
15.5.1.2 Content of the Environmental Action Statement ..................... 15-8
15.5.1.3 Processing the Environmental Action Statement ..................... 15-9
15.5.2 Making the Decision on an Environmental Assessment ........................ 15-9
15.5.2.1 Finding of No Significant Impact ............................................ 15-9
15.5.2.2 Content of the Finding of No Significant Impact .................. 15-10
15.5.3 Making the Decision on an Environmental Impact Statement............. 15-10
15.5.3.1 Record of Decision Checklist ................................................ 15-11
15.5.3.2 Content of the Record of Decision......................................... 15-11
15.5.4 Joint Federal-State Processes.............................................................. 15-11

Chapter 16: Making a Permit Decision
16.1

16.2

Documenting Our Findings - Section 10 Findings and Recommendations
Memorandum ................................................................................................... 16-2
16.1.1 Introduction and Project Description .................................................... 16-2
16.1.2 Section 10(a)(2)(A) HCP Criteria – Analysis and Finding ................... 16-2
16.1.3 Permit Issuance Criteria – Analysis and Finding.................................. 16-3
16.1.3.1 The taking will be incidental – section 10(a)(2)(B)(i) ............. 16-3
16.1.3.2 The applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of such taking –
section 10(a)(2)(B)(ii) ............................................................................ 16-3
16.1.3.3 The applicant will ensure that adequate funding for the
conservation plan and procedures to deal with unforeseen
circumstances will be provided. ............................................................. 16-4
16.1.3.4 The taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild. ................................... 16-5
16.1.3.5 The measures, if any, required under paragraph
(b)(1)(iii)(D) of this section will be met ................................................ 16-6
16.1.3.6 He or she has received such other assurances as he or she
may require that the plan will be implemented ...................................... 16-6
16.1.4 Disqualifying Factors ............................................................................ 16-6
Writing the Permit ........................................................................................... 16-7
16.2.1 Permit Terms and Conditions ................................................................ 16-8
16.2.2 Reporting Requirements....................................................................... 16-12

16.3
16.4

16.5
16.6
16.7

16.8

Federal Register Notice of Availability - Final HCP, Final NEPA
Analysis, and Draft or Final Decision Documents ...................................... 16-12
Preparing and Processing the Signature Package ...................................... 16-13
16.4.1 Contents of the Signature Package ...................................................... 16-13
16.4.2 Who Signs the Documents and Why..................................................... 16-14
16.4.2.1 FWS ....................................................................................... 16-14
16.4.2.2 NMFS ..................................................................................... 16-14
16.4.3 Timing – When Documents are Signed ................................................ 16-14
16.4.3.1 Environmental Action Statement and Permit ........................ 16-15
16.4.3.2 Finding of No Significant Impact and Permit ........................ 16-15
16.4.3.3 Record of Decision and Permit .............................................. 16-16
Implementing the HCP and Executing the NEPA Decision ....................... 16-16
Permit Issuance and Distribution of Copies of the Permit ........................ 16-16
Permit Denial, Review, and Appeal Procedures (Who Signs the Permit
and Why)......................................................................................................... 16-16
16.7.1 Permit Denial ....................................................................................... 16-16
16.7.2 Request for Reconsideration of a Permit Denial ................................. 16-17
16.7.3 Copies of Denials ................................................................................. 16-17
SPITS, APPS, and ECOS .............................................................................. 16-17

PHASE 4: Implementing the HCP and Compliance Monitoring
Chapter 17: Implementing the HCP, Compliance Monitoring, and Making
Changes, If Necessary
17.1
17.2

17.3
17.4

17.5
17.6

Implementation and Administration of the HCP ......................................... 17-1
HCP Monitoring Program: Ensuring the Funding, Conservation
Commitments, Mitigation, and All Other Aspects of the HCP Are Being
Fulfilled; Review of Annual Reports .............................................................. 17-2
17.2.1 Biological Effectiveness Monitoring ...................................................... 17-2
17.2.2 Incidental Take Permit Compliance Monitoring ................................... 17-3
Adaptive Management, Changed Circumstances, and No Surprises in
Practice.............................................................................................................. 17-4
Permit Amendments, Renewals, Transferals ................................................ 17-5
17.4.1 Changes to HCP Implementation .......................................................... 17-6
17.4.1.1 Interpretations, Corrections, Clarifications, or Missing
Details ........................................................................................ 17-6
17.4.1.2 HCP and Incidental Take Permit Amendments ....................... 17-6
17.4.2 Renewals ................................................................................................ 17-8
17.4.3 Permit Transfers .................................................................................... 17-8
When Additional NEPA, Section 7, or NHPA Compliance is Needed ...... 17-10
Permit Compliance Problems, Notifying Law Enforcement, Suspensions,
and Revocations ............................................................................................. 17-10
17.6.1 Permit Suspension and Revocation ...................................................... 17-11

17.7

17.6.2 Summary of FWS Suspension and Revocation Process Step by Step .. 17-13
17.6.3 Summary of NMFS Suspension and Revocation Process .................... 17-13
Permit Abandonment or Relinquishment ................................................... 17-14

Appendices
Appendix A: National Historic Preservation Act (NHPA) Compliance and Habitat
Conservation Plans (HCP) for the U.S. Fish and Wildlife Service ........ A-1
Appendix B: Special Considerations for Including Use of Pesticides in Habitat
Conservation Plans...................................................................................B-1
Appendix C: Required Habitat Conservation Plan (HCP) Elements and
Recommended HCP Outline ....................................................................C-1

Glossary
Literature Cited

LIST OF ACRONYMS
AA
ABPP
ACHP
Act
APA
APE
APPS
BBCS
BGEPA
BMP
BO
CatEx
CCA
CCAA
CD
CEQ
CFR
CWA
DOC
DOI
DRD
DTS
EA
EAS
ECOS
EO
EIS
EPA
EPM
ESA
FACA
FOIA
FONSI
FR
FWS
GCP
GIS
GPO
GPS

Assistant Administrator
Avian and Bat Protection Plan
Advisory Council on Historic Preservation
Endangered Species Act
Administrative Procedure Act
Area of Potential Effect
Authorizations and Permits for Protected Species
Bird and Bat Conservation Strategy
Bald and Golden Eagle Protection Act
Best Management Practice
Biological Opinion
Categorical Exclusion
Candidate Conservation Agreement
Candidate Conservation Agreement with Assurances
Certificate of Deposit
Council on Environmental Quality
Code of Federal Regulations
Clean Water Act
Department of Commerce
Department of the Interior
Deputy Regional Director
Data Tracking System
Environmental Assessment
Environmental Action Statement
Environmental Conservation Online System
Executive Order
Environmental Impact Statement
Environmental Protection Agency
Effects Pathway Management
Endangered Species Act
Federal Advisory Committee Act
Freedom of Information Act
Finding of No Significant Impact
Federal Register
United States Fish and Wildlife Service
General Conservation Plan
Geographic Information System
Government Printing Office
Global Positioning System
ii

HCP
HEA
IHA
IPaC
ITP
LCC
LOA
MBTA
MSHCP
MMPA
NCTC
NGO
NEPA
NHPA
NMFS
NOA
NOAA
NOI
NPS
PPM
PR
PVA
RA
RD
REA
RFP
RHPO
ROD
RTS
SF
SHA
SHC
SHPO
SPITS
STAM
SUP
TAILS
THPO
TOC
USFWS
USGS

Habitat Conservation Plan
Habitat Equivalency Analysis
Incidental Harassment Authorization
Information for Planning and Conservation
Incidental Take Permit
Landscape Conservation Cooperative
Letter of Authorization
Migratory Bird Treaty Act
Multiple Species Habitat Conservation Plan
Marine Mammal Protection Act
National Conservation Training Center
Non-Governmental Organization
National Environmental Policy Act
National Historic Preservation Act
National Marine Fisheries Service
Notice of Availability
National Oceanic and Atmospheric Administration
Notice of Intent
National Park Service
Division of Policy, Performance, and Management Programs
Protected Resources
Population Viability Analysis
Regional Administrator
Regional Director
Resource Equivalency Analysis
Request for Proposals
Regional Historic Preservation Officer
Record of Decision
Regulatory Tracking System
Sustainable Fisheries
Safe Harbor Agreement
Strategic Habitat Conservation
State Historic Preservation Officer
Service Permit Issuance Tracking System
Species Take Avoidance Measure
Special Use Permit
Tracking and Integrated Logging System
Tribal Historic Preservation Officer
Table of Contents
United States Fish and Wildlife Service
United States Geological Survey
iii

Chapter 1: Introduction
1.1
1.2

Purpose of the HCP Program
Evolution of the HCP Program
1.2.1 Added Regulations and Policies
1.2.2 Successes of the HCP Program
1.2.3 Lessons Learned
1.3
Laws and Other Requirements Related to the HCP Program
1.3.1 Relationship and Hierarchy
1.3.2 Endangered Species Act
1.3.3 National Environmental Policy Act
1.3.4 National Historic Preservation Act
1.3.5 Administrative Procedure Act
1.3.6 Tribal Consultation and the ESA
1.3.7 Other Related Process Laws
1.3.8 A List of Related Natural Resource Laws
1.4
How to Use the HCP Handbook
1.4.1 Purpose of the Handbook
1.4.2 Organization of the Handbook
1.4.3 Tips for Using the HCP Handbook
____________________________________________________________________________
1.1 Purpose of the Habitat Conservation Plan Program
The purpose of the Endangered Species Act of 1973 (see the HCP Handbook Toolbox), as
amended (ESA), is to protect and recover threatened and endangered species and the ecosystems
upon which they depend. The U.S. Congress found that some species of fish, wildlife, and plants
are now extinct “as a consequence of economic growth and development untempered by
adequate concern and conservation” (section 2(a)(1) of the ESA). They also found that other
species are in danger of extinction. Additionally, Congress held that species have aesthetic,
ecological, educational, historical, recreational, and scientific value and pledged to conserve
species facing extinction. Consequently, Congress passed the ESA to “…provide a means
whereby the ecosystems upon which [endangered and threatened] species depend may be
conserved, to provide a program for the conservation of such...species” (section 2(b) of the
ESA). The ESA specifically defines conservation as “…to use and the use of all methods and
procedures which are necessary to bring any [listed] species to the point at which the measures
provided pursuant to this Act are no longer necessary” (section 3(3) of the ESA).
Section 9 of the ESA prohibits take of any fish or wildlife species listed as endangered. Take is
defined in section 3 as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct.” The U.S. Fish and Wildlife Service (FWS)
determined that all of the prohibitions that apply to endangered species would also apply to
threatened species, unless otherwise provided for through a special rule under section 4(d) of the
ESA (42 FR 4656; 50 CFR 17.31(a)) (see the HCP Handbook Toolbox). The National Marine
Fisheries Service (NMFS) does not have such a regulation, so it issues separate protective
regulations specifying prohibitions of take for each threatened species under its jurisdiction. (We
1-1

refer to these two agencies collectively as “the Services” in the rest of this Handbook. We use the
appropriate acronym when the discussion is applicable only to one specific agency.)
Before 1982, the ESA did not have mechanisms for exempting take prohibitions from Federal or
non-Federal activities, except for permits to authorize take from scientific research or certain
other conservation actions. Congress recognized the need for a process to reduce conflicts
between listed species and economic development, so it amended the ESA in 1982 to add an
exemption for incidental take of listed species that would result from non-Federal activities
(section 10(a)(1)(B)). Incidental take is that which is incidental to, and not the purpose of,
carrying out an otherwise lawful activity.
To obtain a permit for such take under this provision, an applicant must develop a conservation
plan that meets specific requirements identified in section 10(a)(2)(A) of the ESA and its
implementing regulations at 50 CFR 17.22 (endangered species) and 17.32 (threatened species),
and 50 CFR 222.25, 222.27, and 222.31 (see the HCP Handbook Toolbox). Among other
requirements, the plan must specify the impacts that are likely to result from the taking, the
measures the permit applicant will undertake to minimize and mitigate such impacts, and the
funding that will be available to implement such measures. Conservation plans under section
10(a)(1)(B) have come to be known as "habitat conservation plans" or "HCPs" for short.
Although “HCPs” is most commonly used in this Handbook, we may use these terms
interchangeably on occasion. Section 10(a)(2)(B) of the ESA sets forth the statutory criteria that
must be satisfied before an incidental take permit can be issued.
Congress intended the HCP program 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. Congress also envisioned the HCP program as an opportunity
to establish “creative partnerships” between the public and private sectors and State, municipal,
and Federal agencies to conserve endangered and threatened species and their habitats (H.R.
Rep. No. 97-835 (1982)) (see the HCP Handbook Toolbox). Congress intended the HCP
program to function not only to authorize incidental take, but also as a process to integrate nonFederal development and land-use activities with conservation goals, resolve conflicts between
protection of listed species and economic activities on non-Federal lands, and create a climate of
partnership and cooperation.
In that spirit, the Services should encourage permit applicants and partners to use Congress’
intent as the foundation for working together to develop an HCP. Collaboration, flexibility,
ingenuity, innovation, and thoughtful planning are key to developing effective HCPs and
resolving complex and controversial issues that may arise.
Congress also intended that HCPs include, when possible, conservation measures for candidate
species, proposed species, and other species not listed under the ESA at the time an HCP is
developed. Covering species likely to be listed within the term of the permit can benefit the
permittee by ensuring the terms of an HCP will not need to be changed over time with
subsequent species listings. It can also provide early protection for many species and, ideally,
prevent subsequent declines and in some cases the need to list such species.

1-2

1.2 Evolution of the HCP Program
After the 1982 amendment of the ESA creating the HCP program, momentum for developing
HCPs took a few years to build, partly due to inevitable, initial difficulties as the Services,
applicants, and the public explored the new program’s potential. The first 10 years produced only
10 HCPs, but from 1992 to 1997 the program exploded with 225 completed plans. By 2009,
more than 500 HCPs covered approximately 46 million acres of non-Federal lands. As of this
writing (2016), the Services have approved approximately 1,100 HCPs nationwide, and many
more HCPs are in different stages of development.
Besides growing in number, the nature and quality of the HCP program continues to evolve.
Early HCPs tended to cover only one species, involve single applicants, and address small
projects. The program later ventured into multi-species and regional plans that covered a variety
of activities related to development. We learned that some planning efforts can become too
ambitious in scope and size, and that we need to weigh the benefits against the difficulties of
developing HCPs covering many species, activities, and acres. However, we strongly support a
landscape-scale approach when appropriate, because it can provide more opportunities for
strategically placing appropriate conservation in an ecosystem context (see Chapters 3.4 and
6.1.2 for further discussion). Today, countywide, Statewide, and even multi-State HCPs are
showing conservation and economic successes.
1.2.1 Added Regulations and Policies
The Services continued to improve the HCP program by establishing additional policies and
regulations to promote efficiency, effectiveness, and consistency to protect at-risk species and
enhance their conservation. These initiatives were based on lessons learned, as well as input from
applicants, permittees, conservation organizations, and our own staff. Four of these initiatives are
described below.
On February 23, 1998, the Services codified a final rule (63 FR 8859) (see the HCP Handbook
Toolbox) to provide certain regulatory assurances to permittees under section 10(a)(1)(B). These
assurances are called No Surprises assurances and essentially mean that “a deal is a deal.” As
long as the permittee is properly implementing the HCP, the Services will not impose additional
requirements or restrictions. If an unforeseen circumstance occurs, unless the permittee consents,
the Services will not require him/her to commit additional land, water, or financial compensation
or impose additional restrictions on the use of land, water, or other natural resources beyond the
level agreed to in the HCP. The Services will honor these assurances as long as a permittee is
implementing the requirements of the HCP, permit, and other associated documents in good
faith, and their permitted activities will not jeopardize the species.
On June 1, 2000, the Services published the Five-Point Policy (65 FR 35242) (see the HCP
Handbook Toolbox) as an addendum to the 1996 Habitat Conservation Planning Handbook. The
policy focuses on the expanded use and integration of five components of the HCP program,
namely (1) biological goals and objectives, (2) adaptive management, (3) monitoring, (4) permit
duration, and (5) public participation. The principles and specifics of this policy have been
integrated into this revised Handbook in Chapters 9.1, 10.5, 10.1, 12.9, and 13.4, respectively.
As such, the revised Handbook supersedes the policy.
1-3

On October 5, 2007, the FWS Director issued a General Conservation Plan Policy to allow FWS
staff to prepare general conservation plans (GCPs) (see the HCP Handbook Toolbox) to
streamline the permitting process for project proponents and ensure strategic conservation for
covered species. FWS staff also prepare all other required environmental compliance documents
for GCPs. As a result of this policy, interested landowners can now coordinate with FWS to
determine if a completed GCP is appropriate for their activities and, if so, apply for individual
permits without having to prepare their own HCPs.
On May 10, 2011, the FWS Director issued a policy providing guidance related to 50 CFR 22.11
that allows ESA section 10(a)(1)(A) and 10(a)(1)(B) permits to cover take of bald or golden
eagles resulting from activities that also result in take of listed species (see the HCP Handbook
Toolbox). The key stipulation is that the eagle take authorization on these permits must meet the
standards and requirements of the Bald and Golden Eagle Protection Act. Under the regulations
and this policy, project proponents do not need to go through two different permit processes to
obtain incidental take coverage for eagles and listed species.
1.2.2 Successes of the HCP Program
Over the years, HCPs have addressed a wide variety of sustainable uses (e.g., forestry, water
uses, rangeland management, fisheries harvest, renewable energy), development (e.g.,
residential, commercial, industrial, infrastructure), resource extraction (e.g., surface mining, oil
and gas), and many other types of activities, even small residential projects with homeowners.
As a result, the HCP program has reduced conflicts between listed species and economic
development and other activities while achieving significant conservation for covered species.
Partnerships created to develop and implement HCPs have helped generate community support
for species conservation at multiple scales. HCPs that have established broad conservation
strategies have leveraged funds for additional habitat protection beyond the requirements of the
HCPs. Monitoring, adaptive management, and research programs in HCPs have produced an
extensive amount of scientific information and data that are invaluable for a better understanding
of how to conserve at-risk species and their habitats. Through HCP conservation measures,
leveraged contributions for protection, and restoration and enhancement of habitat, the HCP
program has produced conservation benefits to covered species across millions of acres.
Following are just a few examples highlighting the many successes of the HCP program.
Additional examples can be found in the HCP Handbook Toolbox).
Balcones Canyonlands Conservation Plan
The Balcones Canyonlands Conservation Plan (see the HCP Handbook Toolbox) was developed
as an HCP to establish a 30,000-acre reserve for the golden-cheeked warbler, black-capped vireo,
and 33 other species, while allowing for residential, commercial, and industrial development in
Travis County, Texas. The City of Austin, Travis County, the Lower Colorado River Authority,
The Nature Conservancy, the Travis Audubon Society, and others partnered to develop the HCP
and establish and manage the reserve. As a result, the species are receiving substantial
conservation benefits, the local economy is prospering, property values increased, and residents
are enjoying an increased quality of life.

1-4

Wisconsin Statewide Karner Blue Butterfly HCP
A diverse partnership of over 40 partners developed this HCP (see the HCP Handbook Toolbox)
in the late 1990s and continue to work together to successfully implement it to this day. Their
efforts are ensuring the continued existence of the butterfly on more than 260,000 acres in
Wisconsin. The partners use innovative approaches to apply conservation measures on the
ground while allowing for a variety of economic activities, such as forest management,
transportation, and utility operations. This HCP also streamlines ESA coverage for smalllandowners and low-impact land uses.
North Carolina Department of Environment and Natural Resources HCP for Inshore
Gillnet Fisheries
Some HCPs are successful due to the strong collaboration between the involved parties from
start to finish. From the beginning stages of plan development, NMFS worked very closely with
the State to complete this high-quality HCP to cover bycatch of Atlantic sturgeon from their
inshore gillnet fisheries. Frequent and open communication kept all parties informed and
fostered a cordial and collaborative working relationship. In the end, NMFS approved the HCP
and issued the permit in a timely and efficient manner. This cooperative relationship was also
key to quickly resolving the few implementation issues that arose following permit issuance.
Washington County, Utah HCP
This HCP (see the HCP Handbook Toolbox) was the impetus for a large, collaborative effort
among several partners to establish a reserve for the threatened desert tortoise in the Upper
Virgin River Desert Tortoise Recovery Unit in Washington County, Utah. The HCP covered take
of desert tortoises from development activities in the rapidly growing city of St. George. As the
permittee and HCP administrator, Washington County contributed resources to facilitate land
acquisitions, land exchanges, and conservation easements for nearly 60,000 acres for the Red
Cliffs Desert Reserve. Integral partners in establishing this reserve were Washington County,
nearby cities, Utah Department of Wildlife Resources, Utah Department of Parks and
Recreation, Utah School and Institutional Trust Lands Administration, Utah State Parks, Bureau
of Land Management, and FWS.
1.2.3 Lessons Learned
Despite the many successes of the HCP program, we have learned a variety of lessons over the
three decades of implementing the HCP program. The good news is that the Services are taking
stock of these experiences and are offering solutions and improvements for this revision of the
HCP Handbook.
The challenge of balancing biology with economics is a complex one, but is fundamental to the
HCP process. That balancing act often results in complications and protracted times to develop
some HCPs. There are many reasons for delays in preparing, reviewing, and processing HCPs,
and not all causes are always under the control of the involved parties. However, this Handbook
includes new ways of streamlining and improving efficiencies for those portions of the process
that the Services can influence. This Handbook also describes refined approaches for analyzing
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take impacts and identifying relevant conservation measures, which are intended to reduce or
eliminate protracted negotiations. It also identifies ways for streamlining compliance with the
National Environmental Policy Act (NEPA) (see the HCP Handbook Toolbox) on the action of
issuing an incidental take permit. Other improved efficiencies reduce permit processing time by
eliminating unnecessary or duplicative steps. We also offer tips on “Going Fast by Starting
Slowly” that embody the concept of investing thoughtful planning and establishing common
understandings at the very beginning of the HCP development process to pre-empt problems and
delays later (see Chapters 2.2.3 and 3.6 for further discussion). We also withdrew advice in the
1996 Handbook to combine the NEPA document with the HCP in an attempt to streamline the
regulatory process. Because the HCP is the applicant’s document and the NEPA document is the
Services’, keeping them separate is critical for demonstrating that each party is complying with
requirements applicable to them.
Another important addition to the revised Handbook involves the need to integrate consideration
of climate change effects into HCPs and related ESA section 7 and NEPA documents, which can
be challenging. The scientific literature on climate change and its effects, as well as analysis
tools, experience with climate adaptation measures, and related guidance are relatively new and
are changing as new information becomes available. We added information in various sections of
the Handbook to help HCP practitioners consider and address the effects of climate change in the
development and implementation of HCPs.
1.3 Laws and Other Requirements Related to the HCP Program
The Services must comply with all applicable Federal laws and regulations in carrying out the
permit process. Some of these laws and regulations are tightly integrated with the HCP process,
such as the ESA, NEPA, National Historic Preservation Act (NHPA), and Administrative
Procedure Act (APA) (see the HCP Handbook Toolbox), while others, addressed below, may be
relevant depending on the circumstances. This section is a brief introduction of the various laws,
regulations, and other requirements related to the HCP process. Further information on how to
comply with some of these laws during the HCP process is in other chapters of the Handbook. At
the end of this section is a list of other laws that are primarily related to wildlife and other natural
resources. We also included a description of court cases related to HCPs over the years in the
HCP Handbook Toolbox (see the HCP Handbook Toolbox).
1.3.1 Relationship and Hierarchy
This section explains the relationship and hierarchy of the general categories of Federal laws,
regulations, and other directives.
U.S. Constitution
Adopted in 1790, the Constitution is the supreme law of the land. It can only be amended by an
act of Congress or through a Constitutional convention requested by two-thirds of State
legislatures, followed by ratification by at least three-fourths of the States. It cannot be
contravened or contradicted by any law, regulation, or policy.

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Statute or Law
A statute or act is enacted by the U.S. Congress and signed into law by the President of the
United States or passed by Congress overriding a President’s veto. Compliance is mandatory for
all parties, including the applicant and the Services. The ESA, NEPA, NHPA (see the HCP
Handbook Toolbox), and APA are all Federal laws.
Federal Regulations
An enacted law may authorize the relevant members of the President’s Cabinet (in the case of the
ESA, the Secretaries of the Interior and Commerce) to enact Federal regulations that decree how
Federal agencies must implement the statute. These regulations are written in the Code of
Federal Regulations (CFR). FWS’ regulations related to HCPs are found at 50 CFR 13 (general
permit regulations) and 17 (ESA-specific regulations) and NMFS regulations are at 50 CFR 222.
The regulations for section 7 of the ESA are found at 50 CFR 402 (joint Services regulations).
See the HCP Handbook Toolbox for pertinent regulations.
Policy
The heads of Federal departments and agencies can issue policies to inform staff and the public
about how they interpret and implement specific regulations or other requirements. Other
policies expand on the regulations. For instance, the FWS Director’s General Conservation Plan
policy (see the HCP Handbook Toolbox) is not explicitly contained in the regulations, although
the regulations support it. Federal agencies are expected to comply with all formally promulgated
policies that apply to their work. These policies can be issued in the form of Secretarial,
Executive, or Director’s Orders; agency policy manuals; memoranda; etc. FWS Regional
Directors and NMFS Regional Administrators may also issue policies that apply to their
jurisdictions, as long as they do not conflict with national policy.
Guidance
Guidance consists of recommendations, directions, and advice on how to interpret or implement
regulations and policies. Guidance may be formally or informally issued by any level of
leadership. Formal guidance is typically in written form, such as this HCP Handbook and
memorandum from a Regional Director. Staff typically must comply with formal guidance, but
managers may exercise discretion to adjust to circumstances, as appropriate and with proper
approvals.
1.3.2 Endangered Species Act
The purpose of the ESA is to conserve threatened and endangered species and the ecosystems
upon which they depend (section 2(b)). Congress amended the ESA several times over the years,
including adding the authority to exempt incidental take in 1982. Sections 6, 7, 9, and 10 are
most relevant to HCPs. Here we focus the description of these four sections (not in numerical
order) on how they relate to the HCP process and permit issuance.

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Section 9
Section 9 of the ESA prohibits the take of any fish or wildlife species listed as endangered.
Section 9 prohibits damage or destruction of plants listed as endangered on Federal property or
on non-Federal lands when doing so in knowing violation of any State law or regulation or in the
course of any violation of a State criminal trespass law. Take is defined as “harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
FWS further defines “harm” (50 CFR 17.3) as “...an act which actually kills or injures wildlife.
Such act may include significant habitat modification or degradation where it actually kills or
injures wildlife by significantly impairing essential behavioral patterns, including breeding,
feeding, or sheltering.” The NMFS definition of “harm” (50 CFR 222.102) is very similar, but
adds more specific terms related to fish. It is “...an act which actually kills or injures fish or
wildlife. Such act may include significant habitat modification or degradation where it actually
kills or injures fish or wildlife by significantly impairing essential behavior patterns, including
breeding, spawning, rearing, migrating, feeding, or sheltering.”
The FWS further defined “harass” in 50 CFR 17.3 as “...an intentional or negligent act or
omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to
significantly disrupt normal behavioral patterns which include, but are not limited to, breeding,
feeding, or sheltering.” On October 21, 2016, NMFS issued “Interim Guidance on the
Endangered Species Act Term, Harass” employing a similar definition (see Glossary).
Although section 9 does not prohibit take of fish and wildlife species listed as threatened, the
FWS promulgated a regulation (50 CFR 17.31(a)) stating that all prohibitions for endangered
fish and wildlife species also apply to threatened species. The FWS may publish an ESA section
4(d) special rule for a threatened species, specifying exemptions to the take prohibitions for
certain types of activities. Thus, activities exempted by a section 4(d) rule do not need to be
covered in an HCP. See Chapter 3.1.3 for further discussion of section 4(d) rules.
In 1988, the ESA definition of “person” was amended to include an “…individual, corporation,
partnership, trust, association, or any other private entity; or any officer, employee, agent,
department, or instrumentality of the Federal Government, of any State, municipality, or political
subdivision of a State, or of any foreign government; any State, municipality, or political
subdivision of a State; or any other entity subject to the jurisdiction of the United States.”
Understanding which non-Federal entities are subject to the section 9 prohibitions is important
for determining when application for an incidental take permit may be necessary. States,
counties, cities, municipalities and other political subdivisions that regulate or issue permits for
certain activities (e.g., building permits, capital improvement projects, etc.) that could result in
unauthorized take may be held equally liable for violation of section 9. To ensure ESA
compliance, these entities may want to develop a programmatic HCP and seek their own
incidental take permit or require applicants to seek individual permits.
Section 10
Section 10(a) of the ESA provides exceptions to the section 9 prohibitions on take of listed
species via two kinds of permits. Section 10(a)(1)(A) permits authorize the take of listed species
for scientific purposes or to enhance the propagation or survival of listed species. Section
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10(a)(1)(B) permits authorize the incidental take of listed species caused by otherwise lawful
activities. The full set of section 10 regulations for the FWS and NMFS are in the HCP
Handbook Toolbox.
Section 7
Section 7(a)(1) directs Federal agencies to use their authorities to carry out programs for the
conservation of threatened and endangered species. Federal agencies must also consult with the
Services, under section 7(a)(2) of the ESA, on discretionary actions they fund, authorize, or carry
out that may affect a listed species or its designated critical habitat. The Services must conduct
an intra-Service consultation under section 7(a)(2) when proposing to issue a permit for
incidental take under section 10(a)(1)(B). As part of the consultation process, the Services
produce a biological opinion that analyzes the effects of issuing the permit, together with
cumulative effects (as that term is defined in the section 7 regulations), on affected listed species
and critical habitat to determine whether that permit action is likely to jeopardize the continued
existence of the listed species or to destroy or adversely modify designated critical habitat. If the
HCP and permit also covers any proposed or candidate species or may affect proposed critical
habitat, the Services also conduct such analyses of effects in the same biological opinion.
Services staff should start the section 7 process in the early stages of HCP development to inform
adequate consideration of listed species and critical habitat in the HCP’s conservation strategy
and measures. Deferring such consideration until the back end of the process can cause delays at
a time when the process to make a permit decision should move quickly.
Section 6
Section 6 directs the Services to cooperate with the States in carrying out the ESA. Section 6(a)
requires consulting with the States before acquiring any land or water for the conservation of
listed species. Since mitigation measures in many HCPs include the permanent protection of
habitat through acquisition of fee title or conservation easements, the Services must work with
applicants to solicit affected States for early participation in the HCP development process.
Section 6(d) authorizes the Services to provide funding to States and Territories for species and
habitat conservation actions on non-Federal lands. Under section 6(d), the FWS created two
non-traditional grant programs related to HCPs.
HCP Planning Assistance Grants program (see the HCP Handbook Toolbox) provides funding
to assist States and applicants with a number of tasks needed to develop HCPs, including, but
not limited to, document preparation, analyses, modeling, baseline surveys, and outreach.
These activities should be identified in the grant proposal. This grant program is typically used
for larger HCPs where local or State governments are the incidental take permit applicants.
These grants cannot be used for implementing the HCP after permit issuance.
HCP Land Acquisition Grants program (see the HCP Handbook Toolbox) funds acquisition of
lands that will complement the conservation efforts of HCPs for which the permit has been
issued. Targeted lands must be near or adjacent to the HCP plan area. Such grants must result

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in important benefits to the covered species and their ecosystems. These grants cannot be used
to help fulfill the HCP’s mitigation requirements.
The FWS’ traditional section 6 grants program can provide funding to eligible State agencies to
support ongoing or new conservation activities that are only above and beyond the monitoring,
minimization, and mitigation measures and other activities required in an HCP.
Because funding from section 6 grant programs must be provided directly to State wildlife
agencies, the interested State must prepare proposals and send them to the FWS. Typically,
States, applicants and their consultants, and FWS collaborate on preparing proposals. The
timing of each Federal fiscal year’s section 6 grant cycle varies, so contact your FWS Regional
HCP or Section 6 Grants Coordinator for information on the grant application process. The
coordinators can also provide important guidance on how to prepare proposals that will have
the best chance of selection in these nationally and regionally competitive grant programs.
Section 11
Section 11 describes the civil and criminal penalties for violating provisions of the ESA.
Section 11(g) allows civil suits to enjoin any person, entity, or government agency alleged to
be in violation of any provision of the ESA.
1.3.3 National Environmental Policy Act
The purpose of NEPA is to promote analysis and public disclosure of environmental impacts
from a proposed Federal action to support a decision that carries out the policies of the Federal
government, while creating and maintaining harmony between productive human activity and the
natural world. Issuance of an incidental take permit is a Federal action subject to NEPA
compliance. Although section 10 and NEPA requirements overlap considerably, the scope of
NEPA goes beyond that of the ESA by considering the impacts of a Federal action on other
resources, such as water quality, air quality, and cultural resources. Depending on the scope and
impacts of the HCP, NEPA requirements can be satisfied by one of the three following
documents or actions: (1) a categorical exclusion; (2) an Environmental Assessment (EA); or (3)
an Environmental Impact Statement (EIS). More information on NEPA and details on integrating
the NEPA and HCP processes are included in several chapters of this Handbook and in the HCP
Handbook Toolbox.
1.3.4 National Historic Preservation Act
Section 106 of the NHPA (see the) requires Federal agencies to take into account the effects of
their undertakings on cultural resources that are, or may be, eligible for inclusion on the National
Register of Historic Places. An undertaking is a project, activity, or program under the direct or
indirect jurisdiction of a Federal agency. Such jurisdiction includes funding an action in whole or
in part; carrying out an action by or on behalf of a Federal agency; issuance of a Federal permit,
license, or approval; and State or local regulation administered under a delegation or approval by
a Federal agency. As such, implementation of an HCP and issuance of an incidental take permit
are an undertaking and subject to compliance with section 106 of the NHPA. Details on
complying with NHPA are in several chapters of this Handbook and in Appendix A. Field staff
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should contact their Regional HCP Coordinators for guidance from Regional Historic
Preservation Officers.
1.3.5 Administrative Procedure Act
The APA (see the HCP Handbook Toolbox), enacted by Congress in 1946, directs Federal
agencies how to propose and promulgate Federal regulations. The primary purposes of the APA
are to: (1) require agencies to keep the public informed of their organization, procedures, and
rules; (2) provide for public participation in the rulemaking process; (3) establish uniform
standards for the conduct of formal rulemaking and adjudication; and (4) define the scope of
judicial review. Courts may find Services to be “arbitrary and capricious” when litigation reveals
that they did not properly address APA procedures, provide adequate public participation, or
adequately support the agency decision. Staff working on HCP development should ensure
adherence to all procedural and public review requirements. They should also document in an
administrative record all actions taken and the rationales to support the findings and decisions
made in the HCP process.
1.3.6 Tribal Consultation and the ESA
Both Services have policies (Secretarial Order 3206 for FWS and NOAA Administrative Order
218-8 for NMFS) (see the HCP Handbook Toolbox) conferring significant responsibilities to
consult with tribes when ESA actions may affect Indian lands, tribal trust resources, or the
exercise of American Indian tribal rights. These policies require the Services to make efforts to
establish effective government-to-government working relationships with tribes to achieve the
common goal of promoting and protecting the health of ecosystems on Indian lands. Whenever
the activities under an HCP may impact tribal trust resources, the exercise of tribal rights, or
Indian lands, we must consult with and seek the participation of the affected Indian tribes to the
maximum extent practicable. This includes providing affected tribes with adequate opportunities
to participate in data collection, consensus seeking, and other relevant HCP processes.
If field staff do not already have an established working relationship with the affected tribes, they
must work with their Regional HCP Coordinators and Regional Tribal Liaisons to ensure
outreach to all potentially affected tribes, including those with ancestral lands in the HCP plan
area. Government-to-government consultation with the tribes is not to be done as part of the
general public participation process under NEPA or section 10 of the ESA, but as its own
separate process. The Services can request tribal consultation before or concurrent with the
general public review process, but we recommend reaching out to potentially affected tribes as
early in the HCP process as reasonable. When tribes are unable to respond to initial requests for
participation due to staffing and workload issues, the Regional Tribal Liaisons strongly
recommend the Services make at least a second attempt to contact the affected tribes. These
tribal consultation policies do not prohibit the Services from proceeding with an HCP if a tribe
does not respond to good-faith outreach efforts.

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1.3.7 Other Related Process Laws
Federal Advisory Committee Act (FACA)
The FACA (see the HCP Handbook Toolbox) was enacted in 1972 to establish the rules under
which Federal agencies can convene or participate in advisory committees. It is a “sunshine” law
to ensure public awareness of and participation in Federal agency decisions that rely on advice
from committees they convene. The FACA emphasizes processes for open meetings, chartering,
public involvement, and reporting. Typically, advisory committees involved in an HCP process
are convened by and advise the applicant and are not subject to FACA. The Services must adhere
to FACA if they choose to convene an advisory committee related to HCP development and a
permit issuance decision if that committee has even one member who will represent a nongovernmental entity. Committees whose members are comprised of all government
representatives generally do not have to comply with FACA. For an FWS summary of FACA go
to the HCP Handbook Toolbox).
Freedom of Information Act (FOIA)
The FOIA (see the HCP Handbook Toolbox) was enacted in 1966 and is also a “sunshine” law.
It defines the rules under which previously undisclosed information held by the Federal
Government must be disclosed when a member of the public formally requests it. Before a draft
HCP is made public, either by the applicant or through the public comment process, some
information in the HCP may be considered proprietary. At this stage, before responding to any
FOIA request for a draft HCP or other information provided by the applicant, we should give the
applicant an opportunity to identify any proprietary information and provide a justification for
withholding such information from release under FOIA. However, it is the Services’
responsibility to make the final determination as to whether to withhold any information under a
FOIA exemption. Services-generated internal documents that are pre-decisional or deliberative
in nature and have not been shared outside of the agency are usually withheld until a permit
decision is made. However, such documents must be released, if requested, after the agency
makes the permit decision (unless one or more FOIA exemptions apply).
Privacy Act
The Privacy Act was enacted in 1974 and governs the protection of private information of
individuals. We must protect personal identifying information (e.g., social security and tax
identification numbers, personal home or cell phone numbers, dates of birth, etc.) given to us in
application forms or other documents that are offered for public review or released under FOIA.
For more information on the rules of the Privacy Act go to the HCP Handbook Toolbox.
1.3.8 A List of Related Natural Resource Laws
Depending on the circumstances of each proposed HCP, a number of other resource laws may
apply. The following list includes laws that the Services most commonly encounter during the
HCP process, but this list is not all-inclusive. Later in this Handbook we discuss how some of
these laws are integrated with the HCP process. Links for the following laws are in the HCP
Handbook Toolbox.
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●
●
●
●
●
●
●

— Migratory Bird Treaty Act
— Bald and Golden Eagle Protection Act
— Marine Mammal Protection Act
— Clean Water Act
— Marine Sanctuaries Act
—Magnuson-Stevens Fishery Conservation and Management Act--Essential Fish Habitat
Coastal Zone Management Act

1.4 How to Use the HCP Handbook
1.4.1 Purpose of the Handbook
The purpose of this Handbook is to instruct Services staff how to assist applicants with
developing HCPs in an efficient and effective manner while ensuring adequate conservation for
listed species. It guides staff, phase by phase, through development, implementation, and
environmental compliance, using streamlined approaches whenever possible. It draws on lessons
learned and past experiences to apply relevant regulations and policy and to navigate the various
processes for completing an HCP and the permit decision process. You can obtain other
resources for guidance on the HCP program from the Services’ National and Regional HCP
Coordinators and the HCP course at the FWS National Conservation Training Center (NCTC)
(see the HCP Handbook Toolbox). The HCP course at NCTC is also open to those outside the
Services who are interested in learning how to use the HCP program. Although this Handbook is
designed for Services staff, it can be helpful to other HCP practitioners, such as applicants,
consultants, and partners.
1.4.2 Organization of the Handbook
After Chapter 2, which provides an overview of the HCP planning process, this Handbook is
organized into four parts to correspond with the four main phases of the process: (1) Preapplication; (2) Developing the HCP and Environmental Compliance Documents; (3)
Processing, Making a Permitting Decision, and Issuing the Incidental Take Permit; and (4)
Implementing the HCP and Compliance Monitoring. Phase 1 chapters on the pre-application
phase provide guidance on considerations before embarking on the development of an HCP.
Phase 2 chapters focus on the many considerations and tasks necessary to prepare a draft HCP
and associated environmental compliance documents. They also include important guidance on
how to conduct the various required impact analyses. Phase 3 chapters lead the Services’ HCP
practitioner through the steps to review and process a permit application, make a permit decision,
and issue the permit. The Phase 4 chapter describes how to monitor for compliance during
implementation of the HCP, as well as how to address issues that may arise.
In some cases, the HCP development and permit decision processes can be complex and lengthy.
To address those types of circumstances, as well as more typical situations, we include additional
information and discussion in appendices of this Handbook and the HCP Handbook Toolbox.
The Toolbox includes important resources, such as more detailed instructions, examples,
templates, regulations, and other useful tips and advice. The appendices and HCP Handbook
Toolbox are equally important to understanding the HCP program as the information in the body
of the Handbook.
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As noted at the beginning of this chapter, the HCP program evolves in response to lessons
learned based on our experience in implementing the program, policy or regulation changes, new
information, new technical capabilities for analyzing and monitoring, and new or improved
conservation practices. Thus, this Handbook will be a living document to keep up with the
program’s evolution. We also will update the Toolbox, as needed. We will post notifications of
any changes to the Handbook or Toolbox on the FWS web site for the HCP program where these
are housed. Also, the Regional HCP Coordinators will alert field staff to Handbook and Toolbox
changes by email or on regular conference calls.
1.4.3 Tips for Using the HCP Handbook
To access relevant documents in the Toolbox, click on hyperlinks in the Handbook. You can also
navigate to different chapters and their sections within the Handbook by clicking on hyperlinks
in the Table of Contents and within the text.
The Glossary in the back of the Handbook contains an extensive list of definitions, as well as
sources of the definitions. We also provide a list of acronyms at the front of the Handbook. To be
user friendly, we also remind the reader of the meaning of an acronym every time it is used for
the first time in a chapter.
Most chapters contain “Helpful Hints” that are called out in separate boxes. Helpful Hints are
meant to assist you in navigating a particular part of the HCP process. They include information,
guidance, or considerations that are critical to keep in mind.

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Chapter 2: Overview of the HCP Planning Process
2.1
2.2

Phases of HCP Planning
Considerations for Successful HCP Planning
2.2.1 Understanding the Regulations
2.2.2 Innovation Considerations
2.2.3 Going Fast by Starting Slowly
2.2.4 Partnerships, Collaboration, and Communication
2.2.5 State and Local Coordination
2.2.6 Good Communication
2.2.7 Well-written Documents
2.3
Tips for Success
2.4
Factors Influencing How Long the Process Takes
2.5
Roles and Responsibilities
2.5.1 Applicant
2.5.1.1 Consultants and Contractors
2.5.2 Services
2.5.2.1 Field Offices
2.5.2.2 Regional Offices
2.5.2.3 Headquarters
2.5.2.4 Legal Counsels
______________________________________________________________________________
2.1 Phases of Habitat Conservation Plan Planning
The Habitat Conservation Planning (HCP) process can be divided into four phases: (1) Preapplication; (2) Developing the HCP and Environmental Compliance Documents; (3) Processing
the Application, Making a Permit Decision, and Issuing the Incidental Take Permit; and (4)
Implementing the HCP and Compliance Monitoring. The HCP process is not linear, it is iterative
and some steps should occur concurrently.
Phase 1: Pre-application is described in:
Chapter 3 Getting Started
Chapter 4 Communicating and Coordinating
During phase 1, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service
(Services) provide guidance and assist potential applicants in deciding whether an incidental take
permit is appropriate and if so, what type and scale of HCP would best fit the applicant’s needs.
The Services determine the level of National Environmental Policy Act (NEPA) (see the HCP
Handbook Toolbox) analysis required based on the scale of the HCP and the anticipated impacts
of covered activities on the human environment. The Services also explain to the applicant the
HCP process; discuss compliance with other environmental laws [e.g., NEPA, National Historic
Preservation Act (NHPA), and intra-Service section 7]; provide advice on selecting contractors;
identify training opportunities; discuss section 6 HCP planning grants; and discuss developing
timelines, determining HCP plan governance, identifying stakeholders, identifying climate
change effects, etc. During phase 1, the Services also provide advice as to how to avoid common
pitfalls that may delay HCP development or incidental take permit issuance later in the process.
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Phase 2: Developing the HCP and Environmental Compliance Documents is described
in:
Chapter 5 Land Use Activities and Alternative Actions to the Taking
Chapter 6 Identifying the Plan Area and Permit Area
Chapter 7 Identifying the HCP Species and Information Needs
Chapter 8 Calculating Take from Land and Water Use Activities
Chapter 9 Developing a Conservation and Mitigation Strategy
Chapter 10 Monitoring and Adaptive Management
Chapter 11 Implementation Costs and Funding
Chapter 12 Net Effects and Permit Duration
Chapter 13 National Environmental Policy Act Compliance
During phase 2, the results of all of the upfront planning under phase 1 are applied while
assisting the applicant with developing their HCP, as well as concurrently developing the
environmental compliance documents (e.g., NEPA, NHPA, and intra-service section 7
consultation) (see the HCP Handbook Toolbox) as well as coordination with your legal counsel,
as appropriate. Throughout this phase, the applicant may need to revise certain aspects of their
HCP as updated information becomes available or as the scope/evaluation is narrowed or
expanded. The goal of phase 2 is for the applicant, with our guidance and assistance, to prepare a
draft HCP that is statutorily complete and meets the incidental take permit issuance criteria. At
the conclusion of phase 2, the majority of the burden shifts from the applicant to the Services.
Phase 3: Processing the Application, Making a Permit Decision, and Issuing the
Incidental Take Permit is described in:
Chapter 14 Completing and Reviewing the Permit Application and NEPA
Compliance Documents
Chapter 15 Finalizing the HCP and Environment Compliance Documents
Chapter 16 Making a Permit Decision
During phase 3, the Services begin the HCP public review and permit decision processes. This
includes developing a “findings” document that presents the basis for the incidental take permit
decision. Although stakeholders and other members of the public are usually engaged early in
HCP development, the public has the opportunity at this point to provide comments on the HCP
and NEPA documents during public comment periods. The length of this phase depends on the
level of required environmental compliance (i.e., NEPA categorical exclusion, environmental
assessment, or environmental impact statement) and the time required to resolve any remaining
issues with the HCP. As long as fatal flaws are not identified, after the public comments are
received and addressed, the applicant’s HCP is revised as necessary and finalized along with the
environmental compliance and decision documents. Phase 3 is concluded by the Services’ permit
issuance decision.

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Phase 4: Implementing the HCP and Compliance Monitoring is described in:
Chapter 17 Implementing the HCP, Compliance Monitoring, and Making
Changes, if Necessary
Phase 4 is the HCP implementation phase. This is perhaps the most important phase because this
is when the permittee proceeds with implementing the HCP conservation strategy and their
covered activities. This phase includes implementing the avoidance, minimization, mitigation,
monitoring, and reporting activities. We highly recommended that our staff maintain close
coordination and communication with the permittee throughout implementation to cooperatively
ensure the HCP is a success. HCPs are collaborative conservation tools for threatened and
endangered species, and it is during implementation that the rewards of the conservation
planning process are realized.
2.2 Considerations for Successful HCP Planning
Frequent and open communication between the Services and the applicant is key to successfully
planning, developing, and implementing an effective HCP. We recommend that Services’ staff
spend as much time as necessary upfront guiding the applicant to fully outline how their HCP
will be developed, explain the regulations and requirements, establish good communications,
identify stakeholders, and establish realistic timelines before starting on the content elements
required for the HCP itself. Diligent, thorough, and thoughtful planning from the outset will save
time in the long run.
2.2.1 Understanding the Regulations
Services staff should have a strong working understanding of the regulations and requirements
(see the HCP Handbook Toolbox) necessary for HCP approval and permit issuance (including
the NEPA and Endangered Species Act (ESA) intra-service section 7 processes) because they are
responsible for advising applicants on developing HCPs that will meet section 10 issuance
criteria. It is also important that staff help the applicant clearly understand the pertinent
regulations and requirements. The more the applicant knows about the process, the less likely we
are to run into problems and delays.
There are many helpful tip sheets that FWS Regional offices have developed (e.g., compliance
checklists, process for publishing Federal Register notices, etc.) to help make working through
the process easier. We recommend you review the HCP Handbook Toolbox then ask a Regional
HCP Coordinator or appropriate NMFS contact for help if you cannot find what you need.
2.2.2 Innovation Considerations
One of the strengths of the HCP program is its flexibility. While looking at past HCPs can be
instructive, keep in mind that almost every HCP will have its own set of unique circumstances.
Be open to fresh ideas that may fit the particular needs of each situation. In each case, the
Services and applicants have the opportunity to develop innovative approaches and unique
solutions to resolve specific challenges.

2-3

We encourage creative thinking to resolve complex issues during HCP development. However,
carefully consider the practicality and potential unintended consequences before embarking on
any creative idea or concept, especially one that may be groundbreaking or precedent-setting or
that may adversely impact conservation efforts elsewhere. Carefully weigh the positive benefits
of a potential creative approach against the possible negative repercussions, as well as the
complexity of its implementation, legality, workload burden, and conservation contribution.
Describe how the concept will be implemented in detail to ensure that it will be successful.
The answers to the following seven questions may help to determine whether a specific idea or
approach has merit for inclusion in an HCP:
1.
2.
3.
4.

Will it meet statutory or regulatory requirements?
Will it streamline permit issuance?
Will it help or hinder permit implementation or enforcement?
Will it increase conservation outcomes and contribute to species recovery or contribute to
the decision to preclude listing?
5. Are there any legal constraints or risks with it, and if so, which party will incur the
constraints or risks?
6. Will it affect staff workload for the Services or applicants/permittees either before or after
permit issuance? If so, how and when?
7. Will it establish a legal or other precedent or practice that could cause difficulties for
future HCPs or other conservation efforts?
2.2.3 Going Fast by Starting Slowly
During phase 1, instead of quickly launching into the technical aspects of the HCP, work with
the applicant to carefully plan how the HCP will be managed and governed as it is being
developed and implemented. This is especially important for development of landscape-scale
HCPs. Taking the necessary time to carefully plan in advance can save time and money when
developing and implementing an HCP. Starting slowly results in developing the HCP more
efficiently and expeditiously to meet the applicant’s needs, and it helps to get effective
conservation on the ground more quickly.
The first step to success includes getting the right people in place and building a highly
functioning team. The applicant should carefully and thoughtfully select their HCP project
manager and consultant. The project manager does not need to be a biologist. In fact some of the
most successful are not. The HCP consulting firm should have a strong background in science
and HCP development. Likewise, the Services should assign good communicators and
negotiators who are knowledgeable and have experience commensurate with the size and
complexity of the HCP. The Services should also ensure that the NEPA consulting firm, if used,
has the requisite knowledge and experience to prepare the NEPA document. If the team includes
stakeholders, it is equally important that the representatives have similar skill sets and are
committed to following through to the end of the process. Having the right people in place is
vital to successful HCP development and planning.

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The next step includes identifying the governance of HCP development, such as deciding:
(1) what to address in the HCP; (2) what are the mechanics of HCP development (who is
responsible for what, where, when, how much will it cost, what is the conflict resolution process,
meeting management, record keeping; how will the team make decisions, and if applicable, what
is the level of involvement by elected officials and managers, etc.); (3) at what key stages will
preliminary decisions or approvals be sought (applicant and Services’ management); (4) what are
the roles of stakeholders; and (5) what are the mechanics of HCP implementation (e.g., how to
handle exchange of funding, resources, procedures, organizational structure, etc.)?
This concept is discussed in more detail in Chapter 3.6.
2.2.4 Partnerships, Collaboration, and Communication
Although some listed species are located on wildlife refuges, national parks, military bases, and
other Federal lands, the majority of them are on non-federal lands. The Services and other
Federal agencies cannot recover those listed species alone. Flexible, creative partnerships
between the public and private sectors that consider the best available science, apply good
judgment, and focus on collaboration are key to reconciling the impacts of non-Federal
development and land use activities. It occurs in a manner that is compatible with the
conservation needs of affected species and with the applicants’ desire to do what they need or
want to do – while complying with the ESA.
To ensure that those partnerships benefit species, we encourage applicants to develop
conservation plans that are consistent with the recovery plans and contribute to the recovery of
covered species. We can provide examples and technical support to help prepare effective
conservation approaches that will also ensure that the HCP can meet permit issuance criteria.
Field offices have a wealth of expertise with listed species and the HCP process. Regional offices
are ready to provide guidance to field office staff when needed to help complete the HCP process
more quickly and effectively.
The Services also use the NEPA process to involve other stakeholders, including tribes, other
affected individuals, the public, non-governmental organizations (NGOs), and anyone that would
have an interest in the project to identify concerns early in the HCP development process.
2.2.5 State and Local Coordination
Some States have laws similar to the ESA and prohibit take of State-listed species, or they have
laws similar to NEPA, and most States have “sunshine laws” similar to the Freedom of
Information Act. We recommend the appropriate State agency or agencies be involved early in
the process to facilitate and streamline coordination and information exchange.
Under section 6 of the ESA, States with adequate and active cooperative agreements are our
partners in conserving listed species. The Services should discuss this partnership with
prospective applicants and strive to accommodate State requirements in the development of
HCPs.

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Our staff should also cooperate with States so that their concerns for non-ESA-listed species are
considered in HCP planning. We should encourage applicants to include State-recommended
conservation measures in HCPs. However, even if a proposed incidental take permit application
and its accompanying HCP complies with the ESA, the HCP still may not fully satisfy all State
management goals in all instances. The applicant is required to comply with all other applicable
Federal, State, and local laws.
2.2.6 Good Communication
One of the many keys to successful HCP planning is building a strong relationship with the
applicant, their consultants, and stakeholders. It begins with effective and efficient
communication. Maintaining open lines of communication builds trust and cooperation while
reducing the chance of being blindsided by concerns or issues that could lead to delays. Good
communication also helps to build cooperation among stakeholders involved in the HCP process.
Within the Services, good internal, cross-program communication within the field office and
between the Regional office is critical to the delivery of high quality technical assistance to
applicants with developing the conservation program under the HCP. This will ensure the
maximum conservation benefit to the covered species and to provide the best recommendations
to the applicant so that the applicant will receive a permit that allows for their activities to
proceed while protecting covered species and their habitats. Communication with the Regional
office on HCP policy is important to ensure consistency across the nation.
2.2.7 Well-written Documents
Since many incidental take permits have long permit durations and may extend beyond the
careers of those who were involved in the HCP planning effort, it is important that the HCP,
incidental take permit, and associated documents are written clearly so that future users can fully
understand how to implement the HCP and to ensure it will meet the stated goals and objectives.
Although all parties actively developing the HCP may fully understand what is expected and
anticipated, future responsible parties will only have what is written in the HCP, permit, and
associated documents to guide them. Be mindful of the future when reviewing the draft HCP and
its associated documents. If it is not clear, recommend revisions to clarify specific sections or to
better explain the intent and rationale behind decisions or approaches.
It is equally important that the Services’ decision documents are clear, well-written, and meet all
legal requirements. Decision documents should provide a rational connection between the facts
we used and the decisions we made. We should inform applicants of this standard and strongly
encourage them to ensure their documents are well-written as they will be part of the
administrative record supporting the Services’ final decisions. When our documents are made
available to the public, we are evaluated by their quality.
We must show our work (e.g., calculations) and clearly explain the chain of logic that led us to
our decision. Our documents should be easily understood, well-written, well-organized, and
demonstrate scientific integrity. Well-written documents developed by the applicant and the
Services ultimately save time during the various internal review and surname processes. Poorly
written documents are more prone to litigation, which costs time, money, and conservation
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potential for the applicant and us. Litigation also may delay HCP implementation or force
abandonment of the HCP, which in turn eliminates the potential conservation benefits of the
plan.
2.3 Tips for Success
As discussed above, successful HCP planning often requires consensus building, negotiation, and
integration of numerous interests, especially for large-scale, regional planning efforts. Also,
biological issues are not always clear-cut and sometimes are subject to interpretation. Combine
flexibility, creativity, good science, and good judgment when providing technical assistance to
HCP applicants. The following "rules of thumb" should be helpful to you in meeting these
challenges:
● Use good science: Services staff should involve the applicant in assembling the best
available scientific and commercial information. Stay abreast of new biological
developments and state-of-the-art techniques and research. In coordination with the
applicant, interpret the information, identify key assumptions and uncertainties, and use
best practices to resolve uncertainty to the extent feasible during analyses, planning, and
in the design of mitigation and adaptive management. Although the Services cannot
require that applicants actively work toward recovering species, we should encourage
applicants to develop HCPs that produce a net conservation gain that contributes to
recovery of the species. Remind participants that they would benefit from species
recovery, which leads to delisting and removal of prohibitions and other related
regulations. The Services should examine recovery plans and other relevant documents to
help identify strategies to minimize and mitigate the effects of the covered activities.
When recovery plans are not available or have not been updated to include the best
available science, contact recovery teams, State wildlife agencies, or other species experts
to obtain information (i.e., 5-year reviews, recovery outlines, updated information on
climate change effects) pertinent to HCP development. When appropriate, staff should
engage in internal cross-program coordination by seeking assistance or more active
participation by recovery team members and species leads.
● Know the regulations: Keep up-to-date on applicable statutes and policies, including the
ESA, its implementing regulations, and court decisions. Understand the authorities and
limitations of the ESA and NEPA. When in doubt, seek input from your legal counsel.
Access to legal counsel can be helpful, especially to advise and review documents during
key stages in HCP development.
● Remember the HCP is the applicant's document: Keeping in mind that the HCP is the
applicant's document, we cannot force requirements into the HCP that applicants are not
willing to undertake. Instead, we should collaborate with the applicant to develop the best
strategy for the HCP that will meet permit issuance criteria. Provide technical advice and
work with the applicant through the process discussed in this Handbook. Applicants more
readily accept recommendations and requirements when they see the logical basis for
them.

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● Clearly understand the proposed action: It is important to work with the applicant to
fully understand the intricacies of their proposed action. This can be accomplished by
breaking down the proposed action into components, which will help identify the covered
activities and the resulting range of possible impacts to listed species. More information
can be found in Chapter 5.3.
● Identify important issues early: Work with the applicant to get important issues on the
table as early as possible in the HCP development stage. Help the applicant understand at
the outset the section 10 issuance criteria and any regulatory or biological issues that they
will need to address in the HCP. Ensure frequent and open communications. Be
transparent in decision-making.
● Work with the applicant to develop a conservation strategy that offset impacts:
Some HCP conservation strategies and mitigation approaches are relatively
straightforward, while those for large-scale, regional planning efforts may be quite
complicated. Because flexibility is key, we offer very few ironclad rules for mitigation
programs. However, we do have a few rules that must be met. Applicants must minimize
and mitigate the effects of their actions to the maximum extent practicable and the
measures must be manageable and enforceable. Also, the applicant must clearly articulate
the biological goals and objectives in the HCP with measurable success criteria.
● Coordinate frequently with the Regional office: The Services field and Regional
offices should coordinate regularly throughout the HCP process and work as a team. This
is essential to ensure timely reviews of documents, ensure consistency with past and
current HCP efforts, resolve issues, make leadership aware of any issues they may need
to address, and keep abreast of any policy changes and novel approaches. Do not hesitate
to contact Regional HCP Coordinators with any question or for guidance on developing a
HCP. No question is too trivial or unsophisticated.
● Communicate early and frequently with your legal counsel: The Department of the
Interior (DOI) Solicitor's Office and the National Oceanographic and Atmospheric
Administration (NOAA) General Counsel’s Office, Commerce Department, collectively
referred to as legal counsel in this Handbook, serve as legal counsel to the Services. It is
important to identify and address potential legal concerns early in the development of the
HCP, particularly if it is a controversial or complex plan. Before contacting your legal
counsel, first contact your Regional HCP coordinator to help coordinate legal review.
Together with your legal counsel, determine how best to communicate issues or concerns
to ensure they are engaged as soon as possible. At a minimum, early legal review will
help the Services and the applicant to better prepare documents that are legally sufficient
and save time.
● Ensure close coordination between FWS and NMFS: In cases where our jurisdictions
overlap for an HCP, the agencies must closely work together to provide guidance to the
applicant and coordinate reviews and approvals.
● Include State wildlife agencies early: Encourage the applicant to include affected State
wildlife agencies at the beginning of HCP development. The State wildlife agencies share
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management responsibilities for many species, can provide excellent scientific and
technical expertise, and often are more familiar with the local politics and issues. Some
States have their own ESA statutes and NEPA equivalents that we should consider during
HCP development.
● Include tribes early: If an applicant’s project could affect tribes, tribal or ancestral
lands, or tribal trust resources, coordinate with your Tribal Liaison and begin formal
Government-to-Government consultation early in development of the HCP and separate
from the NEPA public review process. Tribal interests are important. Do not assume
tribes are not interested if you do not receive an immediate response to the consultation
letter. Continue to reach out to affected tribes. Specific information about how to
coordinate with tribes can be found in Chapters 1.3.6 and 4.1.3 as well as in the HCP
Handbook Toolbox .
● Clearly define stakeholders roles: Specifically, describe who will be part of the process.
Work with the applicant to determine their roles and limitations. Also, determine when
stakeholders will be involved in the HCP process. Describe what, if any, role they have in
governance or guiding the applicant.
● Consider all applicable laws early in the process: At the beginning of the HCP
process, explain to the applicant the Services' section 7, NEPA, and NHPA obligations
for issuing an incidental take permit, as well as other laws such as MBTA and BGEPA, if
applicable (see the HCP Handbook Toolbox). Always consider compliance with these
laws and HCP development as concurrent, integrated processes, not as independent and
sequential.
● Engage the applicant’s and Services’ decision-makers early in the process: Decide
when and how they will be engaged in the process. Document their role(s) in the
governance process and what information they will need to make the decision. Determine
what role they will have in resolving conflicts.
● Read and reread this Handbook: This tip has fundamental merit. Read through the
entire Handbook before embarking on your first HCP. Even if you already have
experience with HCPs, this Handbook includes new approaches; clarifies policies and
processes that can greatly help you navigate the HCP process; provide valuable guidance
to applicants; and most importantly, lead to conservation benefits for listed and at-risk
species.
2.4

Factors Influencing How Long the Process Takes

How long the process takes depends on several factors, such as:
● The size and scale of the proposed HCP, including the scope of the proposed covered
activities;
● The complexity of the HCP (e.g., the number of species, stakeholders, tribes, and
applicants; long or short permit duration; consideration of climate change effects and

2-9

●
●
●
●
●
●
●
●

other environmental changes, and interactions among them; extent of the conservation
program; mitigation structure; funding assurances; etc.);
The thoroughness of phase 1 pre-planning by the team (applicant, consultants, Services,
etc.);
The allocation and commitment of resources (staff and funding) by the applicant and the
Services;
The timing and level of engagement by the Services in the applicant’s HCP preparation
effort;
The availability of necessary data or information to help us make an informed decision;
The level of uncertainty and controversy related to the HCP;
The number and composition of stakeholders;
The extent of legal review required by the Services’ solicitors and general counsel of the
HCP and decision documents; and
Completion of the NEPA compliance process, and other factors.

All of these factors come into play and should be addressed at the very beginning of the HCP
process, which is described in Chapter 3. Advanced planning, good communication and
governance, setting goals and expectations, establishing milestones, and jointly developing an
HCP completion timeline are some of the keys to success. Advice and recommendations are
threaded through the Handbook to assist you with your effort to guide the applicant down the
most efficient planning path and how to avoid common pitfalls.
The following Gantt chart provides an idealized timeframe for HCPs depending on the level of
NEPA analysis required, assuming that every step proceeds perfectly. However, every HCP is
different and these timeframes may be shorter or longer depending on the factors described
above, as well as the unique set of circumstances pertaining to the HCP.

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Table 2.4a: Hypothetical Timeline for HCPs by NEPA Category.

(Note: This is an approximate timeline to show relative lengths of various tasks and the sequence
of tasks. Each HCP timeline is different.)

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2.5

Roles and Responsibilities

Table 2.5a: This table highlights the roles and responsibilities of the various stakeholders in
the HCP process.
Role
Task
Services

Applicant/
permittee

Consultant

Outside
expert

Planning/Development of the HCP
1) Decision to develop HCP

Support

Decide

Support

2) Identify plan area and species

Contribute.
Support. Prelim.
Approval. Review

Decide

Support

3) Identify covered activities

Contribute.
Support. Prelim.
Approval. Review

Decide

Support

4) Assess take caused by covered activities

Contribute.
Support. Prelim.
Approval. Review

Decide

Support

5) Develop biological goals and objectives

Contribute.
Support. Prelim.
Approval. Review

Decide

Write

Contribute
Support
Review

6) Identify conservation actions to meet goals
and objectives

Contribute.
Support. Prelim.
Approval. Review

Decide

Write

Contribute
Support
Review

7) Develop reserve design/conservation strategy

Contribute.
Support. Prelim.
Approval. Review

Decide

Write

Contribute
Support
Review

8) Develop monitoring and adaptive management
program

Contribute.
Support. Prelim.
Approval. Review

Decide

Write

Contribute
Support
Review

9) Develop funding strategy (estimate costs,
assurances, etc.)

Support. Prelim.
Approval. Review

Decide

Write

Write
Contribute
Support
Review

Decide

Contribute

10) Determines if the permit application is
statutorily complete.

Implementation of the HCP
10) Implement conservation actions

Support. Prelim.
Approval. Review

Implement

Contribute.
Support

Support

11) Implement the effectiveness and compliance
monitoring program activities

Support. Prelim.
Approval. Review

Implement

Contribute.
Support

Support

12) Update understanding and models to inform
future management decisions

Support. Review

Implement

Contribute.
Support

Support

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Write=
Decide =
Implement=
Contribute=
Review =
Support=
Prelim. Approval=

Writes the document
Makes decision
Responsible for implementing
Contribute to effort
Review and comment
Technical support provided as needed, could be advise, data, etc.
Preliminary approval required by this entity at appropriate planning stages

2.5.1 Applicant
The applicant’s first responsibility is to decide whether an incidental take permit is the right tool
under the ESA to meet their need. If the applicant chooses to seek an incidental take permit, they
must prepare an HCP as part of the application. Though the HCP is generally developed in
collaboration with the Services, the development of an HCP is the responsibility of the applicant.
The most successful HCPs are those where the Services are involved early, provide guidance and
technical assistance, and are invited to stay engaged throughout the HCP development process.
To request an incidental take permit, an applicant must submit a section 10 permit application
package. The complete application package includes:
1. for FWS, an endangered species permit application form (3-200-56) and permit
processing fee; or for NMFS, one of three application forms, depending on the species
likely to be taken – Marine Mammals, Sea Turtles, or other listed species(see application
links in the HCP Handbook Toolbox). NMFS does not require a processing fee;
2. draft HCP; and
3. if applicable, draft implementing agreement.
Recommend to applicants that they wait to submit the full application package, including the
application fee, until we have preliminarily reviewed the HCP and concluded that it should be
adequate to meet all the incidental take permit issuance criteria.
2.5.1.1 Consultants and Contractors
Since applicants typically do not have in-house knowledge or experience with the HCP process,
they often hire environmental consultants or contractors to assist with preparing the HCP. If an
applicant elects to hire a consultant, recommend that they choose carefully and thoughtfully. It is
important for applicants to actively participate in preparing the HCP along with their consultants
and stay engaged with the Services. Applicants should manage their consultants in a manner that
ensures efficient and timely development of an HCP that will fulfill the stated goals and meet the
incidental take permit issuance criteria. While consultants may write the HCP, any permit issued
will be to the applicant, who is responsible for fully implementing the HCP and the permit terms
and conditions.
The most successful applicants and consultants have a thorough understanding of the incidental
take application process and requirements under section 10 of the ESA, the requirements and
standards of both the ESA and NEPA, and what is required to develop an adequate HCP. Many
applicants prepare an HCP only once, so they may be unfamiliar with the HCP process. Help
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applicants to become informed on the process and familiar with the expectations for developing
the HCP. One approach we suggest to help applicants become informed about the process and
learn the expectation for developing the HCP is to take a short course offered by the FWS at the
National Conservation Training Center (NCTC) or a similar course offered by consultants or
other parties. New applicants may also talk to others who have completed the HCP process to
receive advice and suggestions. However, we should caution applicants that no two HCPs are
alike. Each HCP is tailored and negotiated to meet specific project or species requirements,
which may not be appropriate in other circumstances. Finally, recommend to applicants that they
hire consultants or contractors with prior experience developing HCPs for which incidental take
permits have been issued.
2.5.2 The Services
The NMFS Headquarters office located in Silver Spring, Maryland is responsible for HCP
planning and permit processing for marine mammals, sea turtles while in the ocean, and other
listed species under NMFS jurisdiction except anadromous fish on the West Coast. Within the
West Coast Region of NMFS, there are 12 local offices that have responsibilities for HCP
planning concerning anadromous fish in that Region.
In this Handbook, we refer to these offices as NMFS field offices, as they are largely equivalent
in responsibilities to the FWS field offices. The NMFS field offices are under the direction of the
West Coast Regional office. Other permits are processed by the NMFS Headquarters office.
These NMFS field offices, the West Coast Regional office, and the NMFS Headquarters office
are responsible for working with applicants on the development of HCPs applicable to their
species responsibilities.
The HCP organizational structure for FWS is different from NMFS. Because more HCPs fall
under the jurisdiction of the FWS, allocation of the workload is distributed primarily between the
FWS field and Regional offices where the resources and local knowledge is strongest. The roles
of the FWS field, Regional, and Headquarters offices are described in more detail below.
2.5.2.1 Field Offices
FWS Field Offices
The field office is usually the primary point of contact for the applicant. It is important for the
field office to provide guidance to the applicant, lead the process and negotiations, as well as
help find or suggest solutions to challenges throughout the HCP process. However, the HCP is
the applicant’s document. We should not write the plan for the applicant or refuse to consider an
HCP.
The development of an HCP is an iterative, negotiated process and the field office should
continue to provide technical assistance to the applicant throughout. For example, if the field
office staff become aware of emerging science, changes in the status of the species, or new
approaches to conservation of the species or its habitat, they should provide this information and
analysis to the applicant promptly. In some instances, the applicant or stakeholders involved may
be subject-matter experts, and they should openly share information and analyses with the
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Services. The field office should share with the applicant any lessons learned from other HCP
projects and especially any involving the same (or similar) species, habitats, or covered
activities.
A key role of the Services’ staff is to develop, build, and nurture a strong working relationship
with the applicant and their consultants throughout the HCP process. The field office has primary
responsibility for:
● helping the applicant decide if an HCP is the appropriate conservation tool to meet their
needs;
● working with the applicant to develop appropriate biological goals and objectives for the
HCP;
● coordinating with the Regional office when an applicant seeks an incidental take permit;
● providing active guidance to applicants early and throughout the HCP development
process;
● ensuring transparency;
● maintaining coordination and communication between the field office and all parties
early and throughout the process to facilitate development of a legally sufficient HCP and
expedite its review;
● providing the applicant with scientific information regarding the species’ needs,
distribution, habitat, life history, survey methodologies, conservation strategy, and other
relevant information;
● providing the applicants or their consultants with tools such as habitat suitability models,
population viability models, information on climate change effects, GIS data, survey
protocols for detecting species or evaluating habitat;
● coordinating with Landscape Conservation Cooperatives (LCC), the Regional Climate
Science Center, or the local or Regional climate change specialist to help take advantage
of conservation partnering opportunities, and to stay abreast of the latest climate change
information relevant for the HCP effort;
● compiling and maintaining the decision record, the final administrative record, and
keeping the Services’ tracking databases up to date;
● reviewing drafts of the HCP;
● advising the applicant when the HCP is ready for submission as a complete application
package;
● when appropriate, conducting public meetings, reviewing and compiling public
comments;
● briefing decision-makers on key decisions concerning the HCP;
● serving as a link between the applicant and others in the Services, including the Regional
office, Headquarters office, and solicitor's or general counsel’s office;
● initiating internal cross program coordination within the field office to ensure
consistency, increase communication between teams, and to gather the most current
species data or other information;
● maintaining communication up and down the chain of command throughout the
development of the HCP;
○ regularly brief their managers and other program staff within the field office and

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●
●
●
●
●

keep the Regional HCP Coordinator informed, especially regarding any issues
that are likely to be controversial, complicated, or may be elevated (by the
applicant, their consultant, or their attorney),
assisting the Regional office by drafting the public notice, NEPA decision documents,
findings documents, and the incidental take permit;
coordinating with the Regional office on outreach associated with the HCP;
participating in implementation evaluation meetings or reviews established in the HCP
and incidental take permit;
giving permittees guidance as they implement their HCP in accordance with their
incidental take permit; and
ensuring that the permittee is in compliance with their incidental take permit and is
implementing the HCP effectively and appropriately.

We are responsible for ensuring compliance with other Federal laws such as NEPA and NHPA
during the HCP development process. However, we typically do not have adequate staffing and
resources to complete those processes in the time most applicants prefer. Thus, most applicants
fund an independent contractor or consulting firm to expedite preparation of our NEPA or NHPA
documents. In those cases, we must approve the contractor, ensure the contractor has no conflicts
of interest and understands that the Services, not the applicant, will supervise the content of the
NEPA or NHPA document. The Services must closely and frequently coordinate with those
preparing the documents to ensure they will meet our needs. Keep in mind, it is not appropriate
for the same consulting team developing the HCP to also prepare the NEPA documents (see also
Chapter 3.8.2 for more specific information). Expectations should be clearly outlined in the
Statement of Responsibilities and Consultant Disclosure Statement. You can find examples in
the HCP Handbook Toolbox.
Many HCPs are likely to directly or indirectly affect tribes, stakeholders, or third parties. The
field office may help the applicant identify who the most appropriate stakeholders are and may
broker communications between the parties. However, coordination with Tribes cannot be
delegated to an applicant or consultant since it is our responsibility to communicate governmentto-government with tribes (see Chapter 4.1.3). For large-scale or controversial HCPs, the field
office may assist in outreach efforts by conducting public meetings as part of the NEPA scoping
process, answering questions from the public, or educating the public or stakeholders about the
process or objectives of the HCP.
Where appropriate, the field office should strive to ensure their decisions, recommendations,
standards of adequacy, processing, etc. are consistent with implementation of the HCP program
and standards used throughout the country. However, minimization, mitigation measures, or
other species-specific requirements are determined case-by-case. Likewise, the field office must
ensure that the HCP is consistent with other legal requirements.
Early and frequent coordination between the field and Regional offices at important points in the
process is key to streamlining the HCP process. When working with the applicant to develop the
schedule, it is important to incorporate and allocate adequate Regional and legal counsel review
time because the experts in those offices serve the Region, and the FWS solicitor’s office serves
the entire Department.
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The field office routinely prepares but seeks Regional office assistance with: (1) developing the
incidental take permit decision documents; (2) developing the Federal Register notices; (3)
collating and responding to public comments; and (4) preparing the incidental take permit terms
and conditions. The field office and Regional office should communicate regularly to ensure that
all reviews and approvals are progressing in a timely manner.
Because field office staff often has other priorities to manage in addition to assisting with the
development of HCPs, these competing commitments may result in delays with drafting the
necessary documents to complete the HCP process. To address this concern, in Region 2
(Southwest), managers have developed a workload management tool where a Project Plan
Agreement is signed between the Assistant Regional Director and field office Supervisor to
ensure adequate staff time will be allocated to an HCP and manage expectations. Although
required in Region 2, the use of this or a similar tool is voluntary in other Regions. A template of
the workload tool can be found in the HCP Handbook Toolbox).
The June 24, 2014, FWS Service Manual 730 FW1 (see the HCP Handbook Toolbox) allows
incidental take permit signature authority to be delegated to the field office supervisor by the
Regional Director for HCPs that meet categorical exclusion (e.g., low-effect HCPs) and for
incidental take permits for HCPs that meet the environmental assessment requirements under
NEPA. In these cases, the field office closely coordinates with the Regional office, but the tasks
usually assumed by the Regional office to issue the permit are the responsibility of the field
office. This process is described in more detail in Chapters 13-15. Not all regions have delegated
such authority to field supervisors, so check with the Regional HCP Coordinator before
proceeding.
NMFS Field Office
Although most of the same concepts discussed above for FWS apply to NMFS, section 10 permit
approvals have not been delegated to the NMFS Alaska, Pacific Islands, and Greater Atlantic
Regions. These Regions work with NMFS Headquarters on such permits and Conservation
Plans. However, the NMFS West Coast Region has been delegated such authority, and the field
offices in that Region work closely with the Regional office on HCP development.
2.5.2.2 Regional Offices
FWS Regional Offices
The Regional HCP Coordinators are an important resource for HCP related policy interpretation
and guidance. They also help to resolve complex or difficult issues and process the incidental
take permit application (including reviewing the final HCP and associated documents). Another
important role of the Regional HCP Coordinator is to serve as the conduit between Headquarters
and the field office. Regional HCP Coordinators should relay information gained during the
monthly National HCP call to the field to ensure they have the most current guidance available.
Regional HCP Coordinators should hold regular calls with their field offices to facilitate internal
communication, foster team building, and ensure national consistency.

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The Regional office provides policy guidance based on their communication with other Regional
offices and Headquarters. Although major policies are generally well known, interpretations
evolve as we encounter and resolve new issues in implementing a specific policy.
Communication with the field office on HCP policy is critical to providing the maximum
conservation benefit to the covered species and the best recommendations to the applicant.
Regional Coordinators should share this information with their field offices.
Once the field office has determined the draft HCP is statutorily complete, the draft HCP and
decision documents are sent to the Regional office for review. The Regional HCP Coordinators
review the draft HCPs and associated documents. The Coordinators review all draft documents
for legal risk, adequacy and consistency with law, policy, and regulations. If the field office has
communicated early and consistently with the Regional office throughout the development of the
HCP, review of documents are typically smooth and less time consuming than without that
communication. The Regional office provides comments, and suggested or required revisions, to
the field office. The Regional office also coordinates the NEPA process with Headquarters and
the Federal Register to publicly announce and request comments during the NEPA process.
Regional HCP Coordinators are also responsible for facilitating legal counsel review of draft and
final HCPs and related documents. When requesting legal counsel review of an HCP package,
the Regional HCP Coordinator, in conjunction with the field office, should have previously
reviewed the documents and flagged any potential issues that may need close attention (e.g.,
funding assurances, conservation easement language, etc.).
After the public review period closes and the HCP documents have been revised, as appropriate,
to address public comments, the Regional office reviews the field office recommendation to
issue or deny the permit. The field office, legal counsel, and Regional HCP Coordinator work
together to determine whether the HCP and permit application meet the issuance criteria. If the
HCP meets the permit issuance criteria, the Regional office will proceed with final processing of
the application package and issues the permit, unless signature authority has been delegated to
the field office. This includes compliance with NEPA, all public noticing, finalizing the findings
and decision documents. Once all of the documents are finalized and the record of decision
(ROD), finding of no significant impact (FONSI), or environmental action statement (EAS) is
signed (see the HCP Handbook Toolbox), the Regional office will issue the permit to the
applicant. See Chapter 15 for more information.
NMFS Regional Office
Coordination between NMFS field and Regional offices works in much the same way as FWS.
The one exception is that NMFS does not have Regional HCP Coordinators. The field office
must work with a designated Regional staff person for each given HCP and permit.
2.5.2.3 Headquarters Offices
FWS Headquarters Office
The primary role of Headquarters at the FWS is to support the Regional and field offices by
providing guidance on policy, procedures, and precedence to ensure the HCP program is
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implemented consistently across the Nation. This is particularly important concerning nationally
significant or controversial issues or events. Generally, the Regional HCP Coordinator will
contact the National HCP Coordinator at Headquarters with a request for specific guidance. This
request may be as informal as a telephone call or email, or it may involve formal written
correspondence. These discussions may include questions of precedence (e.g., whether a specific
action or process has previously been employed by another Region and if so, what was the
outcome); the advisability of specified actions; or the development of new ideas.
The FWS’s Headquarters office is typically not involved in the development, review, or
permitting of individual HCPs except as requested by the Regional office. In such cases,
Headquarters may assist in resolving disputes or providing advice to facilitate coordination
among Regions.
Headquarters is also responsible for briefing the Director and DOI officials on controversial or
precedent setting issues. Similarly, Headquarters is responsible for responding to requests for
information from members of Congress or from the public. These responsibilities may require
that Headquarters staff request information from the Regions through data calls or through
briefing papers on the topic of concern. Headquarters staff may also be invited to attend meetings
between applicants and DOI officials or members of Congress to answer questions or provide
information on behalf of the HCP program.
Headquarters staff drafts national policy or changes in Federal regulations, as appropriate. This
may involve holding public meetings and convening teams of Regional and field office staff. All
associated documents and public notice requirements are drafted and processed by Headquarters
staff. Regulations and policies pertaining to HCPs can be found in the HCP Handbook Toolbox.
Among the many duties of the National HCP Coordinator is maintaining communication with
the Regional HCP Coordinators. At a minimum, the National HCP Coordinator should hold a
monthly national conference call to discuss issues and share ideas with the Regions relating to
HCPs or other relevant issues. Headquarters staff also responds to questions or requests for
assistance from the Regions. Additional communications with individual regions occur as
needed. These communications help to maintain consistency of application of regulations and
policies where possible and appropriate, while recognizing the unique nature of each HCP and
specific conservation needs of the covered species. Frequent communications also allow the
Regional HCP Coordinators the opportunity to interact with and obtain information from other
Regions who may be working with similar issues and pass this information along to the field
office. Additionally, the National HCP Coordinator helps to prepare and deliver HCP specific
training and provides other related training or technical assistance to the Regions and field, as
needed.
NMFS Headquarters
The NMFS Headquarters office takes the lead on HCPs and incidental take permits for all east
coast, Pacific Islands, and Alaska Region efforts. However, the Headquarters office may delegate
the development, review, or permitting of individual HCPs for the east coast, Pacific Islands, and
Alaska Region. The West Coast Region has been delegated the authority to develop, review, and
permit individual HCPs and permits, so NMFS Headquarters office is typically not involved in
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those activities. Much of the NMFS Headquarters office roles and responsibilities are similar to
the FWS Headquarters, with the exception of having a staff person in the National HCP
Coordinator role.
2.5.2.4 Legal Counsels
The DOI Solicitor's Office and the NOAA General Counsel’s Office serve as legal counsel to the
Services. They are important resources for the Services during the development of an HCP and
the subsequent permit processing. Also, they are our advisors on all legal matters pertaining to
HCP development, NEPA, or other statutory and regulatory compliance. We ask that our legal
counsel provide advice on legal issues or interpretation of statutes and regulations, as well as
conduct timely review of our decision documents to ensure they are legally sufficient.
As mentioned above, it is important that the FWS Regional office or NMFS field offices or
NMFS Headquarters office notify our legal counsel of any issues that may need their review as
early in the HCP development process as possible. Waiting until documents are fully drafted to
involve your legal counsel can cause costly delays, especially if there are legal matters to address
and if the HCP and associated documents are sizable. It makes a timely response difficult which
can result in lost time, money, opportunities to address issues, and diminish trust between the
Services and the applicant. The Regional HCP Coordinators should specifically flag issues of
concern or that particularly need the review and advice of legal counsel.

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PHASE 1: Pre-Application
Chapter 3: Getting Started
3.0
3.1

Introduction
When Are an HCP and an Incidental Take Permit Needed?
3.1.1 What is Incidental Take?
3.1.2 When to Seek an Incidental Take Permit and Develop an HCP?
3.1.3 Considerations for Special Rules under Sections 4(d) and 10(j)
3.2
Avoiding Take and Avoiding the Need for an Incidental Take Permit
3.3
Who Can Apply for an Incidental Take Permit?
3.4
What Types of HCPs and Incidental Take Permits Are Possible?
3.4.1 Single Applicant
3.4.2 Programmatic Plans
3.4.2.1 Challenges, Details, and Opportunities with Programmatic Plans
3.4.3 General Conservation Plans
3.4.3.1 Challenges, Details, and Opportunities with General Conservation Plans
3.4.4 Plan Variations, Multiple Projects, or More Than One Applicant
3.4.5 Combined Section 10 Plans
3.4.6 Integrated Plans
3.4.7 Permit Severability and Implementation Oversight of Programmatic Enrollees
3.5
What Types of Activities Can Be Covered in an HCP?
3.5.1 Otherwise Lawful
3.5.2 Enhancement of Survival Permits Do Not Substitute for an HCP
3.5.3 Accommodating State Requirements
3.5.4 Section 7 Programmatic Consultations
3.5.5 Research or Recovery Permits
3.5.6 No Temporary Authorization of Incidental Take
3.5.7 Advance Mitigation
3.6
Going Fast by Starting Slowly
3.7
Other Compliance Requirements
3.7.1 Section 7 Intra-Service Consultations
3.7.2 Listed Plants and Critical Habitat
3.7.3 Migratory Birds and Eagles
3.7.4 National Historic Preservation Act
3.7.5 National Environmental Policy Act
3.8
Contracted Assistance
3.8.1 Facilitators
3.8.2 HCP and NEPA Consultants
3.8.3 Advice to Applicants on Selecting an HCP Consultant
3.9
Planning Resources Available
3.10 Making and Documenting Decisions
______________________________________________________________________________

3-1

3.0 Introduction
This chapter presents many of the basic considerations that need to be addressed at the beginning
of Habitat Conservation Plan (HCP) negotiations. We cannot emphasize enough the importance
of clarifying issues with an applicant regarding the basic who, what, when, and where in
informal planning at the beginning of the process. This can be as simple as a brief conversation,
but the Services or an applicant may need further study to determine what is needed to begin.
This chapter reviews the key factors that go into HCP planning. We also provide a framework
for “going fast by starting slow” that can help give structure to these early planning discussions.
3.1 When Are an HCP and an Incidental Take Permit Needed?
3.1.1 What is Incidental Take?
Incidental take means any taking otherwise prohibited by the Endangered Species Act (ESA)
(see the HCP Handbook Toolbox) section 9 (including any of the forms of “take” defined in the
ESA), if such taking is incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity. See Chapter 1.3.2 for a full discussion of section 9, prohibited activities. Among
the forms of take, HCPs generally involve “harm” and “harass” situations (see Glossary).
Examples of typical incidental take include, but are not limited to: individuals collide with
structures, fossorial or ground-denning species are entombed, active nests are destroyed, removal
of inactive nest or den trees, removal of forage sources or other necessary habitat resources, and
temporary disturbances like artificial lighting, noise, or vehicle traffic.
3.1.2 When to Seek an Incidental Take Permit and Develop an HCP?
A landowner or project proponent should be advised to develop an HCP and seek an incidental
take permit if they are conducting (or planning to conduct) any type of activity in an area where
ESA-listed species are known to occur and where their activity or activities are reasonably
certain to result in incidental take. While seeking an incidental take permit is a voluntary action
by an applicant, unauthorized take of an ESA-listed species is a violation of section 9 of the
ESA. Therefore, if a landowner or project proponent’s activities will potentially impact an ESAlisted species, they should be advised to conduct the activities in a manner that avoids take, seek
an incidental take permit for take anticipated from their activities, or obtain take authorization
through a different ESA mechanism (e.g., section 7 consultation if there is an appropriate Federal
nexus). Note that if incidental take of ESA-listed species is not anticipated from a landowner or
project proponent’s activities, an incidental take permit is not needed or appropriate. Avoid
processing applications submitted purely “as insurance” when take of ESA-listed species is not
anticipated.
The standard for determining whether activities are likely to result in incidental take is whether
take is “reasonably certain” to occur in considering both the direct and indirect impacts of the
activities. The same standard applied to section 7 of the ESA, as explained in the below excerpt
from the final rule on incidental take statements under section 7 (80 FR 26832) (see the HCP
Handbook Toolbox), should be applied in determining whether take from a proposed nonFederal action is likely:
3-2

As a practical matter, application of the ‘‘reasonable certainty’’ standard is done in the
following sequential manner in light of the best available scientific and commercial data
to determine if incidental take is anticipated: (1) A determination is made regarding
whether a listed species is present within the area affected by the proposed
Federal action; (2) if so, then a determination is made regarding whether the listed
species would be exposed to stressors caused by the proposed action (e.g., noise, light,
ground disturbance); and (3) if so, a determination is made regarding whether the listed
species’ biological response to that exposure corresponds to the statutory and regulatory
definitions of take (i.e., kill, wound, capture, harm, etc.). Applied in this way, the
‘‘reasonable certainty’’ standard does not require a guarantee that a take will result,
rather, only that the Services establish a rational basis for a finding of take. [...] The
standard is not a high bar and may be readily satisfied as described above. See, e.g.,
Arizona Cattle Growers’, 273 F.3d at 1244 (noting that the standard the court applies in
reviewing whether the Services may issue an incidental take statement is a ‘‘very low bar
to meet’’) (see the HCP Handbook Toolbox).
Ultimately, landowners or project proponents need to assess whether take is reasonably certain to
occur as a result of their activities to inform their decision whether to seek incidental take
coverage. The Services should advise project proponents to consider both the direct and indirect
effects of their activities and use the sequential approach described above. Some tools that may
be helpful in establishing whether take is reasonably certain to occur, include species surveys
conducted by qualified biologists; take risk models; FWS’s Information for Planning and
Conservation (IPaC) (see the HCP Handbook Toolbox); expertise of State wildlife agencies,
county, or local government natural resources divisions; or other sources.
Without documentation and public awareness of species presence on a property, the landowner is
left to evaluate for themselves, assuming they might know a listed species occurs on their
property, the potential for incidental take to occur. Although it may exceed the scope of this HCP
Handbook, our attempts to raise landowner awareness of potential listed species can provide
incentives for a landowner to consider their potential legal risk and take the first step to approach
a Service field office and investigate their need for an incidental take permit. We can increase
awareness of general locations of listed, proposed, and candidate species by working with State
wildlife agencies and local governments, as we implement private lands programs, participate in
public outreach events for listing or recovery activity, and other means. If a project proponent
asks the Services whether a species may occur in a project area where suitable habitat is present,
the Services should assist the project proponent. If it is still unclear whether the species may be
present, we may recommend that the project proponent contract environmental consultants to
conduct surveys.
The potential for incidental take might be high for a project that would be built quickly and
occupy most of the property, or most of the listed species’ habitat on that property. The potential
for incidental take may also change through the life of a permit depending on development
phases, habitat trends in dynamic systems, or changes in species distribution in response to
climate change effects. Chapter 7 explores these questions in more depth.
An incidental take permit is not appropriate when the taking serves purposes other than
incidental take (per 50 CFR 17.22, 17.32, and 222.308) (see the HCP Handbook Toolbox).
3-3

Section 10(a)(1)(A) of the ESA provides for enhancement of survival permits (Table 3.5.2). For
example, if a researcher collects a species for scientific research or takes it by harassment during
population surveys, the take might be authorized by a “recovery permit.” In addition to permits
for research or recovery activities, enhancement permits also include safe harbor agreements and
candidate conservation agreements with assurances. The latter two permit options may suit a
landowner’s activities instead of an HCP. Enhancement of survival permits have their own
regulations, policy and guidance, so in this Handbook we address them only in relation to HCPs.
3.1.3 Considerations for Special Rules under Sections 4(d) and 10(j).
Some listed species are subject to alternative regulations that change what is normally prohibited
under section 9. Only threatened species may be subject to a section 4(d) rule and either
endangered or threatened species might be part of an experimental population established under
a section 10(j) rule. Section 4(d) and 10(j) rules specify all of the prohibitions and regulatory
requirements for a species or species population. Using these alternative regulations, the Services
can make broad exceptions to normal section 9 prohibitions and establish special consultation or
authorization requirements under sections 7 and 10. These exceptions, and any alternative
requirements, completely replace the standard prohibitions and regulatory processes.
When an applicant’s project might affect a threatened species or experimental population
governed by a 4(d) or 10(j) rule, these rules may influence HCP development. For example,
depending on how the specific 4(d) or 10(j) rule is written:
● Some species, or populations of the species, that normally would require coverage by an
HCP might not require coverage.
● For a given species, some activities might require coverage in an HCP, while other
activities might be exempted under the 4(d) or 10(j) rules.
Applicants have three options to address species with special rule exemptions in their HCP, as
follows:
● If all take is exempted from project or HCP covered activities, applicants could take
advantage of the exemptions afforded under 4(d) or 10(j) and not include those species in
the HCP. The HCP should explain how the 4(d) or 10(j) rule requirements will be
followed. We should inform applicants of the potential risk that exemptions may change
during the term of their permit. If a 4(d) species is uplisted to endangered status or if all
or part of the 4(d) or 10(j) exemptions no longer apply in the future, then the permittee
would be at risk of section 9 violation for newly-prohibited activities. The permittee
would need to avoid take of species that is no longer exempted and seek a new or
amended incidental take permit;
● If a special rule prohibits only certain activities while others may be exempted, then we
could issue a permit covering only the prohibited activities. This option would have risks
similar to the above option; or

3-4

● Applicants may anticipate potential changes to 4(d) or 10(j) exemptions and instead elect
to address all species and activities in their HCP, as if typical section 9 prohibitions were
in effect. We should recommend that the applicant voluntarily include species with 4(d)
or 10(j) exemptions if changes to the 4(d) or 10(j) exemptions are likely within the permit
term. If an applicant wants incidental take coverage for a species with a 4(d) or 10(j)
exemption, the applicant must develop an HCP that meets the section 10(a)(1)(B) permit
issuance requirements as if no special exemption applies. Assuming that the HCP
adequately addresses the 4(d) or 10(j) species and meets the issuance requirements, then
the species can be included as a covered species on the incidental take permit and all
applicable regulations (e.g., No Surprises assurances) would apply. This would ensure
that if any 4(d) or 10(j) exemptions for HCP-covered activities no longer apply, the
permittee would maintain full ESA compliance for the species and No Surprises
assurances would apply, as such no further action by the permittee (e.g., amendment to
the HCP or incidental take permit, etc.) would be required.
3.2 Avoiding Take and Avoiding the Need for an Incidental Take Permit
An incidental take permit may not be required if a proposed project can be designed to avoid
taking listed species. Projects that may result in harassment, such as interference to a species’
nighttime activity caused by artificial lighting, often can be adjusted to incorporate best
management practices or other measures that would avoid any incidental take entirely. In such
instances, the activity can continue without the landowner’s need to obtain an incidental take
permit.
Although we should encourage applicants to design a project to avoid take whenever possible,
take minimization or compensatory mitigation alone will not substitute for an incidental take
permit if some take is anticipated. However small, no non-Federal project is exempt from the
need to obtain an incidental take permit if we are reasonably certain it will result in an action
prohibited by section 9 of the ESA.
Another source of confusion arises when a minimization or avoidance measure creates a false
impression that harm to a listed species in the project site has been avoided. For example, we can
translocate species like tortoises or red-cockaded woodpeckers outside of a project footprint with
a high degree of success to where they contribute to establishing or enhancing populations of
their species. However successful these efforts might be, they do not avoid the displacement and
loss of habitat caused by the project. An incidental take permit would still be needed in such a
case.
3.3 Who Can Apply for an Incidental Take Permit?
Any individual, non-Federal agency, business, or other entity that has the authority to conduct
activities on non-Federal property, or any State, municipal or tribal government agency that has
the authority to regulate land use can apply for a section 10 permit. A qualified applicant is one
who has the legal authority to execute a project on the lands proposed for coverage under an
HCP, and who has enough legal control over these lands to implement the HCP. Legal control
may comprise ownership of property in fee simple, an easement, a lease agreement that grants
authority for the proposed project, or a similar type of legal authority to conduct the proposed
3-5

activities (50 CFR 17.22(b)(2)(F), 17.32(b)(2)(F)). Under certain conditions, see section 3.4.4
below, contractual arrangements may establish this control.
Generally, the Services rely on the applicant to affirm their authority to conduct proposed
activities. The FWS’s standard application form (Form 3-200-56) provides a space for this
confirmation. We advise staff to discuss issues of legal control with a potential applicant at the
first meeting to avoid any potential confusion. During these discussions, staff should also inform
applicants about disqualifying factors for permit eligibility per FWS regulations at 50 CFR
13.21.
In addition to having legal authority to carry out the proposed project, the applicant must also
have direct control over any other parties who will implement any portion of the proposed
activity and the HCP (see 50 CFR 13.25; 50 CFR 222.305(b)). “Direct control” under this
regulation extends to:
1. those who are employed by a permittee (e.g., contractors),
2. anyone under the regulatory jurisdiction of a permittee (e.g., the permittee is a county that
issues building permits to individuals with conditions to implement the terms of the
HCP), or
3. entities that have an interagency agreement establishing the permittee’s legal control
(more on this in section 3.4.4).
3.4 What Types of HCPs and Incidental Take Permits Are Possible?
The ESA and regulations governing HCPs and incidental take permits allow a great deal of
flexibility in accommodating the needs of applicants while providing a set of comprehensive
tools to address planning from less than an acre up to landscape-scale plans. We have adapted
HCPs and incidental take permits to fit many different situations. Following is a comparative
table of typical HCP and incidental take permit structures that are more fully described in the
following sections. We emphasize that the following descriptions do not formally establish fixed
categories. The permit structures we use in this Handbook simply reflect one way to organize
and discuss the range of permitting options.

3-6

Table 3.4. Comparative Table of Permit/HCP Structures.
Type of Plan

Use When

Positive

Negative

Outcome

Single Applicant

Applicant
technical
request.

The basic permit
arrangement, yet adaptable
to many situations. Can be
scaled up to large, complex,
or recurring projects on
shifting land bases.

Becomes a workload issue as
numbers of small-scale
projects multiply. Mitigation
planning difficult and often
ineffectual for small-scale
projects.

Each project has one permit,
administering implementation
is one-on-one with
landowners.

Programmatic

Regional scale
planning, or
expedited
processing of
future projects
needed.

Provides efficiencies of
scale; addresses small-scale
projects; mitigation can be
better planned, sited, and
funded. Provides better
public service to small
landowners. Facilitates
regional conservation
planning, often in
cooperation with other
Federal and State agencies.

Planning and negotiation
often involves many
stakeholders, can be
controversial, difficult to sell
the idea to potential
applicants, enforcement
mechanisms must be
developed, individual
enrollees are overseen by
permittee, not the Services.
It is best to start slowly to
eventually go fast.

A central permit holder
administers its normal
regulatory authority to convey
incidental take coverage to
eligible landowners. (Via
local regulatory instruments
or certificates of inclusion.)

3-7

Type of Plan

Use When

Positive

Negative

Outcome

General
Conservation
Plan

Applicant for a
programmatic is
not available, but
expedited
processing of
future projects
needed.

Substitute for a
programmatic when an
applicant has not been
recruited with same
positives as for
programmatic. Services
develop the conservation
plan and define eligible
projects and applicants.

Individual applications
are expedited, but
Services must still
process and advertise
each one. Special
considerations in
impacts analysis and
administration.

General conservation plan can be
adopted by eligible applicants as
part of their individual application.
No master permit holder, but
numerous individual permittees.

Multiple Project
or Applicant
Plan, Umbrella
Plans

Any situation
where more than
one applicant
wants to
cooperate on a
project or
regional plan.
Possible
alternatives for
programmatic
when nongovernment,
industry or
proponent group
requests.

Provides for more
comprehensive regional
planning. Adaptable to
many situations. Similar
positives as for
programmatic. Plan could
be drafted by proponent
group to serve an industry
or similar project
throughout a region. Can
work very much like a
general conservation plan.

Severability
considerations, added
complications with
more than one
applicant. Direct
control must be
considered, Services
negotiate the umbrella
project plan with
proponent group and
also review individual
applications. Some
untested permit
structures.

Many possible outcomes dependent
on the proponents and their
situations. Adjacent landowners can
develop a single comprehensive
HCP or regional plans can
incorporate several
agencies/individuals. Multiple
project umbrella plan can be
adopted by eligible applicants as
part of their individual application.
Often results in a programmatic
plan, but some situations do not
require a master permittee. General
conservation plans and umbrella
plans result in numerous individual
permittees.

3-8

Type of Plan

Use When

Positive

Negative

Outcome

Combined
Program

Situations where
programmatic
applicants may
have options to
provide coverage
via enhancement
of survival
permit or an
HCP.

Uncommon, but has been
used in programmatic plans
so that the central permit
holder can offer
landowners options for
section 10 participation.
Best fits to combine safe
harbor and candidate
conservation options.

Must be designed to ensure a
covered activity meets
criteria for the given section
10 program. Landowner
cannot cover a project with
both an HCP and a safe
harbor, must choose one or
the other.

All examples have been
programmatic. One central
permit holder administers its
normal regulatory authority to
enroll eligible landowners via
certificates of inclusion into
appropriate section 10
program.

Integrated Plan

Accommodates
other Federal
agency
requirements.

Same advantages as a
programmatic plan, plus:
better public service to
provide comprehensive,
consolidated Federal
authorizations. Other
Federal agencies can adapt
to a programmatic plan
after it is implemented.

May be difficult to initiate
with more than one Federal
agency.

One central permit holder
administers its normal
regulatory authority to convey
incidental take coverage to
eligible landowners. Eligible
landowners could also fulfill
their other Federal regulatory
requirements.

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3.4.1 Single Applicant
The simplest incidental take permit structure involves a single applicant preparing an HCP and
applying for one permit. The scale of a single applicant plan encompasses a wide range of
applicants and projects. We can issue a permit to an individual lot owner on a fraction of an acre.
A developer might seek authority for a subdivision. Timber companies or utilities might seek
incidental take coverage on a project at a given location, or they may seek a permit for a set of
recurring activities across a large, multi-tract, interstate, set of properties.
If there are few uncertainties and ample mitigation options, development of these types of HCPs
can proceed relatively quickly. Regardless of their size, however, single applicant plans can
present challenges. Small-lot developments may occur in numbers that overwhelm staff
resources. On-site mitigation is rarely feasible for small properties, and the applicants often lack
the ability to provide biologically meaningful off-site mitigation. As the scale of a project
increases, numbers of species, and uncertainties over impacts and providing mitigation will
increase. Efforts to address these challenges have resulted in the more comprehensive, regional
HCPs described in the following sections. Other tools, like in-lieu fee funds or conservation
banks (Chapter 9.4) can be used to efficiently meet mitigation needs of small plans.
3.4.2 Programmatic Plans
Programmatic plans are typically landscape-scale HCPs initiated by a State, county, or local
municipality. We use the term “programmatic” to refer to a program, established under an HCP
and incidental take permit, that employs an applicant’s local regulatory authority so that
individuals subject to the applicant’s jurisdiction can receive incidental take authorization as they
comply with the applicant’s regulatory mechanisms. We have encouraged the use of
programmatic incidental take permits in various forms to address a group of similar projects
within a specific area, usually a political jurisdiction. Projects addressed by a programmatic plan
can range in scale from single-family lots or whole subdivisions to capital improvements,
utilities, and infrastructure. We often call programmatic plans regional or area-wide (State-,
county-, or city-wide) plans. A programmatic HCP can efficiently address the needs of many
similar projects by bringing them under one plan to create economies of scale. A local
jurisdiction, such as a county, seeking a programmatic incidental take permit can often raise
money to fund a conservation plan, spread costs through user fees, acquire lands, and plan
strategically for species conservation and adaptive management provisions, such as adaptation to
climate change effects.
Although programmatic plans may have a single applicant, we distinguish them from single
applicant plans (section 3.4.1), based on who has direct control over covered activities and how
that governs the provision of incidental take authority. A single applicant plan, such as for a
timber or interstate pipeline company, might extend across several States and cover a complex
array of activities and species rivaling any programmatic plan. Under a single applicant plan, that
permittee has direct control over all sub-activities in the plan by virtue of direct ownership or
corporate structure. Because of this direct control, the permittee’s employees and contractors will
be covered by the incidental take permit.

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In contrast, programmatic plans typically rely on a central, or master, permit holder, often a
State, county, or municipality, in the area proposed for plan coverage. The Services negotiate an
HCP with the central authority so that that authority receives an incidental take permit as the
master permittee. Eligible applicants in the permit area can receive incidental take authority and
No Surprises assurances through the master permit via local regulatory instruments (building
permit, percolation test, certificate of occupancy, etc.), or through a certificate of inclusion
provided for in the HCP and incidental take permit.
3.4.2.1 Challenges, Details, and Opportunities with Programmatic Plans
FWS general permit regulations at 50 CFR 13.25(d) allow persons under the “direct control” of a
permittee to perform the activities authorized by the permit. Direct control means those who are
employed or contracted by the permittee, for purposes authorized by the permit, to conduct the
authorized activity without on-site supervision by the permittee. Under most single-applicant
HCPs, persons under direct control typically include the permittee’s employees and contractors
(see section 3.5.5 for special considerations). Programmatic plans, however, need to consider
how incidental take authority will be extended by the master permittee to those who need it for
their individual projects and who likely are not employed or contracted by the master permittee.
The FWS promulgated general permit regulation 50 CFR 13.25(e) to address the needs of master
permittees. This regulation:
● extends direct control over people under the jurisdiction of the master permittee, and the
master permit provides that those people may carry out the authorized activity, OR
● extends direct control over those who receive a permit from, or have executed a written
agreement with, a master permittee who is a government entity.
Before these direct control regulations were promulgated, the Services relied on “certificates of
inclusion” that were defined in the HCP and incidental take permit. These are agreements
between the master permittee and individual landowners so that incidental take authority can be
conveyed to the participating landowner. In most cases it is preferable and easier to rely on the
50 CFR 13.25 regulations, but certificates of inclusion can serve as the “written agreement.”
They may also be useful in developing multiple project plans (section 3.4.4).
Programmatic plans are the most frequently used form of expedited incidental take permitting for
projects involving numerous similar activities. They are especially helpful in addressing the
needs of small landowners because, by scaling up the size of the project (encompassing several
small projects) mitigation planning can be consolidated to avoid isolated and more costly
“postage stamp” conservation areas.
Often counties, municipalities, and other organizations have little experience with HCPs. A
programmatic plan may represent a significant change in doing business for a municipality.
Services staff should encourage the applicant to bring their affected constituents into the
programmatic HCP development process. Establishing a collaborative effort among stakeholders
who can contribute to creating a successful programmatic HCP requires a significant investment
of time and resources by the prospective permit applicant and the Services, but is essential to a
successful HCP. See Chapter 4 for guidance on communicating, coordinating, and collaborating
with applicants and stakeholders.
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The Services should take advantage of Landscape Conservation Cooperative (LCC) efforts that
are providing the tools to help establish collaborative “communities of practice.” Some LCCs
may have already created an ecosystem governance community that can be tapped into. Utilizing
existing LCC efforts can help to persuade a potential applicant to enter into an HCP planning
process if they understand the potential time and cost-savings to themselves and their
constituents. An economic analysis by the applicant, a stakeholder, or possibly the Services or
LCC can be especially helpful to demonstrate and convince local authorities and their
constituents of the economic advantages of developing an HCP instead of continuing without the
assurances of an HCP regulatory framework.
Services staff can suggest to an applicant of a programmatic HCP that enlisting the assistance of
a local “champion” may enable a smoother HCP development process with stakeholder
engagement. This “champion” might be a local government staff-level person, a non-government
organization, or an influential constituent who understands community needs and issues. Finding
and partnering with such contacts can be essential to initiating and maintaining a successful
planning effort.
The ability to incorporate other Federal, State, and local regulatory processes into a
programmatic HCP provides another incentive for a local jurisdiction. For example, this might
involve the U.S. Army Corps of Engineers (Corps) Clean Water Act wetland fill permits, as long
as the applicant wishes to do this. They are not obligated to integrate their HCP with other
Federal regulatory processes. See more in section 3.4.6, below.
Depending on the size and complexity of an HCP, we encourage applicants to establish a
dedicated team of individuals to lead development of the HCP and to serve as the points of
contact with us. The applicant’s core team members may include, but are not limited to: an
environmental consultant(s), project manager, legal or policy advisor, biological staff, State
agencies, and our lead on the HCP. An applicant’s team should incorporate the expertise and
institutional knowledge required to ensure:
● efficiency during the HCP development phase,
● the HCP can be integrated into existing policy and legal frameworks,
● proper funding mechanisms can be established to support all aspects of HCP
implementation and mitigation requirements, and
● the conservation program can be implemented on the ground in a practical manner.
For complex landscape level HCPs that may require sophisticated conservation strategies, we
recommend the applicant involve species experts or science advisory panels on the HCP
development team.
We should encourage the applicant to look beyond conservation or biological expertise and
consider assistance from other types of experts. Professional facilitators or program managers
can help maintain momentum throughout the HCP development process. Facilitators may also be
needed for key meetings or to oversee stakeholder groups. An economist may be useful to help
calculate costs and benefits of alternatives, or to help develop funding assurance measures. See
section 3.8, below, for contracting.

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3.4.3 General Conservation Plans
A general conservation plan provides one approach to serving numerous, similar projects. The
Services prepare an HCP and related NEPA and section 7 analyses to fit the needs of potential
applicants with similar species effects in a given area. We make the general conservation plan
available to eligible applicants who can incorporate it into their incidental take permit application
as if it were their own HCP. We use the term “general conservation plan” in reference to plans
established per the FWS’s October 5, 2007, Final General Conservation Plan Policy in the HCP
Handbook Toolbox. Programmatic HCPs require a central permit holder. If a local agency
cannot be found that can take on this role, a general conservation plan provides nearly all the
benefits of a programmatic HCP. Neither of the Services, nor any other agency, is issued a
general conservation plan “permit.” Instead, a general conservation plan is used by qualifying
applicants as they apply for their own incidental take permits. If the Services determines that an
applicant satisfies criteria defined under the general conservation plan, and that they meet
statutory and regulatory issuance criteria, we may issue an individual incidental take permit.
3.4.3.1 Challenges, Details, and Opportunities with General Conservation Plans
Although we may take advantage of the latitude provided by not having to negotiate the general
conservation plan with an outside party, we must coordinate early and often with the people or
organizations we hope will use it. If we seek outside advice, remember our obligations under the
Federal Advisory Committee Act (Chapter 4.3.9). The general conservation plan’s plan area
should be tailored to the prospective covered activities and conservation needs of the affected
species. The Services define the type of activity and applicant who would qualify to participate
in the general conservation plan. Although the general conservation plan should be designed to
meet issuance criteria for eligible applicants, the 50 CFR 13 disqualifying factors can only be
evaluated at the time an individual application is under review (see Chapter 16.1.4).
Recipients of an incidental take permit issued under a general conservation plan also receive No
Surprises assurances. In addition, the Services will not alter a previously-approved general
conservation plan without first amending it in accordance with established permit review
procedures. In accordance with No Surprises, any such amendments will have no effect on
permits previously issued under that general conservation plan.
Staff should carefully consider defining the period in which a general conservation plan would
be available to the public and how that would relate to the maximum duration of permits issued
under the plan. These considerations directly influence the analysis of effects in the plan.
Generally, it works best to consider total “build-out” in the plan area over a projected period. If
effects and management risks are well known, it may be appropriate to make the general
conservation plan available for a relatively long period and to issue relatively long-term permits.
We may set individual permit duration to a given number of years, or to a defined date. Where an
individual incidental take permit is defined with a set number of years, then we could issue, on
the last day a general conservation plan is available, a permit with the full, defined term. Where
there is greater uncertainty or management risk, we could make the plan available for a short
period, and the individual permits set to expire on a specific date. In this arrangement, a permit

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issued on the last day of the plan’s availability would have a shorter duration than one issued on
the first day.
General conservation plans expedite permit reviews in several ways. Individual permit actions
can tier off the plan’s environmental impact statement (EIS) or environmental assessment (EA).
Depending on the situation, individual actions could be cleared with a consistency determination,
or they might require some lower level of NEPA review (a categorical exclusion or EA might
tier from an EIS). Signature authority can be delegated to field offices, and public notices can be
streamlined by batching and referencing the original notice announcing availability of the
general conservation plan. See examples in the HCP Handbook Toolbox.
We evaluate the general conservation plan as if it had been submitted by an applicant. Approval
of a general conservation plan does not result in a single programmatic permit. Instead, an
approved plan results in a number of individual incidental take permits each with No Surprises
assurances for the permittees. Compared to a programmatic HCP:
● Programmatic HCPs generally result in a single incidental take permit. The master permit
holder can convey incidental take authority to eligible landowners for individual projects.
● A general conservation plan results in a number of incidental take permits as the Services
make it available for use by individual applicants.
3.4.4 Plan Variations, Multiple Projects, or More Than One Applicant
Any of the permit and HCP structures described here can accommodate more than one applicant
sharing an HCP and the incidental take permit as co-permittees (e.g., a city and county jointly
developing an HCP for infrastructure and development permitting). In addition, more than one
applicant can work together on one HCP and receive separate incidental take permits for their
respective portions of a project or programmatic plan (e.g., adjacent property owners with
similar, independent projects and listed species impacts). Another scenario is that a
programmatic HCP might be established to allow other entities in a watershed, or similar ecoregion, to adapt it to similar development and listed species circumstances in their respective
jurisdictions. Our description of permit structures in this Chapter of the Handbook is not
exhaustive. We do not intend to limit other possible structures that might be proposed, as long as
they satisfy ESA requirements.
The FWS’s April 30, 2013, Final Guidance for Endangered Species Act Incidental Take Permits
Covering Multiple Projects or Project Owners (Multiple Project Guidance) (see the HCP
Handbook Toolbox) addresses issues related to planning and implementing large-scale, multiparty, programmatic HCPs across large geographic areas. The Multiple Project Guidance
highlights the ability of programmatic HCPs and general conservation plans to meet large scale
planning needs and provides clarifications to facilitate their use:
● clarifies direct control (see section 3.4.2.1),
● NEPA and intra-Service consultation analyses should be inclusive enough so that
individual actions can be approved with consistency determinations and appropriate
public notice rather than individual NEPA and section 7 review,
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● public notices may be batched for regular submittal to the Federal Register where this
could reduce Services workloads and improve efficiencies,
● clarifies applicability of No Surprises assurances (see sections 3.4.2 and 3.4.3, above),
and
● suggests issuance of an incidental take permit to a group of “co-permittees.”
Industrial consortiums, primarily wind-energy so far, have begun using the Multiple Project
Guidance to develop large-scale, multi-party umbrella plans that function like a general
conservation plan, but any group of non-Federal entities can do the same. Services participation
in reviewing and approving these multiple project plans is similar to a Programmatic HCP. We
need to provide advice and negotiate our positions early and throughout plan development. Be
mindful that we cannot approve any restriction on our ESA application review or permit
enforcement authority.
These umbrella plans are developed much like a general conservation plan. The non-Federal
entities write the plan, not the Services, and submit it to us for review prior to making it available
for potential applicants. The consortium members define the plan area, the activities to be
covered, and they define which projects and applicants would be eligible to participate. Under a
general conservation plan, an applicant would apply to the Services for a permit. Under an
umbrella plan, there may be additional requirements established by the consortium that
developed the plan before the Services receive an application. Other than considerations like
these, what we present above in section 3.4.3 would apply to an umbrella plan.
As any permits are implemented, the individual permit holders would be governed by the same
regulations and policy as any other permit. Recipients of an incidental take permit issued under
an umbrella plan also receive No Surprises assurances. In addition, the Services will not alter a
previously-approved umbrella plan without first amending it in accordance with established
permit review procedures. In accordance with No Surprises, any such amendments will have no
effect on permits previously issued under that umbrella plan.
The Multiple Project Guidance addresses permit structures with a record of success:
● Programmatic HCPs,
● General Conservation Plans, and
● Co-permittee plans.
These permitting approaches can accommodate any likely situation. We recommend their use for
multiple project plans because they are tested, and we know that they can withstand challenges if
properly written and implemented.
3.4.5 Combined Section 10 Plans
It is possible to combine a programmatic HCP with a programmatic safe harbor or candidate
conservation agreement with assurances. These situations occur infrequently where there is a
need to address species conservation across a jurisdiction and, to date, have involved government
agency applicants. An applicant for a programmatic HCP may want to add an enhancement of
survival option to their plan to accommodate the situations of different landowners. Under a
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combined programmatic plan, potential enrollees might have the choice of incidental take
coverage, or enhancement of survival coverage depending on the nature of the activity and its
proposed timing.
For an individual landowner, their take of a species might fit an HCP option, or it might fit a safe
harbor, but the landowner needs to choose the appropriate conservation plan. The same activity
cannot be covered under more than one section 10 incidental take authority for listed species.
However, if a landowner has both listed and at-risk or candidate species on their property, it may
be appropriate to enroll them under a candidate conservation plan option and one of the other
programs for listed species. Combined section 10 program plans must carefully consider the
regulatory and policy requirements for enhancement of survival permits as provided in separate
policy and guidance for those programs (Table 3.5.2).
The Georgia Statewide red-cockaded woodpecker plan offered potential participants an HCP and
a safe harbor option. There are also a handful of combined programmatic safe harbor and
candidate conservation agreements.
3.4.6 Integrated Plans
The development of a Habitat Conservation Plan provides landscape level planning for a
community, county, or even a State. It can set the future path for development (along with
county and city growth plans) and conservation. It can also set-up the side-boards or best
management practices (BMPs) through its conservation program for various kinds of
development and activities within the plan area. This can also facilitate review of other Federal
projects within the plan area because a programmatic HCP provides a programmatic section 7
consultation.
Section 7 and section 10 are not necessarily exclusive of each other. Our intra-Service section 7
consultation provides opportunities for other Federal action agencies to integrate their
consultations with that of the Services. A programmatic HCP can incorporate programmatic
section 7 consultations with another Federal agency, such as stormwater discharge or wetland fill
permits. In some cases, we could cooperate with other Federal agencies to provide a nearly “onestop” regulatory compliance process. It may be appropriate to have the other Federal agency
formally cooperate in the NEPA analysis. This interagency cooperation may also be a part of a
section 7(a)(1) planning effort, separate from any HCP.
Federal agencies can participate in the initial HCP planning. Alternatively, an established
programmatic HCP can provide a framework for other Federal regulatory agencies to request
consultation under the intra-Service section 7 consultation with the Services designated as the
lead Federal agency. Or, the Federal agency requests consultation with the Services for an action,
and incorporates the HCP conservation measures into their Biological Assessment (see more in
Chapter 14.12.7, Integrating HCPs and Federal Actions). These three options provide pathways
for Federal action agencies to streamline their consultation process by integrating their
approaches and compliance with the Habitat Conservation Planning process. However,
consultation under section 7 is the Federal agencies’ responsibility and therefore, how they
approach it is part of their Agency discretion. In other words, how a Federal agency integrates
with an HCP is purely that Agencies’ decision. The Services or the Applicant cannot force a
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Federal agency to participate or define how the Agency will participate in the HCP planning
process.
Integration with other Federal agency actions will complicate and add time to how long it takes
to develop an HCP; however, there may be time saved in implementation of the covered
activities to receive regulatory permission to proceed with projects. Careful consideration should
be given before deciding to integrate or not integrate with other permit programs. Begin
coordination with affected Federal agencies as early as possible.
Helpful Hint: To successfully integrate HCP planning with other Federal actions, both the
applicant and the Federal agency must be willing to enter into the planning process. Also,
consider whether there are sufficient resources (such as jurisdictional wetlands) in the HCP
analysis area to justify the effort of integrating HCPs and Federal actions.

3.4.7 Permit Severability and Implementation Oversight of Programmatic Enrollees
In any permit structure, the Services and the applicants must consider roles and responsibilities
so that any incidental take permit is enforceable, and that each permittee, or enrollee in a
programmatic plan, can be held responsible for their respective implementation obligations. As
the number of applicants and potential enrollees increases, these considerations become more
vital to successful implementation of the plan.
Permit severability refers to the ability to suspend or revoke any one permit without jeopardizing
the take authorization of other permittees. Permit severability essentially divides a plan into
separate administrative processes/responsibilities, different covered species, different activities,
or geographically by jurisdiction into multiple sub-plans with discrete roles for each applicant.
The Services, before issuing a permit, must find that each piece of the plan is viable on its own
without relying on the other pieces of the plan. While this makes it much simpler to determine
how to proceed should a permittee relinquish its permit, the analyses required before issuing the
severable permit may be greatly increased as we make a permit decision for each applicant.
As appropriate, divide activities and responsibilities among the applicants in the HCP(s) and
incidental take permit(s). Incorporate procedures into implementation planning for when
circumstances change to deal with potential compliance problems. As described below, it may be
necessary for a group of non-government co-applicants to create appropriate legal instruments to
allocate the rights and responsibilities of each co-permittee in order to achieve severability.
Although permit severability is highly beneficial for the Services and the applicants, it is not
mandatory. There may be situations where conservation strategies rely on all permittees. Note
that programmatic and general conservation plan structures achieve severability through
individual local authorizations (or certificates of inclusion), or via individual incidental take
permits under a general conservation or umbrella plan.
The Services’ oversight of a programmatic HCP extends directly to the permittee. We normally
do not have direct oversight of the enrollees (in any recipients of certificates of inclusion), or
others covered by, that programmatic plan. Enrollees and other covered individuals are governed
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by the procedures established by the HCP and the permit, as expressed in their certificate of
inclusion, and by the local laws governing activities addressed by the HCP. In the absence of a
certificate of inclusion, individuals under the jurisdiction of the master permittee will have
incidental take coverage conveyed to them by a building permit, septic percolation test,
occupancy certificate, or similar local authorization. Whether by certificate of inclusion, or by
some local authorization, the method by which a master permittee conveys incidental take
authority to individual participants in a programmatic plan must be described in the HCP or
incidental take permit. The HCP or the permit should also provide a mechanism that allows us to
ensure the permittee issues any local authorizations in line with the required conservation
measures.
3.5 What Types of Activities Can be Covered in an HCP?
Any land use or management regime can be considered for HCP coverage. However, we must
carefully consider which activities should be covered and the applicant’s need for an incidental
take permit, whether or not it would be prudent to expand the proposed covered activities, versus
the time and cost investment to do so. While it may be prudent to limit the scope of covered
activities for an HCP for a single land owner, it may be just as prudent to expand the range of
covered activities for a large scale, or programmatic, HCP when we will spend substantial time
and funds preparing an HCP. Covered activities should address emergency responses to
predictable or likely hazards in a given area (e.g., wildfires, tropical storms, etc.). However, we
cannot cover take due to illegal activities like oil spills or waste water releases. These can be
addressed as changed circumstances, but any take of listed species and the mitigation of effects
would be addressed under other authorities, such as the Federal Water Pollution Control Act or
Natural Resource Damage Assessment and Restoration Act (see the HCP Handbook Toolbox).
3.5.1 Otherwise Lawful
To be eligible for an incidental take permit, any taking of listed wildlife must be incidental to
otherwise lawful activities. While Chapter 5 discusses covered activities, there are things you can
consider early in the process to avoid potential pitfalls.
“Otherwise lawful” is a key factor in determining whether we can cover an activity in an HCP.
This means that applicants must have the legal authority to successfully conduct the proposed
activity in order to meet issuance criteria. The Services may accept an applicant’s assertions of
lawfulness (see the certifications made in section D.2 on the FWS application form).
For most activities we consider in HCP review, the Services can readily accept an applicant’s
certification regarding the lawfulness of their activities. Typical construction, timber
management, mineral extraction, or other land management activities usually do not raise
questions of lawfulness. For such routine activities, we must stay mindful that we do not enforce
State and local laws authorizing the activity. This means that we do not generally evaluate an
applicant’s compliance with local requirements (though we may refer an applicant’s noncompliance to appropriate authorities), nor do we second guess a local jurisdiction’s
interpretation or enforcement of its requirements.

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Such questions may become more important when the activity under consideration is
controversial, such as a community that allows vehicles on a beach, or a State’s fur trapping
program. If there is local controversy or political dispute over the covered activity, we may need
to ask the applicant for an explanation of their authority concerning covered activities. Having
the applicant provide this background will help define our Federal action (see Chapter 13.3.2).
3.5.2 Enhancement of Survival Permits Do Not Substitute for an HCP
While the Services should strive to assist applicants with their specific needs, we must not use
HCPs, safe harbors, candidate conservation agreements with assurances, or research/recovery
permitting interchangeably. An HCP may incorporate some research, survey, or management
activities that might separately be authorized appropriately by a recovery permit (see section
3.5.5, below), but staff must not try to expedite an incidental take application by attempting to
make it something it is not. Neither should we try to use a recovery permit as an interim measure
(section 3.5.6) to allow an early project start before an HCP is fully developed and reviewed. A
research project must stand on its own merits to meet section 10(a)(1)(A) issuance criteria.
Likewise, safe harbor enhancement of survival permit applications must also meet certain
criteria. These are voluntary agreements where the purpose is to undertake beneficial actions on
behalf of covered species for a period of time to elevate the covered species status above an
agreed-upon baseline. After the permittee’s land management has improved habitat for the
covered species ( i.e., elevated the baseline), the safe harbor permit authorizes a specific amount
of take that may occur in the future if the permittee returns habitat conditions to the baseline.
Attempts to creatively schedule mitigation, or to over-compensate the impacts, will not transform
an HCP situation into an appropriate safe harbor situation. Generally, an HCP is needed for a
landowner whose first interest is to develop, harvest, or convert the habitat on their property. A
safe harbor is more appropriate for a landowner who wants to maintain their management
options into the future if their current or contemplated management regime enhances, or could
enhance, listed species habitat.
A candidate conservation agreement with assurances (CCAA) functions similarly to a safe
harbor in that the purpose is to provide a conservation benefit to the covered species. A CCAA is
appropriate for a landowner who wants to maintain their management options in case a candidate
species is listed in the future and is willing to address the threats to the species on their property.
A landowner who wants to develop, harvest, or convert habitat now generally would not be
eligible for a CCAA. In this situation, we could cover the candidate species under an HCP as if
the species were listed, but only if there are also currently-listed species affected by the project.
We cannot approve an HCP without at least one listed animal species.

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Table 3.5.2. Endangered Species Act, section 10(a)(1) permits.

Endangered Species Act, section 10(a)(1)(A) Permits

Endangered Species
Act, section
10(a)(1)(B) Permits

Scientific
purposes

Incidental take

Enhancement of propagation or survival
Safe harbor
agreement

Candidate
conservation
agreement with
assurances

Application requirements at 50
CFR 17.22(a)(1), 17.32(a)(1),
or 222.308

Application
requirements at 50
CFR 17.22(c)(1) and
17.32(c)(1)

Application
requirements at 50
CFR 17.22(d)(1)
and 17.32(d)(1)

Application
requirements at 50
CFR 17.22(b)(1),
17.32(b)(1), or
222.307

Applicant
wants to
conduct
research,
status
surveys,
captive
studies,
project
planning,
etc.

Applicant wants
to benefit ESAlisted species.

Applicant wants to
manage lands to
provide a net
conservation benefit
for ESA-listed
species, and to make
use of those lands in
the future.

Applicant wants to
manage lands to
provide a net
conservation
benefit for unlisted,
at-risk species, or
candidates for ESA
listing, and to make
use of those lands
in the future.

Applicant wants to
make use of lands
under their control.

Permit
authorizes
harassment,
capture,
retention,
harm, etc.,
for scientific
activities in
support of
species
recovery.

Permit
authorizes land
management,
education,
captive
population
management,
etc., in support
of species
recovery.

Permit authorizes land
management and
incidental take that
may occur in
accordance with the
Agreement (including
a return to baseline).

Permit authorizes
land management
and incidental take
that may occur in
the future in
accordance with the
Agreement.

Permit authorizes
incidental take and
requires mitigation
and monitoring that
can include scientific
and enhancement
activities.

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3.5.3 Accommodating State Requirements
As noted in Chapter 2.2.5, we should consider State interests as we advise applicants and write
incidental take permit conditions. We can adopt State requirements into incidental take permit
conditions that may be more restrictive than the Services’ when States are implementing their
requirements in accordance with their section 6 agreement, or as provided by the Migratory Bird
Treaty Act (MBTA) and Bald and Golden Eagle Protection Act (BGEPA) (see the HCP
Handbook Toolbox). However, we should not adopt State requirements whenever they are not
consistent with our authorities under ESA, MBTA, and BGEPA, and our obligations under
NHPA and NEPA.
3.5.4 Section 7 Programmatic Consultations
Non-Federal activities that have a Federal nexus, such as a required Corps wetland permit or
Federal Energy Regulatory Commission (FERC) (see the HCP Handbook Toolbox) license may
not need a section 10 incidental take permit because a section 7 consultation with the Federal
agency can provide incidental take coverage to the non-Federal entity seeking the permit. Still, a
programmatic HCP gives us an opportunity to:
● combine other Federal regulatory programs into an overarching interagency planning
effort (section 3.4.7, above),
● supplement coverage of a project’s incidental take when another Federal agency does not
exert jurisdiction over a project’s full scope of interrelated and interdependent effects,
plus
● provide the section 10 additional benefit of No Surprises assurances to permittees versus
section 7 where No Surprises assurances are not available.
3.5.5 Research or Recovery Permits
Other activities that the applicant may need to include in their requested take are activities that
may result in additional incidental take related to monitoring the status of the species for the
HCP, measuring the covered take, and any mitigation. For example, many incidental take
permits require surveys of the covered species for a certain period, or for the life of the permit, to
ascertain that take is not exceeded or to monitor the species status within the HCP plan area.
Although take due to such activities should be covered by the incidental take permit as a covered
activity of the HCP, the Services must also consider the qualifications of those who would
perform such work, and we must establish methods and protocols for it. Generally, it is more
efficient for us and the applicant to rely on hiring consultants whose qualifications have already
been reviewed and approved under an ESA section 10(a)(1)(A) research permit review.
Likewise, it may be more efficient to take advantage of methods and protocols already
established through the research permits program.
3.5.6 No Temporary Authorization of Incidental Take
The Services sometimes receive requests from HCP applicants for temporary or interim
incidental take authorization for the period while they develop an HCP. This situation most often
occurs during the development of complex or programmatic plans. There is no alternative
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instrument to provide temporary or interim incidental take authority in anticipation of issuing an
incidental take permit. For applicants under time constraints relative to take coverage and the
HCP planning process, the Services should:
● reach out early to applicants to avoid such situations,
● delineate allowable activities that do not cause take nor compromise our section 7(d)
requirements,
● recommend interim take avoidance measures that may allow applicants to move forward
with limited project activities,
● provide information in a timely manner, and
● conduct timely review of documents.
During the application process the applicant does not have ESA authorization for any take and
therefore may be liable if take occurs. At any point in the application process prior to issuance of
any incidental take permit, applicants may be subject to enforcement actions for any take (or
potential take) of listed species under section 9. Under limited circumstances, for projects with
long-term, ongoing take, and when applicants are working with the Services in good faith to
obtain coverage for the take, we will consider the applicant’s participation in the ITP application
process in making decisions about bringing enforcement actions and about appropriate penalties.
If requests for interim take solutions occur while negotiating and planning large-scale,
programmatic HCPs, one potential solution is to instead consider individual applications for
incidental take permits. The immediate needs of individual landowners will compete for Services
resources and individual permits might risk the incentive for a programmatic plan. However, this
solution may get incidental take coverage in place more quickly for applicants that have more
immediate needs for take coverage. When we issue individual permits ahead of a programmatic
plan, the individual permits must stand on their own and meet ESA requirements. HCP staff
should consider batching applications together to share common NEPA and section 7 analyses,
and creating “fill-in-the-blank” templates of HCPs and findings.
3.5.7 Advance Mitigation
As with all mitigation proposals, advance mitigation must be approved by the Services, but it is
negotiated and memorialized in an agreement instrument (e.g., letter of agreement, acquisition
letter, memorandum of agreement (MOA), memorandum of understanding (MOU), points of
agreement, or similar) (see the HCP Handbook Toolbox) before an HCP is developed and
implemented. Advance mitigation must meet the same requirements as other types of mitigation,
but implementation may begin during HCP development as soon as we have an agreement.
Helpful Hint: Although we will consider advance mitigation when we make a permit decision, the
advance mitigation agreement is not a guarantee of HCP approval or permit issuance. In addition,
the advance mitigation may not fully offset the impacts of the taking requested in the final HCP. The
applicant needs to understand that any advance mitigation is at their own risk.

There are many reasons advance mitigation may benefit the applicant, the Services, and the
covered species. Purchasing lands for mitigation may be less costly for the applicant if purchased
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early before prices increase or when prices temporarily drop. If important lands are under
development pressure, they may not be available for purchase, or available at a reasonable price,
at a later date. Managing lands for optimal covered species habitat may be necessary to provide
the applicant with the best mitigation ratio (if value of habitat will lessen without management).
In most cases, the earlier mitigation is put into place, the more benefit it provides for the covered
species (e.g., because it offsets, or at least lessens, temporal impacts).
One way applicants with long-term, ongoing take can show good faith during HCP development
is to develop and implement agreed-upon advance mitigation.
In some rare cases, lands have been set aside for conservation purposes (e.g., recharge zone lands
put under a conservation easement to protect water resources, lands set aside and protected as a
buffer for a military base or State refugia) and an applicant will ask to use it as mitigation for an
HCP under discussion. Generally, these lands are not eligible for inclusion as mitigation for the
HCP because the mitigation has already occurred and will not provide any additional benefit to
the covered species or because any benefits to covered species are incidental or both. Even if the
original purpose was to benefit a covered species, it was not intended as mitigation for the HCP
under discussion. However, the Services may accept these lands for mitigation purposes if there
are additional measures planned to specifically meet the needs of covered species (a mitigation
measure is additional when its benefits improve upon the baseline conditions of the affected
resources in a manner that is demonstrably new and would not have occurred without the
mitigation measure). For example, land set aside for recharge is to be left in its natural state to
protect water resources, but the applicant agrees to burn underbrush on a regular basis to provide
additional habitat for early-successional species (e.g., black-capped vireo) or one that needs
mature pine forest with very open understory (e.g., red-cockaded woodpecker).
One great example of advance mitigation is the Pima County Multi-Species Conservation Plan’s
(MSCP) Maeveen Marie Behan Conservation Lands System (CLS) that is used to direct
development-related impacts away from sensitive natural resources. Most projects (regardless of
whether they are in or out of the CLS) are subject to protocols or regulations that seek to avoid,
minimize, or mitigate impacts to on-site sensitive resources (e.g., floodplains, riparian areas,
native vegetation) as well as promote a project design that avoids and minimizes impacts to offsite resources (e.g., surface and groundwater). Based on an early agreement with the Services,
Pima County, over a decade or so before their permit was issued, actively acquired a land
portfolio to rely upon as mitigation for impacts resulting from Covered Activities. At the time of
permit issuance, they had purchased or put conservation easements on approximately 95 percent
of the 116,000 acres they expected to need as mitigation over the 30-year term of the permit. For
more information on the Pima County MSCP and advance mitigation program, go to the HCP
Handbook Toolbox.
3.6 Going Fast by Starting Slowly
Taking the necessary time at the beginning to thoroughly plan how the HCP will be developed
and ultimately implemented pays dividends in the long run. Once the decision is made by the
Services and the applicant to develop an HCP, the temptation may be to dive in and start writing
the HCP, but this is not always efficient. We should carefully consider and plan the process to
develop the HCP before starting the writing.
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The Services and the applicant need to develop a common understanding of each other's needs
and goals for the HCP as well as their respective planning processes. In coordination with the
Services, applicants should develop a realistic time schedule to prepare their HCP. The Services
should work with the applicant to identify key milestones, such as when the applicant’s
executive managers need briefings or when their approvals are needed for planning to continue.
Applicants should understand the time needed to achieve specific milestones associated with the
incidental take permitting process. Important schedule components are the necessary review
periods needed by the Services and their legal counsels at different points throughout the
development and approval processes. Note that several later components of these processes are
contingent upon the adequacy of the draft HCP, so any deficiencies will inevitably cause delays
in submitting the final application package for processing. Finally, adhering to the agreed upon
timelines is a critical success factor for all parties, as even minor delays can accumulate and
create major delays by the end of the process.
As a possible framework for initiating these discussions, consider filling out the “Getting
Started” questionnaire we offer below (or a similar tool adapted to circumstances) before the
development of the HCP begins. This may not be as helpful in a smaller, single-applicant plan,
but this framework will definitely assist with programmatic or multi-party plans. The
questionnaire can help to develop a common understanding between the Services and the
applicant on what type the HCP will be, the process to develop the plan, and the level of
commitment for its development. The questionnaire need not be binding or set in stone, instead it
should be a tool completed voluntarily that guides the development of an HCP.
Table 3.6. Getting Started Questionnaire to Be Used Early in HCP Development.
Sample HCP “Getting Started” Questionnaire
HCP name:
Items for the Service and applicant to answer together
Has the Service given an HCP 101 presentation to the
applicant? If so, did it answer the applicant’s key questions?
What are the applicant’s broad goals for the HCP?
What are the general conservation goals of the Service for the
HCP?
What is the general area the plan will cover?
What species are being considered for coverage?
What types of activities may have effects on species?
What types of conservation activities are being considered?

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What key existing data, or plans can help inform development
of this plan? (e.g. political, economic, social, environmental,
climatic, etc.)
What key information may be needed, but is unavailable?
What is known about the species and area in relation to
climate change effects?
Is the plan area likely to provide refugia or movement
corridors for species vulnerable to climate change effects that
are either within the plan area, or that might now exist outside
the plan area?
Has a simple checklist of the specific information needs of the
Service to complete the BO, make findings, and issue permits
been developed and attached to this questionnaire?
What is a reasonable timeframe for this plan to be completed?
Has a rough timeline been created for key milestones of the
plan development?
Has a dispute resolution process been developed and attached
to this planning agreement?
In addition to the ESA permit being sought, are there other
Federal permits or regulatory processes that need to be
considered?
Has a rough budget for preparation of the HCP been
developed and attached to this questionnaire?
Has the Service informed the applicant about funding
opportunities (including section 6)?
Who are the key stakeholders that should be included in the
development process?
How will key stakeholders be included in the development
process?
Who are the key stakeholder experts who can be brought in to
help develop the conservation strategy?
How will plan development be funded?
How might plan implementation be funded?
What permit duration is being sought and why?
Who and how will data be managed that is developed for this
plan?

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Has a data sharing plan been developed between the applicant
and the Service?
How will interim decisions be memorialized?
How will legal counsel be involved in the process?
How will decisions be documented clearly?

For the Applicant to Answer
Who will be the applicant’s primary project manager
and point of contact? How much time will he/she
commit?
Who will be the decision makers for the applicant?
How will elected officials and senior managers be
involved in plan development?
How will the applicant staff be involved in development
of the HCP?

For the Services to Answer
Who will be the decision makers for the Services?
Who is the primary liaison for working and
communicating with the applicant?
When multiple field offices or regions of the Services
are involved, how will these different offices and
regions interact?
How and when will senior managers be involved in plan
development?
How will the Services staff be involved in the
development of the HCP and NEPA?
What workload management arrangements and
decisions need to be made to accommodate field staff
time for working on the HCP and NEPA?

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Should the questionnaire be signed?
The Services and applicant must work together to decide if there is value in making the ‘Getting
Started Questionnaire’ (or similar form) more formal by having it signed by both parties. Signing
the document may be useful in more complex plans where commitments and process agreements
are particularly important.
When to fill out the questionnaire?
Once the need for an HCP has been determined, the Services and applicant should consider
filling in the ‘Getting Started Questionnaire.’
How can the questionnaire help with NEPA scoping?
For HCPs where NEPA scoping through the Federal Register is warranted, completion of the
questionnaire may be a good time to initiate scoping with the public. The information in the
questionnaire and timing of its completion would be useful to initiate public scoping.
3.7 Other Compliance Requirements
Issuance of an incidental take permit is a Federal action and subject to other Federal laws and
regulations. NEPA and NHPA are the two considered in all HCP decisions. The Services must
also conduct intra-Service section 7 consultation.
A project proposal may affect other resources for which the Services are responsible. Although
an applicant may not be on the “hook” for effects to listed plants, critical habitat, or migratory
birds, the Services do have responsibilities for these resources under the ESA or other laws as
described below.
To avoid costly delays in a project’s implementation, it is extremely important to begin
coordinating how these other requirements are addressed with the applicant as early in the
project designing process as possible when there is maximum flexibility and no conservation
options have been agreed to or eliminated from the mix.
3.7.1 Section 7 Intra-Service Consultation
In addition to the requirements of the section 10 permit regulations, detailed species and habitat
information are needed for the section 7 process. All covered species, listed, candidate, or
proposed, will need to be assessed under section 7 for impacts and the likelihood of jeopardy and
any adverse modification of critical habitat (see Chapter 14.12.1). We can also cover non ESAlisted species in an HCP; if proposed for coverage, they must also be considered in the intraService consultation. For species covered by an incidental take permit, the biological opinion
informs the “not appreciably reduce the likelihood of the survival and recovery of the species in
the wild” issuance criterion (see Chapter 16.1.3).
Information gathered while preparing the HCP can greatly simplify the writing of a biological
opinion. This is especially important when non-listed species are involved, since often there is
limited information in the Services’ files to use for background information.

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If listed species that occur in the plan area are dropped from the covered species list for lack of
information, or are not included in the HCP from the onset, they still must be addressed in the
intra-Service section 7 biological opinion to determine if they may be adversely affected by the
proposed covered activities. If adverse effects to a species are possible, we should encourage an
applicant to include them in the HCP and permit application (see Chapter 7). If an applicant
ultimately decides against covering a species, they face the risk that we would be unable to
process the permit application as all species likely to be taken are to be covered by the permit.
Intra-Service consultation does not formally begin until after a complete application is received.
However, there is no need to wait. We should gather information and plan the intra-Service
consultation simultaneously with HCP development. As the final draft of the HCP is being
compiled, just before submittal of the application, is a good time to review the HCP through the
lens of an intra-Service consultation. This can identify previously unidentified gaps in the HCP.
See Chapter 14.12.1 for compliance with section 7 for HCPs.
3.7.2 Listed Plants and Critical Habitat
In the Services’ intra-Service consultation prepared for its incidental take permit decision, we
must analyze and identify measures to conserve listed plant species as well as any designated
critical habitat. Like any other Federal agency, the Services may not undertake an action that is
likely to jeopardize the continued existence of listed plants, or destroy or adversely modify
critical habitat. Although an applicant is not responsible for the Services’ compliance with ESA
section 7, it is to their benefit to address impacts to listed plants or critical habitat in their HCP to
help us meet our obligations under section 7.
3.7.3 Migratory Birds and Eagles
In addition to the ESA, FWS implements the MBTA and the BGEPA. FWS staff have several
options to follow when addressing migratory birds and eagles in HCP planning.
If a bird species protected by the MBTA is affected by the plan and is listed under the ESA, then
it is addressed, as we describe in this Handbook, as any other ESA-listed species. See special
considerations for ESA-listed migratory birds in Chapter 16.2.1.
If take of bald or golden eagles may occur, a BGEPA permit is required. See Chapter 7.4.2 for
more.
Non ESA-listed, migratory birds can be covered or otherwise addressed in the HCP and
incidental take permit. Options to cover the bird species, develop voluntary conservation
measures, or to identify avoidance measures to incorporate into the permit are discussed in
Chapter 7.4.1.

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3.7.4 National Historic Preservation Act
Section 106 of the NHPA (see the HCP Handbook Toolbox) requires Federal agencies to take
into account the effects of their undertakings on historic properties and afford State and tribal
historic preservation offices, and the public, a reasonable opportunity to comment on such
undertakings. The implementing regulations for section 106 of the NHPA, at 36 CFR 800, define
how the Services can meet these requirements through a consultation process. The goal of
consultation is to identify historic properties potentially affected by the Federal undertaking,
assess its effects and seek ways to avoid, minimize, or mitigate any adverse effects on historic
properties. Appendix A provides an overview of section 106 compliance for FWS.
The Services’ permit issuing officer has the obligation to fulfill section 106 consultation
requirements. Issuance of an incidental take permit and implementation of the HCP’s
conservation requirements for covered species is a “Federal undertaking.” We may use our
public involvement procedures under NEPA or other program requirements to satisfy the public
involvement requirements for NHPA. Cultural resources are a NEPA factor, and the NHPA
regulations encourage coordination and incorporation of NHPA consultation with the NEPA
process. Also, early coordination is advantageous as voluntary adoption of compliance
requirements by the applicant may streamline NEPA (i.e., reducing uncertainty and managing for
it through surveys and proper preservation may decrease the level of analysis from an EIS to a
mitigated EA).
The Services may establish, in consultation with the Advisory Council on Historic Preservation,
alternative consultation procedures. Although these have not been established Service-wide,
Regions and field offices may develop local consultation procedures with their corresponding
State and tribal historic preservation offices. As noted above, the NHPA regulations allow us to
coordinate with other programs. Some States’ cultural resource requirements have similar NHPA
goals and can be coordinated to meet both State and Federal needs. These State consultations
should be incorporated into our review to minimize duplicative effort by the Services and HCP
applicants.
3.7.5 National Environmental Policy Act
NEPA (see the HCP Handbook Toolbox) requires an analysis of impacts to the same species as
does the ESA, but the scope of NEPA goes beyond that of the ESA by considering the impacts of
our Federal action on other aspects of the human environment such as water quality, cultural
resources, other biological resources, and socioeconomic values. Because issuing an incidental
take permit is a “Federal action” under NEPA, we must conduct the appropriate environmental
analyses and document it in accordance with NEPA, the Council of Environmental Quality
(CEQ) NEPA regulations, and Department of the Interior NEPA regulations (see the HCP
Handbook Toolbox) before finalizing a permit decision. Early during HCP negotiation is the
time to identify the analysis to be conducted for our NEPA review.
This Handbook relies on the Services’ NEPA policy and guidance (see the HCP Handbook
Toolbox) for NEPA implementation. However, conducting the HCP program requires us to
adopt the point of view of a regulatory action agency, not a commenting agency.

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The applicant will evaluate their project, and alternatives, from the perspective of its effects on
listed species and other natural resources of concern to the Services, and provide this information
in their HCP. The applicant’s project provides the essential core of the proposed Federal action:
issuance of an incidental take permit in response to that HCP and permit application. In our
NEPA documentation, the Services evaluate issuing the permit from the perspective of its
potential effects on the human environment.
When we find significant effects, we prepare an EIS. When we are uncertain of the effects of our
actions or where the effects of the actions will be less than significant, we prepare an EA that
results in either a Finding of No Significant Impact (FONSI), or we continue to prepare an EIS.
While we encourage Services staff to consider an EA to help identify the significance of the
effects of our actions (to focus the scale of analyses in an EIS, or possibly conclude with a
FONSI), we also have the option of bypassing an EA and beginning with the preparation of an
EIS if we know it will be necessary at the outset. If our action has effects that are individually or
cumulatively not significant, it may be categorically excluded from further analysis. Note that we
establish new options in this Handbook to consider conservation measures in making our
categorical exclusion decision (Chapters 13.4.1, and 15.5.1.2).
Levels of NEPA review will affect HCP review timelines. A categorical exclusion can be issued
by an FWS field office in a couple of months (if delegated), including the 30-day comment
period, while an EIS-scale HCP requires more than one public notice, and usually more than a
year to complete.
Misunderstanding the scope of the Federal action in an incidental take permit-related NEPA
document often leads to an overstatement of impacts, potentially foregoing the use of our
Categorical Exclusion, and encumbering applicants (and the Services) with unwarranted, costly,
and time-consuming EISs. In this Handbook (see Chapter 13), we seek to clarify our NEPA
analyses by:
●
●
●
●

empowering the Services to focus the scale and extent of NEPA review,
selecting an appropriate level of NEPA documentation,
revising the required public notice periods for each NEPA review level,
advising the Services on their oversight of the NEPA review when it is conducted by
outside consultants (section 3.8 and Chapter 13), and
● advising Services staff on managing the HCP Planning Assistance grants program to
ensure it stays focused and on track (section 3.8).
3.8 Contracted Assistance
Large scale HCPs often involve contractors hired by the applicant, or possibly by the Services.
3.8.1 Facilitators
For large-scale or regional HCPs, we strongly encourage the use of a neutral professional
facilitator who is skilled at moderating committee meetings, building consensus, handling
complicated projects, and working with uncooperative parties. Such professionals can help to
move the HCP process forward. A facilitator can help recognize and resolve problems or use
3-30

negotiation techniques to aid a group in overcoming obstacles and meeting expectations. When
working with a steering committee or other group, a facilitator can help the group to define the
problem, develop alternatives, and establish ground rules to resolve differences between
divergent interests. The facilitator’s role is to assist the group in reaching its specified goal. They
should not be involved in formulating the particulars of the HCP or in the decisions reached by
the group.
3.8.2 HCP and NEPA Consultants
Consultants or contractors can be of great assistance to an HCP applicant in a number of ways.
Consultants can assist with the development of the HCP, provide input into minimization and
mitigation options, help formulate alternatives, and develop monitoring plans. Although an
applicant can develop an HCP with minimal impacts without the aid of a consultant, we often
recommend using a consultant for large complex HCPs that require expertise beyond that of the
typical applicant. However, the applicant has control over HCP preparation; a consultant does
not drive the applicant’s decisions.
NEPA documents are sometimes prepared by the same consultant that prepares the HCP. This
can lead to confusion and conflicts of interest, possibly delaying the process, and even
occasionally, leading to litigation. The NEPA document associated with issuance of an incidental
take permit is the Services’ document. Where preparation of the NEPA document is paid for by
an applicant, the Services must approve the selection of the contractor. The NEPA
documentation must be neutral and objective and not influenced by the applicant’s desire for a
permit. If an applicant or his/her consultant is drafting the NEPA documents, they must
understand that the sections of an HCP are not fully transferable into the NEPA document.
For an EIS, we generally require that consultants who prepared the HCP not be involved in the
EIS development. While not required for an EA, we strongly prefer a similar degree of
separation between the consultant team preparing the HCP from that preparing the EA document.
Although we prefer and recommend that these teams be from different firms, if we agree, the
applicant may use the same firm, but different staff on the two documents. In either case, it is
important to note that compliance with NEPA is our responsibility and as such, the contractor
that prepares the NEPA documents is:
1. selected by the Services, and
2. works with and for the Services (and is responsive to the Services, only), regardless of
who is paying for this task (40 CFR 1506.5(c)).
We recommend that the NEPA consultant be required to sign a no conflict of interest disclosure
statement (see the HCP Handbook Toolbox) prior to starting work. This is required for an EIS,
but not for an EA. When a consultant prepares an EIS or EA, they should prepare a disclosure
statement for inclusion in the draft and final EIS or EA to ensure the avoidance of any conflict of
interest (40 CFR 1506.5(c), 43 CFR 46.105, and 516 DM 8) (see the HCP Handbook Toolbox).
This helps to formalize the team separation and to establish ground rules for the preparation of
the NEPA document that will ensure close coordination with the Services and an analysis that is
independent from the HCP. The incentive for an applicant to fund NEPA document preparation
is to expedite the development and review.
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Although not preferred, we recognize that the scale of a project or the available planning
resources do not always allow for separate teams in EA preparation. If this happens we must
emphasize our concerns and work closely with the consultant.
In the past, we have agreed to combine some HCPs with the EA in an attempt to streamline
analyses. This works in a few rare circumstances, but the majority of attempted EA-HCP
combinations have been counterproductive. Combining the HCP with the NEPA documentation
places the Services in the position of negotiating the content of the EA, which is our document,
and blurs the distinct requirements of the two documents. Combined documents also complicate
future revisions to the HCP that would otherwise not involve an EA amendment.
3.8.3 Advice to Applicants on Selecting an HCP Consultant
Because many applicants lack the necessary expertise to develop a conservation plan, we
encourage them to use consultants who have experience in HCP preparation. A highly
knowledgeable and professional consultant can greatly facilitate the development of an HCP,
whereas a consultant who lacks adequate experience and knowledge can cause costly delays and
misunderstandings. While we cannot require the applicant to hire (or refrain from hiring) any
specific individual or firm to write the HCP (we do have control over NEPA documents), we
offer the following considerations to applicants for them to keep in mind when they are selecting
a consultant:
● What experience does the consultant have in preparing HCPs that the Services have
approved?
● Do the consultant and the proposed project manager have experience in preparing HCPs
with applicants similar to you (e.g., local governments, local water agencies, local
transportation agencies, State agencies, industry groups, residential developers,
renewable energy companies, etc.)?
● Does the consultant have experience preparing HCPs with a level of complexity similar
to that expected for your HCP?
● Has the consultant been involved in the preparation of HCPs from the beginning to end,
or just some portion of the process? Have the consultant provide information or
references to help you confirm this.
● Does the consultant have local knowledge of the geographic area and species to be
covered by the HCP?
● Does the consultant have the technical expertise needed for the issues in your HCP (e.g.,
in a variety of disciplines: biologists, GIS specialists, NEPA specialists, land use
planners, economists, conservation biologists, climate change specialists, data modelers,
project managers, project facilitators, etc.)?
● Has the consultant’s team (or sub-contractors) worked together on other projects?
● How will the consultant ensure the availability of key staff for the duration of the project?
● How will the consultant control costs and manage their budgets?
● Does the consultant have experience in implementing approved HCPs? (This allows them
to bring “lessons learned” in HCP implementation to the development of your HCP.)
● Ask the consultant for a list of previous HCPs and NEPA analysis documents completed,
with a point of contact for each. Examine these documents if possible. Contact previous
project proponents and ask if:
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o
o
o

the consultant was easy to work with,
they were satisfied with the work, and
the HCP/NEPA analysis was on time and on budget.

Even when a consultant or legal representative is involved, it is important for applicants to also
maintain close coordination with the Services to ensure an accurate exchange of information and
a true understanding of expectations as the HCP is in development. All parties involved should
remember that it is the applicant with whom the Services are negotiating and who will be
responsible for decision-making and implementation of the approved HCP, not the consultants or
other representatives.
Developing an HCP requires extensive coordination between the applicant, the Services, and
other involved parties (e.g., consultants, State or local agencies, tribes, or other stakeholders).
The process can be complex; therefore, the key to success is close coordination with the Services
early in the process, maintaining frequent contact throughout, and maintaining momentum once
the commitment is made to proceed.
3.9 Planning Resources Available
As noted in Chapter 2.5.1.1, training at the FWS National Conservation Training Center (NCTC)
or locally provided workshops are available for applicants and consultants. FWS is developing
Web-based conservation planning tools (Chapter 8.2) that will be available for use by the
Services and the public in formulating an HCP mitigation plan. The web-based Information for
Planning and Conservation (IPaC) is currently available for certain species and situations
focused on section 7 consultations.
HCP planning assistance is available through the FWS’s Section 6 Cooperative Endangered
Species Conservation Fund (see the HCP Handbook Toolbox) in the form of competitive grants
we award each year. FWS awards section 6 grants to States only, so if a potential applicant wants
to submit a proposal, they will need to coordinate with the appropriate State agency that holds a
cooperative agreement with FWS. FWS field offices should work closely with the States and
project proponents to develop competitive proposals that fit grant criteria and establish feasible
schedules.
Some programmatic plans in development receive section 6 awards over consecutive years. FWS
staff must oversee these to ensure work is progressing toward HCP development in a timely
fashion and consistent with the grant agreement. Each fiscal year’s grant objectives need to be
clearly defined, and if a given task carries over from year to year, the grantee, in their proposal,
must try to differentiate aspects of the task that might change from one year to the next. Creating
milestones for completion of tasks is a helpful way to show and track progress. Staff must ensure
that grant dollars are budgeted towards activities that result in actual progress (collect biological
information, hold stakeholder meetings with defined purposes, develop outreach, draft a section
of the HCP, etc.) so that we avoid funding vague, undefined purposes or an indefinite series of
studies or modeling.

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3.10 Making and Documenting Decisions
There are a seemingly endless series of decisions made throughout HCP development and
implementation. These can be one time decisions (e.g., which species to cover), or recurrent
decisions (e.g., which management action to take) that are made throughout implementation of
the plan. Some decisions are more important than others. Some decisions can be made on the fly
and others may require more deliberate thought to consider the options. Decisions controlling
management actions or responses to changed circumstances should be based in conceptual
models that have been constructed for monitoring and adaptive management. If every decision in
an HCP went through an in-depth process to determine the answer, the HCP would never be
completed. However, some decisions are important enough that a structured process is
warranted.
Unstructured decisions might be appropriate when:
● the answer is obvious,
● there are few consequences to the decision, or
● there is little difference between options.
Structured processes to make decisions might be appropriate when there is:
●
●
●
●
●
●

a high chance of litigation,
a high level of uncertainty,
significant risk to conservation of species,
potentially significant costs to applicant,
long term consequences from the decision, or
transparency is particularly important.

If we determine that a structured process is appropriate, identifying the barriers to making the
decision is essential in focusing the structured process. Staff must be as specific as possible about
the barriers to the decision:
● Is there some aspect of the science in question, and if so, what exactly?
● Are there value differences between the decision makers? What are those differences?
● Is there a specific source of uncertainty that is impeding the decision from being made?
We must also be realistic about the barrier so staff can understand it and figure out how to work
through it.
Staff should make decisions as necessary and in a timely manner. They should use the best
information available and, document the logic. If, on the other hand, a decision does not have to
be made and it is postponed, we should ask:
● Why was that decision postponed?
● What value does postponing the decision have?

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There should be a clear rationale for postponing any decision and it should be documented so
everyone can refer to it later.
Regardless of the level of deliberation, Services staff must document the outcomes and ensure all
relevant personnel are informed. This can be as simple as having meeting notes circulated to all
attendees, so that everyone has an opportunity to provide feedback. These types of records
become more important in complex, multi-year planning efforts to minimize delays due to staff
turnovers and to avoid repeated discussions over previously settled issues. Some large-scale,
multi-agency agreements have used regularly-updated memoranda to document the status of
their negotiation. Such memoranda can memorialize decisions made, tentative agreements,
responsibilities assigned, etc. See Chapter 4.7 concerning records retention in a case file.
Simple tables with criteria used to consider which species to cover, for example, are very helpful
in documenting the logic and making decisions clear. Keeping good records will help keep HCP
planning on track, and it creates the Services’ administrative record.

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CHAPTER 4: COMMUNICATING AND COORDINATING
4.0
4.1

Effective Communication
Identify Stakeholders
4.1.1 National Marine Fisheries Service (NMFS)/U.S. Fish and Wildlife Service (FWS)
4.1.2 Other Federal Agencies
4.1.3 Federally Recognized Tribes
4.1.4 State Agencies
4.1.5 Federally-Elected Officials
4.2
Establish Communication Objectives
4.3
Messaging and Channels
4.3.1 Written Media
4.3.2 Personal Contact with Stakeholders
4.3.3 Public Comments
4.3.4 Public Meetings
4.3.5 Public Hearings
4.3.6 Focus Groups
4.3.7 Nominal Group Process
4.3.8 Workshops and Forums
4.3.9 Advisory Committees
4.4
Analyzing Stakeholder Input
4.5
Implementation and Monitoring
4.6
Effective Coordination
4.6.1 Develop a Project Charter
4.6.2 Develop a Work Breakdown Structure
4.6.3 Establish an Organizational Structure
4.6.4 Establish Management Procedures
4.7
Maintaining an Administrative Record
4.7.1 General Guidelines
4.7.2 Documents That Should Be Included in the Administrative Record
4.7.3 Other Documents That May Be Included in the Administrative Record
4.7.4 Documents that Generally Should Not Be Included in the Administrative Record
______________________________________________________________________________
4.0 Effective Communication
While communication is effective when our stakeholders receive information relevant to their
needs, it is not effective when we simply tell the public what we are doing. Stakeholders are
individuals and groups affected by, or who can affect the outcome of a Habitat Conservation
Plan (HCP) project. They are also people who may simply have an interest in an HCP project for
intellectual, academic, or political reasons, even though they are not directly affected by it. While
stakeholder interests in an HCP will vary, the more they stand to benefit or lose, the stronger
their interest is likely to be. The degree of stakeholder involvement in HCP projects depends on
each stakeholder’s particular interests and motivations. Most stakeholders are satisfied with an
opportunity to simply learn about the HCP project, while others, such as those with specific
interests and motivations, may need additional opportunities for involvement. Without exception,
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facilitating effective and efficient communications with and among stakeholders has important
advantages:
● it increases the chance of the HCP being successful. While it’s unrealistic to think that
everyone is going to support the HCP project, identifying stakeholders and being
responsive to their needs will make it more likely that the HCP project will succeed.
● it reduces the chance of being blindsided by issues and concerns you didn’t know about.
Stakeholder issues and concerns can be aired and resolved before they become timeconsuming (and often embarrassing) stumbling blocks at the 11th hour.
● it creates and bridges social capital for the conservation community at-large. Social
capital is the network of acquaintances, friendships, and other social currency that exist in
communities, which can be used to facilitate cooperation and relationship building.
Bridging social capital creates connections among diverse groups.
● it establishes with stakeholders that we are fair, ethical, and transparent making it more
likely stakeholders will support us in other circumstances down-the-road.
● it reduces the number of potentially significant issues and unresolved conflicts that need
to be addressed in our National Environmental Act Policy Act (NEPA) documents.
However, before anyone reaches out to stakeholders, it is important that the people involved in
an HCP project, particularly the decision makers and those responsible for communicating and
coordinating with stakeholders, all agree on how the communication process is going to work.
To this end, we have identified a six step communication planning process, a few guidelines and
principles, examples, and a variety of tools and techniques which we will maintain in the HCP
Handbook Toolbox to help you facilitate effective and efficient communication among the
Services, the applicant, and stakeholders. A point worth mentioning is that not all HCP projects
need extensive communication and coordination beyond what is necessary and appropriate
between the Services and the applicant. It is the HCP practitioner’s job to determine what
amount is appropriate for a particular project.
4.1 Identify Stakeholders
It has been said that the key to success in the public sector is satisfying key stakeholders. If we
don’t know who our stakeholders are, what criteria they use to judge the organization, and how
we are performing against those criteria, there is little likelihood that we will know what to do to
address the concerns of our stakeholders.
There are a number of ways to identify stakeholders associated with an HCP project. Brainstorm
with people inside the Services, confer with other HCP practitioners, and consult with partners
and the applicant. Consulting with the applicant is probably the most effective way to identify
stakeholders because applicants generally know who their stakeholders are, and what issues and
concerns are typically associated with their projects. Whatever technique you choose, think about
every possible way that the HCP project might benefit or cause problems for others, both directly
and indirectly. Some stakeholders will have an interest in helping carry the HCP project forward,
while others may be equally intent on preventing it from happening. It is essential to identify and
understand both of these groups.

4-2

It is also important to understand a stakeholder’s interests, motivations, and power bases; how
they relate to one another; their understanding and attitude toward HCPs, the Endangered
Species Act (ESA) and the Services; and their expectation for involvement in the HCP project.
For local government led HCPs, and maybe some other large HCPs, landowners, agriculturalists,
developers, environmentalists and others are all critical stakeholders. These sectors need to be
involved in the process with the applicant from the very beginning, have representation on
advisory and steering committees, have input in resolving differences, and generally be part of a
discussion. Gifford Pinchot (1947), in describing the philosophies and practices that guided the
establishment of many national forests, said "To start with I had to know something about the
people, the country, and the trees. And of the three, the first was the most important."
Communicating effectively with stakeholders also requires you to understand yourself. Knowing
who or what you represent and how that influences your perspectives is important to
acknowledge, especially before you work with stakeholders who represent a different
perspective. It is natural to want to share our beliefs or perspectives with others, but in certain
contexts you may be mistaken for refuting another’s perspective, or at worst being adversarial. It
is important to remain objective when listening to others share their concerns. This is not a point
in the process to haphazardly try to educate or dispel what you believe to be myths. Operate
under the assumption that another person’s perception is their reality, whether or not it matches
up with what you know. Knowing where there are points of confusion or where misinformation
has been spread will help you to target the messaging later in the process when you build the
communications strategy. Understanding stakeholders also requires you to be honest with
yourself if you are not the appropriate person to gather stakeholder perspectives. In instances
where an issue is extremely contentious or there has been a perceived breach of trust between the
Services and a stakeholder group, you may need to find a neutral party to help you work through
the issue.
There will always be a range of knowledge, interest, and attitudes among stakeholders associated
with the HCP project, and communication methods will vary depending on the particular needs
and expectations of each stakeholder group. What you learn will influence what you say, how
you say it, when you say it, and ultimately, who should be the one to say it. Gaining this type of
insight pays enormous dividends for you as a communicator. Take the time to understand
stakeholders. The following agencies and people generally have a stake in most of the HCPs.
4.1.1 National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service
(FWS)
The Services have an interest to see that any issued incidental take permits work as intended. In
addition, we have responsibilities at a landscape and ecosystem scale for other trust resources
besides threatened or endangered wildlife. Our incidental take permit actions should be
consistent with all of our conservation obligations, so in addition to our role as ESA regulator,
we have a role as one of the stakeholders in an HCP.
Section 7(a)(2) of the ESA requires all Federal agencies to ensure that "any action authorized,
funded, or carried out by 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
designated critical habitat. In the past, some HCP practitioners viewed the section 7 consultation
4-3

for the section 10(a)(1)(B) permit as an independent review process that occurs after the HCP
has been prepared. However, this approach often left the permit applicants and the section 7
biologists with no guarantee that the process of meeting the requirements of section 10(a)(1)(B)
would result in issuance of the permit, since a section 7 consultation conducted late in the
process could result in the discovery of unresolved issues, the return of an inadequate HCP to the
applicant, or a jeopardy biological opinion. To avoid this, we will begin integrating the intraService section 7 consultation process at the start of the HCP development phase, and to regard
them as concurrent and related, not independent and sequential, processes. In procedural terms,
this means that considerations of intra-Service section 7 consultation requirements should start at
the beginning of the HCP development phase, not during the permit processing phase.
4.1.2 Other Federal Agencies
During the development stage of an HCP, the Services provide technical assistance and
information concerning regulatory and statutory requirements to the applicants to ensure that the
application is complete. At the same time, we encourage applicants to invite and include other
Federal agencies who can use their existing authorities, expertise, or land in support of the HCP
development and implementation process. It is particularly important to encourage the
participation of other Federal agencies that may own or manage land either within or near the
land that the applicant is proposing that the HCP will cover. For instance, an applicant seeking an
incidental take permit for a pipeline right-of-way project that will cross land owned by the
National Park Service (NPS) may also need an NPS Special Use Permit (SUP). Issuance of
SUP’s by the NPS, including specific conservation measures for listed species, may be governed
by NPS policy in NPS management plans, related NEPA documents, and prior section 7
consultations with the Services, which is important to understand early in the process. Where
applicants have both ESA and Clean Water Act permitting needs, Services staff should work
with the Army Corps of Engineers to identify coordination activities that provide efficiencies
through concurrent and integrated environmental review/permitting processes.
4.1.3 Federally Recognized Tribes
How we communicate with federally recognized tribes is governed by specific laws, regulations,
Secretarial Orders, and policies. For instance, Department of Interior (DOI) Secretarial Order
3206 (June 5, 1997) on Native Americans and the Endangered Species Act clarifies the
responsibilities of Federal agencies for actions taken under the ESA (see HCP Handbook
Toolbox) that may affect Indian lands, tribal trust resources, or the exercise of American Indian
tribal rights. This Secretarial Order requires Federal agencies to make an effort to establish
effective government-to-government working relationships with tribes to achieve the common
goal of promoting and protecting the health of ecosystems on Indian lands. Thus, whenever the
activities under an HCP may impact tribal trust resources, the exercise of tribal rights, or Indian
lands, we must consult with, and seek the participation of, the affected Indian tribes to the
maximum extent practicable (MEP). This includes providing affected tribes adequate
opportunities to participate in data collection, consensus seeking, and associated processes. If a
field office does not already have an established working relationship with potentially affected
tribes, then the Services must work with the Regional HCP Coordinator and Regional Tribal
Liaison to reach out to them. It is important to make every effort to engage potentially affected
tribes. Outreach to the tribes can occur simultaneously or right before any of the HCP/NEPA
4-4

public participation processes, but the government-to-government consultation should occur
separately from the general public process. Nothing in the Secretarial Order prohibits us from
proceeding with HCP and NEPA processes if a tribe does not respond to our outreach when the
outreach effort was the maximum extent practicable. See the HCP Handbook Toolbox for more
information on Secretarial Order 3206, the FWS Native American Policy, the FWS Tribal
Consultation Handbook, the DOI website on consulting with tribes, and NOAA Procedures for
Government-to-Government Consultation With Federally Recognized Indian Tribes and Alaska
Native Corporations.
4.1.4 State Agencies
The need for effectively communicating and coordinating the HCP project with the States is
vital. Many federally-listed species are also State-listed species, with similar prohibitions to
unlawful take. While many of these States have procedures to authorize take, others do not. For
States that have these procedures, some will accept an ESA section 10 HCP in lieu of their own
conservation plan requirement. Services HCP practitioners must understand these requirements,
and facilitate effective communication and coordination between the applicant and the State.
4.1.5 Elected Officials
Communicating with elected officials is typically dictated by agency protocol at both national
and Regional scales, which may change over time or be unique to specific Members of Congress.
It is important that you consult with your External Affairs office or other appropriate office early
in the process so that you understand proper protocols for communicating with these and other
special groups.
Helpful Hint: To facilitate efficient communications with stakeholders, it is often helpful to organize
and group stakeholders by their potential relationship to the HCP project. Consider using the
following four groups of stakeholders.

Organize Stakeholders
Stakeholder Group 1 - individuals or groups who will be directly affected by the HCP project,
either positively or negatively, as a result of issuance of an incidental permit. This category of
stakeholders, often called “key stakeholders”, are those who can have a positive or negative
effect on the HCP project, or who are particularly important within or to the agency. Examples
of key stakeholders might be State natural resource agency personnel and special interest
groups. Key stakeholders are often connected to large networks, and thus can both reach and
sway people far and wide.
Stakeholder Group 2 - individuals or groups who have a vital interest in what we do and how
we perform, have been actively involved in endangered species issues in the past, and may
require additional opportunities to participate to fully explore their issues and needs. This
category of stakeholders might include certain non-government organizations (NGOs); special
interest groups; Federal, State, and locally elected officials; and landowners within the HCP
planning area.
4-5

Stakeholder Group 3 - individuals or groups who have an interest in what we do and how we
perform, have been involved in conservation issues in the past, and may or may not require
additional participation to fully explore their issues and needs. This category of stakeholders
might include certain NGOs, print and broadcast media, and landowners near the planning
area.
Stakeholder Group 4 -individuals or groups who are potentially interested in what we do and
how we perform, have not been involved in HCP-related issues in the past, and would be
generally content with receiving information about the process through mailings, internet
notices, or through other more general means.
Although we will provide information regarding the HCP project to all stakeholders, we may
need to provide additional opportunities for participation to stakeholders in groups 1 through 3
to ensure that their issues and needs are adequately explored and understood. Generally,
stakeholders in category 1 may be part of the planning Team, and they may take an active role,
particularly in the development of complex HCPs.
4.2 Establish Communication Objectives
After the stakeholders have been identified and their interests and motivations understood, the
next step is to decide on a desired response from each stakeholder or stakeholder group. The
ultimate response from most stakeholders is some expression of support for the project and
behavior that confirms it. First we need to know where the stakeholders are in terms of their
“readiness to express support.” Consider the following example.
Assume we are working on an HCP with farmers located in a region rich with caves that support
an endangered species. Runoff from livestock farms in the region is getting into the groundwater
supply that feeds these caves, which is having an adverse effect on an endangered fish species.
There are 50 farms located in this region represented by 250 farmers (stakeholder group) that
may be contributing runoff to these caves. One of the FWS’s recovery goals for this species is to
reach out to farmers in the region to promote the recovery of this endangered species. As one
field office biologist asked, “Wouldn’t it be wonderful if through this HCP process we could get
all the livestock farmers in this region to control their runoff?”
In this example, three types of information are valuable to us before we start developing
communication objectives. The first would be gaining some insight into where the livestock
farmers are in terms of their awareness of the problem, which is livestock runoff getting into the
water supply that feeds the caves that support the endangered species. You can gain some
understanding by developing a Communications Spectrum for the stakeholder group. The
Communication Spectrum for this stakeholder group would look something like Table 4.2.

4-6

Table 4.2 - Communication Spectrum for Livestock Farmers in the Region
LEVEL OF
AWARENESS
SCALE

WHAT THAT MEANS

PERCENTAGE OF
STAKEHOLDERS
(# OF FARMERS)

UNAWARE

Never heard about the problem.

40% (100)

AWARE

Heard about the endangered fish species, but
nothing else.

25% (62)

COMPREHENSION

Heard about the endangered fish species and
problems associated with runoff, but not
convinced runoff from livestock farms is the
problem.

20% (50)

CONVICTION

Heard about the endangered fish species and
are convinced runoff is a problem, but
currently not taking action aimed at
eliminating runoff from their farm.

10% (25)

ACTION

Fully understand the problem, support
efforts to conserve the endangered fish
species, and are taking action to eliminate
runoff from their farm.

5% (13)

The second piece of information that is valuable is to gauge the stakeholders familiarity with the
agency; if you meet the stakeholders, one option is to ask them to circle the appropriate number
on a Familiarity Scale (Figure 4.2a).
Figure 4.2a – Familiarity Scale
1
2
Never heard of

3
4
Heard of only

5
6
7
8
9
10
Know a little bit Know a fair amount Know very well

If most of the stakeholders circle the first two or three categories, our task will be to build greater
awareness of the Services. However, if most stakeholders said they were familiar with the
Services, stakeholders should be asked how they feel about the agency, using a Favorability
Scale (Figure 4.2b), which is the third piece of information.
Figure 4.2b – Favorability Scale
1
2
3
4
Very unfavorable
Unfavorable
Favorable

5
6
Indifferent

4-7

7
8
Favorable

9
Very

10

If most respondents check the first two or three categories, the Services will need to overcome a
negative image problem, or pass off the role of communicator to another entity. The three scales
would then be combined to develop insight into the breadth of the communication challenge.
The next step is to decide on a desired response from this stakeholder group. The ultimate
response is gaining the support of all livestock farmers in the region to control runoff from their
farms (i.e., to take some form of action conducive to the problem). However, from the
Communications Spectrum we know that 100 of the livestock farmers in the region may be
unaware that runoff from livestock farms is having an adverse effect on endangered species,
while 50 others may recognize the problem, but are not convinced they need to do something
about it. In this case, we develop communication objectives to: (1) inform those farmers who are
unaware that a problem exists, and (2) motivate those farmers that are aware of the problem, but
who are not yet taking action to control runoff from their farming operations. Communication
objectives for this example might look something like this:
Examples of Communication Objectives
1. Within 6 months, 100 percent of the livestock farmers in the karst recharge area will
recognize runoff from livestock farms as a serious problem facing the endangered
fish species.
2. Within 1 year, 50 percent of the livestock farmers in the karst recharge area will be
able to identify at least one conservation program that addresses runoff from
livestock farms (i.e., a program that provides technical/financial assistance to
farmers).
In the example above, we describe a planning and organizational approach aimed at potentially
moving a stakeholder group from their present state of readiness to act to a higher state of
readiness to act (i.e., unaware of the problem → aware of the problem → comprehend the
problem → conviction → action). However, before you carry out the process, it is critically
important that you properly “set-the-stage” with the stakeholder group so you don’t end up at the
11th hour with a project held up because of disgruntled stakeholders.

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Setting the Stage
Bleiker et. al. (2000) said there are four key principles or “life savers” essential to building
support for organizations and their actions. According to Bleiker “whatever you say,
whatever you write, whatever you do, make sure that your public understands these four
points:”
1. Establish that there is a problem or opportunity, one that must be addressed.
Rationale: Few people will support, accept, or even be interested in something that they do
not perceive as a problem or issue. Our communication must consistently and clearly show
that there are important issues that must be addressed here and now.
2. Establish that it’s our obligation to tackle the problem or opportunity.
Rationale: People tend to resist solutions or plans that have solutions to issues of importance
to them if they feel the individuals or organizations proposing the solutions have no
responsibility or obligation for tackling the problem. We must clearly demonstrate that the
Service is dealing with issues for which it has an obligation to address. We must establish
that, given our mission, if we did not address this problem or opportunity, we would be
irresponsible and not be performing the duties of our jobs.
3. Establish that your approach is reasonable, sensible, and responsible.
Rationale: People do not support ideas that do not strike them as sensible. We must ensure
that our activities and decisions consider all relevant information, are based on sound
science, and result in sound management decisions that balance conflicting uses in an
appropriate manner.
4. Demonstrate that you listen and care.
Rationale: Nobody likes to say something and be ignored. We must be open to all input and
consider that input on its merits. If someone has presented an idea to the Services that
cannot be implemented for some reason, we must provide a prompt, clear response as to
why we could not use the idea. Where feelings run high, we must demonstrate that we do
care about what others think and we must acknowledge the diverse input.
By incorporating these four principles into our communications, the Services will have a
much better chance of achieving informed consent among its stakeholders.

4-9

Communication objectives that incorporate these principles might look something like this:
Examples of Communication Objectives Incorporating the Principles of “Setting the
Stage”
● Within 6 months, 100 percent of livestock farmers in the region will understand that
there is an important natural resource issue that needs to be addressed through
planning.
● Within 1-year, 90 percent of livestock farmers in the region will understand that it is
the responsibility of the Service to protect threatened and endangered species (i.e., it
is our duty to tackle this issue).
● Within 2-years, 80 percent of livestock farmers in the region will feel that the HCP
process is open and fair, and they will be satisfied with the opportunities for public
involvement (i.e., our approach is reasonable, sensible, responsible).
● At the conclusion of the HCP process, 80 percent of livestock farmers in the region
will feel that the Service listened to their issues and was responsive to their concerns
(we listened and we care).
4.3 Messaging and Channels
Once we have identified the stakeholders, gained some prior knowledge about them, and decided
on a desired stakeholder response, the next step is to develop messages. Messaging requires
solving four problems, which means deciding on:
1.
2.
3.
4.

Message Content (what to say),
Message Structure (how to say it logically),
Message Format (how to say it symbolically), and
Message Source (who should say it).

It is important to state up-front that communicators must come to agreement on what needs to be
said before any time and money is spent on how best to say it and through which channels. What
can you say to farmers in the region that will move them from their present state of readiness-toact to a higher state of readiness-to-act (i.e., unaware → aware → comprehension → conviction
→ action)?
To get at this question, brainstorm with people who have prior knowledge and experience with
the stakeholder group. Think about what the stakeholder group needs to know and how they
might be able to change their actions in simple ways to address the problem. Understand what
motivates them. The more closely you tie the message to a message that resonates within the
stakeholder group, the more likely you are to achieve the desired outcome. Be clear about what
you want the stakeholder group to do, and make sure they have tools to do what you’re asking.

4-10

Ask:
● why have they not taken action on this issue in the past?
● what are potential barriers and benefits that the stakeholder group may associate with the
action?
Understanding these questions and concepts will help you frame the messages in more
appropriate ways. Our goal in communicating with others is to share and obtain information in a
clear and concise manner.
Helpful Hint: Keeping the following “rules of the road” in mind will help us accomplish this goal.

Rules of the Road
● promptly respond to misinformation about the HCP project or the agency.
● communicate sensitive information promptly.
● Treat everyone with respect and all concerns as legitimate.
● Consider the merits of all issues.
● Be available for all who have something to say or need information.
● When we don’t know, admit it. Explain that we will work hard to find the information.
● Help all interested parties understand who we are, what we do, and why we do it.
After you decide what needs to be said to whom, the next step is to identify the channels most
appropriate for communicating with stakeholders. The channels we list below span a continuum
from simply providing information to stakeholders to → soliciting information from stakeholders
to → facilitating shared decision making with stakeholders. For most HCP projects, you can
identify appropriate communication channels by simply asking stakeholders what will work best
for them. For large or complex HCP projects, commercial databases that contain demographic
and lifestyle data, along with media preferences for consumers, are available.
4.3.1 Written Media
Written media includes newsletters, brochures, newspa-per and magazine articles, displays in
public places, Websites, etc. These methods provide for a one-way flow of information from the
agency (or applicant) to the stakeholders and they are usually designed to garner support for
agency actions or simply provide information on issues of importance. There are a variety of
commercial tools to help you match your stakeholders with the most appropriate channels and
written mediums. Factors to consider when selecting a medium include the amount of time the
message will take to reach the stakeholder, cost, and whether or not it conforms with your
confidentiality need.
4.3.2 Personal Contact with Stakeholders
Personal contact with stakeholders usually involves Services personnel talking informally with
key stakeholders. Through these discussions we can gain a sense of the issues or concerns around
4-11

a proposed Federal action. Important considerations when you interact personally are to keep a
contact log of the conservations you have with stakeholders and always be aware that the
conversation could be recorded and released to the public.
4.3.3 Public Comments
We receive public comments on Services actions, typically solicited through the Federal
Register (through Notices of Intent and Notices of Availability) as letters, telephone calls, and
increasingly through electronic media (e-mail, regulations.gov, etc.). Solicited and unsolicited
public comments are a major source of information an agency receives. However, public
comments do not allow for discussion among participants or between participants and our
personnel.
4.3.4 Public Meetings
Public meetings are forums in which our staff can present information to interested stakeholders.
Many public meetings, such as “open house” type public meetings, are designed to encourage
discussion and feedback. Public meetings can be very effective and useful for conveying
information, educating the interested public, and identifying interested parties. They often allow
for discussion between agency staff and the public in a one-on-one or small group setting which
can be more congenial and usually allows for a greater exchange of ideas than a public hearing
format.
4.3.5 Public Hearings
Public hearings are a common method for soliciting stakeholder input on agency actions.
Hearings provide all or selected participants an opportunity to present their opinions on an issue,
usually in a formal manner in an allotted amount of time (often 2-5 minutes each). The
information is recorded and becomes part of the public record. Laws and agency regulations
often mandate public hearings. The major criticism of public hearings is that they provide little
opportunity for discussion and feedback among participants and between participants and agency
representatives.
4.3.6 Focus Groups
Focus groups are a structured method for collecting stakeholder opinions. They are facilitated
discussions on specific issues. Participants are often invited because they are either subject
matter experts or because they represent or understand certain viewpoints. Discussions are
guided by a set of predetermined questions. There is limited opportunity for feedback between
the agency and participants, but substantial opportunity for discussion among participants.
4.3.7 Nominal Group Process
A nominal group process is another structured technique for gathering stakeholder feedback. It
involves asking small groups of participants (usually 6-10) to brainstorm on a specific question
or series of questions. Responses are then discussed and ranked. The nominal group process
allows for some feedback between the agency and participants, particularly as it allows the
4-12

agency to respond immediately to individual concerns. It also provides for considerable
discussion among participants.
4.3.8 Workshops and Forums
Workshops and forums provide an opportunity for discussion and feedback. They can be used to
identify and dis-cuss important issues, and help participants arrive at agreements. They generally
last longer than other meeting types, from a half-day to several days. Two important criterions
for workshop success is having the right mix of participants that represent the stakeholders you
are trying to reach and having an experienced facilitator.
4.3.9 Advisory Committees
There are two types of advisory com-mittees that are often used in HCP projects. They are: (1)
citizen advisory committees and (2) technical advisory committees. Citizen advisory committees
involve citizens who are called together to represent the views of the wider public. Technical
advisory committees are committees typically comprised of experts from outside the
or-ganization who bring technical or scientific expertise to the HCP project (e.g., forestry
practices, economics, statistics, etc.). Both forms provide an opportunity for interaction between
the participants and the Services. Members in both types of committees also expect to have their
input included in the decision-making process. Important considerations for advisory committees
include:
●
●
●
●
●
●

who establishes them (i.e., applicant, Services, others),
who the stakeholders are,
how their representatives are chosen,
who facilitates the committee,
what technical skills are needed, and
what the specific role of the committee will have in the HCP project.

Note: The Federal Advisory Committee Act (FACA) governs the establishment of and
procedures for committees that provide advice to the Federal Government when at least one
member of the committee will be from outside of a government agency (Federal, State, or local).
FACA’s statutory triggers do not exist where a permit applicant or project proponent meets with
agency staff members concerning a proposal, nor is it applicable to a contractor or consultant
hired by a Federal agency. It is also important to understand that FACA’s requirements apply
when the agency establishes, manages, or controls a group in order to obtain group advice (as
opposed to when you are seeking advice from individuals). In other words, we may consult with
groups, so long as we only seek individual advice. FACA risks increase if these consultations
become repeated and appear like we are seeking group advice. For more information on the
requirements of the FACA, consult the General Services Administration's Committee
Management Secretariat at or consult your legal counsel.
4.4 Analyzing Stakeholder Input
Much of what has been discussed in this chapter has focused on facilitating effective
communication with stakeholders. What we do with all the information we receive is just as
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important. One effective tool for analyzing and understanding qualitative information is “content
analysis.” Content analysis involves determining the meaning, purpose, or effect of any type of
communication, such as literature, newspapers, or broadcasts, by studying and evaluating the
details, innuendoes, and implications of the content. It helps you see where there are echoes (i.e.,
the same thing being said from different people or groups), saturation (i.e., no matter how much
more data you collect you receive no new information/perspectives), discordance (i.e., groups are
saying different or opposite things) and lone truth tellers (i.e., a topic is only mentioned once or a
few times, but it is provocative because it reframes the issue in a new or different way that may
be important to recognize). This analysis is important when building a stakeholder
communication plan, especially when developing targeted messaging, because it links back to
the story in which the stakeholder groups believe.
4.5 Implementation and Monitoring Communications
With the vast number of communication channels and messages available for reaching
stakeholders, it is imperative that we manage and coordinate the communication process
effectively. Mis-managed communications lead to ill-timed messages and missed opportunities,
messages that lack consistency and create confusion among stakeholders, or messages that are
not cost-effective and burn up the communication budget. For instance, for HCP projects
involving an Environmental Assessment (EA) or Environmental Impact Statement (EIS), it is
important to be precise about the underlying Federal action. For some projects, there has been
considerable confusion over what the actual “scope” of a Federal action was in response to an
incidental take permit application. Misunderstanding the scope often leads to an overstatement of
impacts, potentially foregoing the use of our categorical exclusions or “mitigated EAs,” and
encumbering applicants and the Services with unwarranted, costly, and time-consuming EIS’s.
A basic tenet underlying incidental take permit applications is that the Services are not
authorizing the applicant’s activities that are causing the take. Instead, the Services are
authorizing the incidental take that results from the applicant’s covered activities. However,
stakeholders often do not understand this concept, at least initially, so we find ourselves spending
weeks or months responding to issues and concerns that are associated with an applicant’s
project for which the Services have no control over via our ESA authority. For these issues and
concerns, we must clearly and consistently distinguish between our proposed action (i.e.,
issuance of an ESA incidental take permit for the purpose of authorizing incidental take for
covered activities within the context of an HCP) and the specific activities of the applicant. We
must never defend or express our opinion on the advisability or appropriateness of the
applicant’s otherwise lawful activities except as they relate to impacts to resources over which
the Services have responsibility. However, depending on the level of controversy, we may want
to ask the applicant to address these issues or concerns.
To ensure that we are communicating effectively, we must periodically check our progress and
effectiveness in implementing the communication plan. If we are not communicating in a manner
that meets the needs of the stakeholders, we must consider how we can modify our approach to
be more effective. Effective communication is a measure of how well we are communicating, to
a defined audience, information and a frame-of-mind that ultimately stimulates action (or
inaction). We must consider how our communication is working both internally and externally.
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Measured Results
● Not the number of stakeholders reached by the communications....
● Not what the stakeholder or stakeholder group likes or dislikes about the way you
communicate…
● But the changes that occur in the stakeholders awareness, comprehension,
conviction, and behavior as a result of the communications.
4.6 Effective Coordination
In the past, many HCP practitioners approached communication and coordination simply to
fulfill what was required under the NEPA process. NEPA regulations required us to inform the
public and obtain comments from the public, but not necessarily involve the public. How public
input is to be used in agency decision-making was not discussed in the regulations until fairly
recently. Coordinating with stakeholders involves listening to and understanding their diverse
opinions and motivations, while at the same time, giving those people who make the effort to
involve themselves in the HCP process a sense of ownership in the outcome.
Shared learning, negotiating, building trust, and planning and executing an effective stakeholder
involvement strategy all take time. NEPA regulations state agencies must “make diligent efforts
to involve the public…” (40 CFR Part 1506.6), while Department of Interior (DOI) NEPA
regulations go even further by stating “Responsible Officials must, whenever practicable, use a
consensus-based management approach to the NEPA process” (43 CFR 46.110) (see the HCP
Handbook Toolbox). A consensus-based management approach involves “outreach to persons,
organizations, or communities who may be interested in or affected by a proposed action with an
assurance that their input will be given consideration by the Responsible Official in selecting a
course of action.”
Attitudes have changed as managers have become more comfortable with involving stakeholders
and agencies have learned through experience that the additional time and money spent
consulting, coordinating, and cooperating with key stakeholders saves us time and money in the
long-run. It helps us avoid administrative appeals, lawsuits, and other forms of protest, which
often take years to complete. HCP projects are multidisciplinary endeavors that typically involve
people with varied backgrounds, disciplines, and motivations (e.g., biologists, engineers,
lawyers). Therefore, to coordinate an HCP project effectively implies that someone acts as a
central point (i.e., “project manager”), ensuring close contact among those actively involved in
the HCP project, for the purpose of developing and maintaining productive relationships, so that
the HCP project meets everyone’s expectations about the appropriate amount of time, budget,
and quality. HCP projects usually stall not because of a lack of technical skills on the part of
those executing the project, but because of inadequate coordination of project activities with the
people involved. The subsections below describe a few key concepts to consider when tasked
with coordinating an HCP project.

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4.6.1

Develop a Project Charter

A project charter (e.g., project agreement, project statement, MOU, MOA) is a concise statement
of purpose and goals, principles and values, and roles and responsibilities that establishes the
tone and direction for developing the HCP. A project charter is more appropriate for complex
HCPs. It should be developed early in the HCP process and describe all aspects of the HCP
project at a general level. Once approved by the applicant and the Services, it becomes the basis
for the upcoming work. For most HCP-related projects, the project charter should reflect:
● Applicant’s purpose and need - Why take action? Why here? Why now?
● Objectives and scope - What are the potential benefits to the applicant, the species, and
the public?
● Approach and organization - How will the HCP be developed? Who are the decision
makers for the applicant and the Services? How will the Services communicate with the
applicant? Who are the project managers? Who is the planning team and what are their
roles and responsibilities.
● Assumptions and concerns - What are we taking for granted (e.g., ability to estimate
take)? What are the major concerns (e.g., ability to monitor take)?
4.6.2

Develop a Work Breakdown Structure

After you’ve prepared the project charter, create a work breakdown structure (e.g., Gantt chart).
The work breakdown structure is a hierarchical decomposition of the work that the project team
needs to accomplish, including assigning resources and estimating work as far out as reasonable.
It is the primary tool for organizing HCP development activities into manageable sections.
Helpful Hint: Use a prior work breakdown structure from a similar HCP project as a model, if one
exists.

4.6.3

Establish an Organizational Structure

Who is the project team and what are their roles and responsibilities? Who are the key decision
makers for the HCP project, both within the Services and from outside the Services?
4.6.4 Establish Management Procedures
Project management procedures explain how we will resolve disputes, make decisions and
manage issues, address scope changes, ensure quality control and effective communication, etc.
These may include regular team meetings, conference calls, emails, status reports, or other tools
tailored to the project’s specific needs (i.e., contact log, request tracking spreadsheet, etc.).
Effective project management procedures prevent disputes, conflicts, and delays. It is critical that
all parties have a common understanding of how the HCP process will be managed, and remain
committed to fully using the tools and techniques to which we all agreed.

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4.7 Maintaining an Administrative Record
Keeping a complete administrative record is very important. We intend for the guidelines in this
section to provide a framework for assembling and maintaining an administrative record for
HCPs and the related NEPA processes. They were developed from recent Department of Justice
and DOI administrative record guidance.[1] Since the guidelines only provide a framework for
what generally should be included in the administrative record, HCP practitioners in the FWS
should direct questions about individual documents to the Office of the Solicitor. The National
Oceanic and Atmospheric Administration (NOAA) General Counsel has issued guidelines for
compiling an agency administrative record online (see the HCP Handbook Toolbox). Documents
that do not fit the general categories described in these guidelines should be placed in a
temporary file that you can periodically review to determine whether to include them in the
administrative record.
Generally, an administrative record should contain the complete rationale of the agency decisionmaking process, including options considered and rejected. It should include important
substantive information that was presented to, relied on, or reasonably available to the decisionmaker. The administrative record should establish that the agency complied with relevant
statutory, regulatory, and agency requirements, and should demonstrate that the agency followed
a reasoned decision making process.
4.7.1

General Guidelines

● date and label all documents.
● identify the author(s)/source of all records and documents.
● identify those documents that are protected by attorney-client or deliberative-process
privilege.
● keep electronic and paper copies of all records in accordance with policy.
● organize materials in a logical order, e.g., chronologically or by topic.
● avoid chain emails with multiple topics and responses.
● avoid emails that commingle personal and official information.
● If you obtain information from a Website, keep a contemporaneous copy of the site,
including address and date downloaded.
● do not redact, edit, or alter any documents unless such alterations were part of the
original document. The redaction of privileged information may occur later during
Solicitor review of the administrative record.
● ensure that documents are complete, clean, and legible. If an excerpt of a lengthy
document is included in the record, make sure that the source of the excerpt is identified.
● prepare an index to the administrative record that provides a brief description of each
document, including the date and source. A separate index is normally prepared for any
privileged documents after the entire record is compiled and numbered.
[1]

See Guidance to Federal Agencies on Compiling the Administrative Record, Department of Justice, January 1999
and the Standardized Guidance on Compiling a Decision File and an Administrative Record, DOI, June 2006 (“DOI
June 2006 Guidance”) (see the HCP Handbook Toolbox). Note that the DOI 2006 guidance distinguishes between a
decision file, which contemporaneously documents the decision, and the administrative record, which is compiled to
submit to the court after litigation begins. The term “administrative record” is used for purposes of these guidelines

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with an understanding that compilation of administrative record documents during project development facilitates
the compilation, indexing, and certification of the formal administrative record if there is litigation.

4.7.2

Documents that Should Be Included in the Administrative Record

All primary documents, which are documents that explain the agency action that may be
challenged, should be in the administrative record. Examples of primary documents include
EISs, Records of Decision (ROD), and biological opinions.
All relevant, supporting documents that were considered, followed, or relied on by the people
involved in the decision-making process should also be in the administrative record. These
documents may relate to either the substance or procedure of making the decision, or both.
Examples of supporting documents include:
●

●
●
●
●

●

●
●
●

●
●
●

●

documentation of all public involvement and information activities, including published
notices, scoping meetings, open houses, fact sheets, press releases, and project
newsletters.
comments and other communications and information received from the public and other
agencies, and any responses to those comments and communications.
documentation provided by the applicant in response to agency requests for information
relevant to the NEPA and HCP processes.
technical information, monitoring data, sampling results, survey information, engineering
reports or studies, and other factual information or data.
if a report or study is based on predictive computer modeling, sufficient information must
be included in the report or the backup file in the administrative record (including
electronic files as necessary) to allow a third-party reviewer to understand and replicate
the model run(s) that was ultimately relied on for the analysis.
if a report or memorandum is based on collected data, the data should normally be
included as an appendix to the report or memorandum or, if the data are voluminous, in
the administrative record as an electronic backup file for the report or memorandum with
a cover memorandum explaining in general the data content and method of collection.
documents cited as a reference in a primary document, such as the bibliography to the
EIS or HCP.
reports and other information compiled by consultants or contractors.
meeting minutes, transcripts of meetings, and other formal recordings of meetings and
telephone conversations during which project status, substantive issues, or other
important decision points were discussed, memorialized, and circulated to the project
team.
status reports prepared by contractors for the Services.
departmental, office, and bureau policies, guidelines, directives, and manuals that were
relied on during the decision-making process.
documents that have been released to the public through Freedom of Information Act
(FOIA) requests, or are available to the public, including those made available on the
internet.
articles, books, and other publications relied on during the decision-making process (but
be sensitive to copyright laws).

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the NEPA contractor’s certification that it does not have a conflict of interest regarding
the project consistent with the NEPA regulations.
● all documents and materials that were available to those involved in the decision at the
time the decision was made, regardless of whether they support or are contrary to the
final decision. Include documents that were available to the agency at the time of the
decision, even if they were not specifically considered by the final decision maker.
● documents that fall under the categories above that may end up later being redacted or
removed from the record on the basis of privilege.
●

4.7.3 Other Documents that May Be Included in the Administrative Record
You may need to include electronic or other internal communications, such as emails and their
attachments, if they contain factual information, substantive analysis, or discussion, or if they
document the decision making process (such as substantive supervisory instructions to staff
relating to the decision making process). You only need to include it in the administrative record
if it is not already included in the decision documents (i.e., ROD, biological opinion, or EIS) or
otherwise reflected in the administrative record.
Preliminary and administrative drafts of the HCP, EIS and ROD are not normally included in the
administrative record unless they are necessary to substantiate and evidence the decision-making
process. Only include this type of documentation if it’s not otherwise reflected in the
administrative record under a ROD or similar document.[2]
4.7.4 Documents that Generally Should Not Be Included in the Administrative Record
You typically do not include the following documents in the administrative record:
● documents that are not relevant to the decision-making process.
● documents associated with, but not part of, the decision-making process, such as fax
cover sheets. NEPA contractor-generated emails that were not received or considered
directly or indirectly by the Services, phone memoranda, and other routine
communications among a report’s authors and contributors during report development.
● documents and communications that are related to logistics of the NEPA contractor’s
work on the EIS, including travel arrangements, coordination among study participants,
meeting room arrangements, and other similar activities.
● preliminary and draft iterations of technical reports, studies, and analyses that are
reflected in final versions of reports.
● raw field notes where the finalized data and analyses are reflected in final versions of
reports.
● documents that were not in the agency’s possession at the time the decision was made.
● documents that post-date the agency decision.
● informal notes about routine meetings, conference calls, or telephone calls among the
NEPA contractor staff, between the NEPA contractor staff and its subcontractors, or
between the NEPA contractor staff and the Services.
● documents that pertain to the administration of the NEPA contractor, such as documents
detailing the scope, phasing, modification, and payment for work under the EISpreparation contract, as well as technical progress and financial status reports.
4-19

● personal notes, journals, “to do” lists, or appointment calendars maintained by an
individual solely for personal use and not circulated to colleagues or added to the agency
file.
● news stories and other media reports on the project.
[2] Consult your Solicitor or NOAA General Counsel on whether such documentation should be included as part of
your Administrative Record. Whether deliberative material is part of the Administrative Record or not may depend
on the Circuit the HCP is challenged.

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PHASE 2: Developing the HCP and Environmental Compliance Documents
Chapter 5: Covered Activities and Alternatives to the Taking
5.1

Activities Covered by the Incidental Take Permit and HCP
5.1.1 Covered Activity Eligibility
5.1.2 HCP Measures that Result in Take
5.1.3 Including Effects from Covered Activities
5.2
Types of Land and Water Use Activities Covered in HCPs
5.3
Analyzing the Components of Land and Water Use Activities
5.4
Excluding Certain Activities
5.5
Describing Covered Activities in the HCP
5.6
Alternative Actions to the Taking in the HCP
5.7
NEPA Alternatives
_____________________________________________________________________________
5.1 Activities Covered by the Incidental Take Permit and the Habitat Conservation Plan
(HCP)
An incidental take permit under section 10 of the Endangered Species Act (ESA) (see HCP
Handbook Toolbox) authorizes take that is incidental to otherwise lawful activities that are
covered in the HCP. The HCP describes how the activities would be implemented and how
they would impact the species. Hence, the HCP “covers” the activities. The permit authorizes
the resulting take, not the activities, per se. Hence, the permit “covers” the take.
5.1.1 Covered Activity Eligibility
To be eligible for incidental take authorization, covered activities must be: (1) otherwise lawful,
(2) non-Federal, and (3) under the direct control of the permittee. As we explain in more detail in
Chapter 3.5.1, otherwise lawful activities are activities that may legally be carried out provided
the applicant is in compliance with other local, State, and Federal laws. The applicant is
responsible for complying with other applicable local, State and Federal laws. Non-Federal
activities are those that are not funded, authorized, or carried out by a Federal agency. Activities
under the direct control of the permittee are those that the entity controls through jurisdictional
authority, employment, contracts, leases, or land ownership.
5.1.2 HCP Measures that Result in Take
The permit also authorizes any take that may result from the HCP’s required conservation and
monitoring measures (e.g., capture or harassment of individuals to avoid death or injury;
accidentally crushing individuals while restoring its habitat; or capturing and marking
individuals to track responses to conservation measures).
Consultants and researchers often already hold ESA section 10(a)(1)(A) enhancement of survival
permits authorizing take associated with monitoring, research, and conservation purposes. They
may be contracted to conduct these types of activities if required in an HCP. If the applicant
elects to hire someone holding an enhancement of survival permit, and such activities fall under
5-1

the scope of that permit, the associated take does not need to be included on the incidental take
permit. However, the HCP should explain such an arrangement.
On the other hand, if the applicant prefers to use their own staff or contractor without an
enhancement of survival permit, the incidental take permit can authorize take associated with
monitoring, research, and conservation purposes for the HCP. The Services should advise the
applicant to weigh the efficiencies of contracting individuals already holding enhancement of
survival permits against using their own staff or contractors. If the applicant intends to use their
own staff or contractors to conduct management and monitoring under the incidental take permit,
such personnel must meet the same qualifications and demonstrate the same expertise as required
for an enhancement of survival permit.
Helpful Hint: Enhancement of survival permits cannot be used to authorize moving individuals out of
harm’s way of proposed project activities to side step applying for an incidental take permit and
preparing the required HCP. They also cannot be used to authorize take incidental to non-Federal
activities that are not for research purposes or to enhance the propagation or survival of the species.

5.1.3 Including All Effects from Covered Activities
The HCP must also describe activities that may result in all effects to covered species or their
habitats, including any effects that do not rise to the level of take. The HCP needs to describe the
effects and how they may or may not impact the covered species, because the Services must
consider this information when analyzing effects in their section 7 biological opinions, National
Environmental Policy Act (NEPA), and findings documents (see HCP Handbook Toolbox)
documents.
5.2 Types of Land and Water Use Activities Covered in HCPs
The Services’ section 10 regulations do not limit the type and extent of activities that an HCP
can cover, as long as the activities meet all the eligibility criteria and the HCP meets the permit
issuance criteria. HCPs can cover a variety of residential, commercial, agricultural, and industrial
development and any associated activities that may result in incidental take. They can also cover
resource extraction (e.g., oil and gas, mining), sustainable use (e.g., timber harvest, wind energy
production, fisheries harvest), recurring activities (e.g., irrigation ditch clearing, water
diversions, hydroelectric power, seawall maintenance, recreation), or ongoing operations and
maintenance of existing or new projects.
Many activities that HCPs cover are permanent projects on the landscape with permanent effects,
such as loss of habitat from a development of a residential sub-division. HCPs also can cover
short-term activities that result in temporary effects, such as one-time take of a specific number
of individuals from a bridge replacement. Some longer term activities may result in temporary
rather than permanent effects, such as rotational timber harvest.
Covered activities can be of any scale, from building a single-family residence to constructing a
multi-State gas pipeline. Local governments can choose to cover their own infrastructure projects
(e.g., buildings, roads, bridges, etc.), building permits for developers, or a combination of these
in the HCP. A single party can cover a single project, such as an individual wind energy facility,
5-2

or a consortium of wind energy companies can collaborate on an HCP to cover several facilities
across a defined area. You should work with applicants to weigh the benefits and challenges of
covering multiple activities in an HCP. Benefits include:
● developing a comprehensive conservation strategy that addresses impacts from several
activities, rather than attempting to piece together separate mitigation strategies from
individual HCPs as they are developed over time;
● efficiencies that result by covering take for a range of activities under a single permit; and
● reducing overall workload impact by investing time and resources up-front in a single
comprehensive HCP, rather than reviewing and processing multiple HCPs.
On the other hand, some challenges to consider are:
● increased complexities with understanding multiple activities and all the various resulting
impacts, developing a variety of activity-specific minimization measures, and
coordinating with multiple parties involved with different activities;
● the demand on time and resources due to these complexities at the time of the up-front
investment;
● developing more complex monitoring and adaptive management programs necessary for
the suite of covered activities; and
● difficulties in understanding proposed activities when multiple competing commercial
entities under a single HCP must protect proprietary business information.
5.3 Analyzing the Components of Land and Water Use Activities
Most activities (e.g., a wind energy project) that an HCP covers have multiple components that
can result in different types of take and impacts. Ask applicants to provide information on how
every aspect of the covered action would be implemented. Take the time to meet with project
proponents specifically to exchange information based on your respective technical expertise,
theirs on the action and yours on the covered species.
Helpful Hint: Visiting similar projects already on the ground or in progress can be particularly helpful
in identifying the variety of components of an action and understanding potential impacts.

Breaking down an overall action into sub-activities is key to understanding which ones may
result in take, which may result in other impacts, and which may not affect the covered species at
all. Analyzing the action in this manner also helps us understand the geospatial and temporal
relationship of all the sub-activities of the proposed action, which are key in identifying the
permit area, determining the permit duration, and developing appropriate avoidance and
minimization measures specific to the sources of take. Collaborating to analyze the components
of the action will likely lead to a better understanding by all parties on the rationale behind the
identification of the appropriate covered activities and the conservation measures, which in turn
should reduce or eliminate prolonged debate during HCP development.
The FWS developed a process, called the Effects Pathway Model (EPM) (see HCP Handbook
Toolbox) to help identify the connections between project activities and species effects and to
ultimately develop corresponding conservation measures.
5-3

Helpful Hint: EPM also contains detailed breakdowns of many types of actions that can help you
consider the effects of actions on species and their habitats. Using one of these completed
breakdowns, if applicable to your HCP, can save you and the applicant time.

Using a diagram or table helps visualize and track the relationship between the components of an
action and effects to the species (see Figure 5.3a). Use this process for each covered species or
guild of species if effects would be the same.
Figure 5.3a: Visualizing How to Break Down Components of an Action to Identify Species
Responses.

This graphic focuses on breaking down activities associated with a proposed wind energy facility affecting the lesser prairie
chicken, using a couple of examples from just one phase of the action. The process should continue by adding more steps to
connect effects on the individual and demographic levels and appropriate conservation measures.

Typically, development actions can first be broken into broad phases, such as construction,
operations, and maintenance, while others may have additional phases. For example, the phases
for wind energy development are:
1.
2.
3.
4.
5.

prospecting,
siting and development,
construction and commissioning,
operations and maintenance, and
repowering or decommissioning.

5-4

Identify the activities associated with each phase. For example, a few of the components of the
prospecting phase for a wind energy facility include access roads and construction and operation
of meteorological towers (see Figure 5.3a).
Next, break down each activity into sub-activities that may affect the covered species. Then
identify the type of response the sub-activity may elicit in the covered species. The example in
Figure 5.3a shows that activities associated with construction of access roads could cause
repeated flushing of lesser prairie chickens, vehicles traveling access roads could strike lesser
prairie chicken individuals, while the presence of a meteorological tower may cause lesser prairie
chickens to abandon nearby habitat. Include only those components that likely impact the
covered species. See Chapters 8.2 and 9.3 for subsequent steps to identify how these responses
would ecologically and demographically affect the species and determine appropriate avoidance,
minimization, and mitigation measures.
5.4 Excluding Certain Activities
In some cases, you may find there are reasonable measures that could eliminate the likelihood of
take from certain activities, such as modifying beach lighting to avoid impacts to sea turtles. You
should advise the applicant that committing to such measures not only would be good for the
species, but also would remove the need for the applicant to mitigate for the impacts of such
take. Ultimately, the applicant chooses whether to design their project to avoid take or to include
certain activities for take coverage. However, if take from such activities is likely to jeopardize
the species or destroy or adversely modify its critical habitat, they cannot be covered in the
permit. In this case, you will need to work with the applicant to modify the activity and
incorporate conservation measures to eliminate the risk of jeopardy or critical habitat destruction
or adverse modification.
Helpful Hint: Due to ongoing section 7 consultations with the Environmental Protection Agency on
registering and labeling pesticides, we provide guidance in Appendix B on when pesticide use can be
included in HCPs and how to address them.

5.5 Describing Covered Activities in the HCP
Because the HCP is the applicant’s document, the applicant ultimately decides how to write it.
However, you should provide guidance on what they should include as covered activities so that
we can adequately review the document and the public can understand and comment on what is
proposed. A detailed description of the covered activities in the HCP is also key for future
permittees and Service staff to understand how the covered activities will be implemented over
the duration of a permit.
The process of breaking down the action into components is particularly helpful in establishing
what the HCP should describe and in what detail.
● An HCP should thoroughly describe activities and associated components that are likely
to have impacts, but should not include overly detailed information about sub-activities
that do not affect covered species.
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● Brief descriptions of such sub-activities and citations to support why they do not impact
species is sufficient.
● Describing all the ways a particular activity could be conducted may not be necessary if
the anticipated impacts would be the same. For instance, if the impacts of a proposed
development are solely the permanent loss of a specified amount of currently unoccupied
habitat that is projected to remain unoccupied in the future, whether the structures are
residential or commercial may not be important. In this case, broadly describing the
activity as development gives the applicant flexibility without affecting the outcome of
analyses of impacts.
Flexibility in how multiple activities for large-scale HCPs are described can be helpful. In some
cases, a local agency’s planning documents fully describes the activities to be covered by the
HCP and can be incorporated by reference. Regardless, the HCP must provide enough
information about the activities to enable an adequate analysis of anticipated take.
5.6 Alternative Actions to the Taking in the HCP
Section 10 of the ESA and its regulations require that an HCP describes actions the applicant
considered as alternatives to the take that would result from the proposed action and the reasons
why they are not using those alternatives. When describing alternative actions in the HCP, the
applicant should focus on significant differences in project design that would avoid or reduce the
take. These alternatives should be meaningful and not merely involve small changes in project
implementation or minimization and mitigation measures that do not avoid or reduce take.
The regulations do not require that the HCP include a specific number of alternatives to the
taking. Besides the proposed alternative, HCPs typically include a no-action alternative, in which
the applicant would not proceed with their proposed project or modify it to avoid take altogether.
Other types of alternatives will depend on the situation, but can include implementing the project
in a different location or changing the project or land use in a way that would eliminate or reduce
the take in a meaningful way (e.g., restricting the timing of certain timber harvest activities to
when grizzly bears are denning).
The HCP must demonstrate that the applicant reasonably considered the alternatives to the
proposed action and explain why the applicant did not select each alternative. These explanations
do not have to justify impracticability of any alternative. The Services need to only to evaluate
whether the applicant’s explanations appear to be credible and reasonable; therefore, we do not
have to analyze the feasibility of the alternatives.
5.7 NEPA Alternatives
NEPA alternatives differ from HCP alternatives, and the distinctions are subtle and often
confused. See Chapter 13.3 for a detailed discussion of NEPA alternatives. Figure 5.7a compares
the differences between the alternatives in the two contexts. The NEPA alternatives that the
Services must analyze in the Environmental Assessment (EA) or Environmental Impact
Statement (EIS) are alternatives to the Federal action of issuing the incidental take permit based
on the HCP proposed by the applicant and including terms and conditions to comply with the
HCP. These alternatives are not necessarily the same as the HCP’s alternatives to the taking (see
5-6

Figure 5.7a). The NEPA alternatives should meet the purpose and need of the action, which
essentially is to fulfill our conservation obligations under section 10 of the ESA while
responding to the applicant’s request for authorization of take incidental to the covered activities
(see Chapter 13.1 for a fuller explanation of our purpose and need). The range of alternatives
typically includes:
1. the proposed action,
2. no action, and
3. one or more variations of the proposed action (usually with more or less take).
For an EA level review, two to three alternatives are usually sufficient. For an EIS level review,
three or more alternatives are generally needed.
While the applicant develops the alternatives to the taking in the HCP, the Services are
responsible for developing NEPA alternatives. The Services may confer with the applicant to
ensure that the NEPA alternatives are reasonable, but determining which alternatives to analyze
in the NEPA document is ultimately up to the Services. The alternatives the Services select to
analyze are not required to be reasonable to the applicant (CEQ 40 FAQs and Answers)
(see HCP Handbook Toolbox).
Besides the proposed action, we must analyze a no-action alternative. We should also consider a
range of alternatives that include reasonable ways for an HCP to meet the permit issuance
criteria, particularly related to measures to minimize and mitigate the impacts of the take to the
maximum extent practicable.
● Such alternatives can entail measures different from those in the proposed HCP to
minimize impacts from the take. For example, an HCP might propose to translocate
individuals of a covered species out of harm’s way of construction activities, while we
might consider an alternative as starting construction outside of the breeding season.
● Other alternatives might focus on a different conservation strategy for the HCP. An HCP
might propose to restore and enhance habitat to offset impacts of the project, while we
might examine a strategy to focus on perpetual protection of other habitat vulnerable to
development threats.
● Finally, an alternative might include the same conservation strategy as the one proposed
by the applicant, but with a different permit duration.
Theoretically, one could generate an infinite number of alternatives with variations to the
proposed HCP. However, we are required to examine only a range of reasonable alternatives in
depth. Do not feel compelled to invent alternatives just to have them. We also must discuss
alternatives we considered, but rejected, and the reasons why we rejected them. For more
guidance on determining and analyzing NEPA alternatives, see the Council on Environmental
Quality’s (CEQ) 40 Most Asked Questions Concerning CEQ's National Environmental Policy
Act Regulations in the HCP Handbook Toolbox.

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Figure 5.7a: Differences between HCP and NEPA Alternatives

5-8

Chapter 6: Identifying the Plan Area, Permit Area, and Other Areas
Analyzed
6.1

Determining the Plan Area
6.1.1 What is the Plan Area?
6.1.2 Plan Area Size Considerations
6.1.3 Plan Area Units
6.2 Determining the Permit Area
6.3 Areas Analyzed Under Various Legal Authorities
6.3.1 Section 10
6.3.2 Section 7
6.3.3 NEPA
6.3.4 NHPA
6.4
Maps and Data Needs
6.4.1 Maps and Analysis
6.4.2 Metadata and Data Documentation
6.4.3 Data Management and Sharing Plans
___________________________________________________________________________
6.1 Determining the Plan Area
In addition to identifying the covered activities, the applicant must identify the plan area (where
the Habitat Conservation Plan (HCP) applies) and the permit area (where the incidental take
authorization applies).
6.1.1 What is the Plan Area?
The plan area, sometimes referred to as the HCP area, is comprised of all areas that will be used
for any activities described in the HCP, including covered activities and the conservation
program. It includes all lands necessary for the HCP to be fully implemented. The plan area must
at a minimum include the permit area, but it may be larger. The plan area must be clearly
delineated in the HCP with a map and written description. The plan area boundary should be
defined as exactly as possible to avoid uncertainty about where the HCP applies. The visual and
narrative description of the plan area provides everyone with a clear picture of the location of the
HCP.
Depending on the nature the HCP, the plan area could: include all or some of the property of a
single private landowner or multiple landowners; encompass a large area to allow for anticipated
future acquisition or expansion of control by a large company; be a physical boundary, such as a
watershed, or an ecological boundary, such as an ecoregion; be a political boundary area such as
a city, county, or State under a programmatic HCP that would allow enrollment by multiple
landowners over time; or be based on lands under the jurisdiction of a tribe, State agency (e.g.,
State lands commission), or local entity (e.g., watershed district).
The plan area may be contiguous or include separate locations. For example, there may be
separate locations if there is a mitigation or reserve site associated with an HCP that is located
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apart from other HCP activities, or if an applicant has separate properties each with project
activities that will be included under one HCP.
The plan area may include some areas that are not under the direct control of the applicant(s).
This is often the case for landscape-scale HCPs where the plan area is based on a large physical
or ecological boundary. Also, a mitigation site associated with an HCP may be controlled by
someone other than the applicant, such as another landowner. However, applicants must ensure
that they can achieve their responsibilities under an HCP and the associated permit within the
plan area where the conditions or requirements will be in effect. This may mean that they have to
enter into additional agreements, or memorandums of understanding (MOU) (see the HCP
Handbook Toolbox), or use other legal instruments (e.g., contracts) with affected parties.
Determining the exact location of the plan area boundary is often an iterative process that is
intertwined with determining other components of the HCP, including covered species, covered
activities, anticipated impacts, and conservation opportunities.
6.1.2 Plan Area Size Considerations
There are no minimum or maximum plan area size requirements. For small or single landowner
HCPs, the plan area is often some or all of the landowner’s property. HCPs with small plan areas
usually take less time to develop and National Environmental Policy Act (NEPA) compliance is
not usually as complex (e.g., Categorical Exclusion (CatEx) or Environmental Assessment
(EA)). However, HCPs with small plan areas may be less efficient at demonstrating conservation
value and in some cases more costly to develop on a per acre basis.
Except in the case of a general conservation plan, the final size and configuration of an HCP plan
area is up to the applicant(s). To maximize the conservation value of the HCP, the Services often
encourage applicants to consider a landscape-scale or regional plan area if it is feasible and
consistent with the applicant's land or natural resource use authorities. Even small plan area
HCPs can contribute to a landscape-scale strategy. The advantages usually associated with
landscape-scale plans are that they:
● allow for pro-active, long-term development planning to conserve species and their
habitats in balance with important economic needs of applicants;
● can comprehensively provide for the needs of a covered species because they often can
encompass more life history requirements and provide greater conservation opportunities;
● are more efficient to develop and administer on a per acre basis;
● may allow the permittee to address a broader range of activities;
● can avoid the need for many smaller HCPs;
● allow for analysis of a wider range of factors affecting listed species, which maximizes
the flexibility needed to develop innovative mitigation programs, and minimizes the
burden of ESA compliance by replacing individual project review with comprehensive,
area-wide review; and
● minimize the time and workload associated with the Services’ review of many individual
projects by conducting a single comprehensive, area-wide review instead.

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Disadvantages of landscape-scale plan areas are that:
● they may have more covered activities and covered species to address, which increases
the complexity, costs, and time needed to develop them;
● achieving consensus gets more challenging as the number of participants increases;
● biological information such as species occurrence and habitat conditions may be less
available and more difficult to acquire for a large plan area;
● less data availability for large plan areas can lead to greater uncertainties associated with
the impacts of implementing these HCPs;
● more robust monitoring and adaptive management programs are often needed to address
the uncertainties associated with large plan areas; and
● they often take longer to prepare.
6.1.3 Plan Area Units
Landscape-scale HCPs and even some smaller HCPs may be simplified by dividing the plan area
into separate units with different conditions and requirements for each unit. For example, some
units may be identified for development activities and others for conservation purposes. Using
plan area units may also help in segregating a phased or multi-applicant approach to
implementation for large or long-term HCPs. Plan area units may result from severability
considerations as discussed in Chapter 3.4.7.
6.2 Determining the Permit Area
The permit area is the geographic area where the impacts of the activity(ies) occur for which an
incidental take permit coverage is requested (i.e., the covered activities). Although there is not a
minimum permit area size, it must be within the plan area and under the control of the permittee
or holder of a certificate of inclusion. The permit area must be clearly delineated with a map and
written description in the HCP and the permit. The written description may include township,
range, and section information; plat map and parcel numbers; global positioning system (GPS)
coordinates; legal descriptions; or whatever is necessary to ensure that there is no uncertainty as
to where covered activities may occur and take is authorized.
Depending on the HCP and its permit structure, the permit area may be the same as the plan area
or a subset of the plan area. They are often the same when there is a relatively small HCP plan
area with just one landowner. Permit areas are often a subset of a plan area for landscape-scale
HCPs with multiple applicants or when activities likely to result in incidental take occur only in
certain parts of the plan area. Determining the exact location of the permit area is an iterative
process that is intertwined with determining other components of the HCP, such as plan area,
covered activities, anticipated direct and indirect impacts, and mitigation location.
6.3 Areas Analyzed Under Various Legal Authorities
Under our various legal authorities, we are required to analyze the geographic area within which
impacts to a particular resource (e.g., a covered species, soils, water quality, socioeconomics,
cultural resources, historic properties) may occur. The areas we analyze may be different for
each resource because of their location, how they are affected, and what constitutes a
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meaningfully relevant analysis unit for the resource. For example, a far-ranging species would
require us to look outside of the plan area to understand the effects to the population.
6.3.1 Section 10
Under section 10 of the ESA, the HCP must specify the impact of the taking on each covered
species. The impact of the taking must be determined at the rangewide scale to ensure that the
taking does not appreciably reduce the likelihood of survival and recovery of the species.
Therefore, the area analyzed to determine the impact of the taking on a covered species is the
entire range of that species. However, this analysis is often conducted using a stepwise approach
with local and intermediate areas analyzed such as the area occupied by a local population and a
recovery unit. Effects associated with these local and intermediate areas analyzed are then used
to predict effects associated with the entire range of the species.
6.3.2 Section 7
Under section 7 of the ESA, we are responsible for analyzing impacts to all listed, proposed, and
candidate species affected by the proposed Federal action of issuing an incidental take permit,
whether the applicant proposed coverage of those species, or not. We conduct this through intraService section 7 consultation (see the HCP Handbook Toolbox). There must be a defined action
area for us to do this analysis. Section 7 regulations define the “action area” as all areas that will
be affected directly or indirectly by the Federal action, and not merely the immediate area
involved in the action (50 CFR 402.02). For example, if a proposed project is noisy then the
action area would extend out at least as far as where the project’s noise levels are above ambient
noise levels. Similarly, the action area would extend out as far as necessary to encompass other
project effects such as vegetation, sediment, or light impacts. Ultimately, the action area can be
represented by a polygon that is the farthest extent of all areas likely to be affected directly or
indirectly by the covered activities. Based on the action area, we determine which species and
critical habitat are present and provide this information to the applicant to consider as covered
species in the HCP. If take is reasonably certain to occur of ESA-listed wildlife species resulting
from the covered activities, those species must be included in the HCP. If take can be avoided,
the applicant should provide species take avoidance measures to the Services for review and
approval and agreed-upon species take avoidance measures should be included in the HCP. The
intra-Service consultation will analyze the proposed species take avoidance measures.
The analysis under ESA section 7 may also need to consider the range-wide scale, because under
section 7 we analyze effects to each listed species and designated critical habitat, in order to
ensure that the action is not likely to jeopardize the species’ continued existence or destroy or
adversely modify critical habitat. In some instances, a “distinct population segment” has been
listed as a threatened or endangered species, and such designations may also affect the scale of
analysis. Furthermore, the scale of the section 7 analysis may be influenced by the recovery units
established in a final ESA Section 4 recovery plan. Also as with section 10 analyses, we may use
a stepwise approach to conduct the section 7 effects analysis with local and intermediate areas
identified. For example, we may identify anticipated effects to a local population or a recovery
unit first to help predict effects at the range-wide scale. Also, we will need to consider climate
change effects relevant over the HCP timeframe (e.g., an HCP that involves some type of

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ongoing activity may have different effects over time as listed species distribution or abundance
is projected to change).
Under section 7, we are also responsible for determining if the Federal action is likely to destroy
or adversely modify designated critical habitat. We determine this based on the effect of the
action on the critical habitat as designated in a final rulemaking. When multiple units of critical
habitat are designated, we may use a stepwise approach in analyzing impacts to critical habitat.
For example, if the action area only includes one unit of critical habitat, we will analyze effects
to that unit first to help predict effects to the conservation value and function of critical habitat as
a whole.
6.3.3 National Environmental Policy Act
For each alternative in the National Environmental Policy Act (NEPA) analysis, we should
analyze impacts to each resource (e.g., soils, water, vegetation, wildlife) (see Chapter 13 and the
HCP Handbook Toolbox). For instance, the impact to soils or vegetation from grading a site for a
sewage treatment plant may be confined to the building footprint. The impact to water quality
may be the entire length of the river where treated wastewater is discharged. For socioeconomic
impacts, a city or county boundary may be the logical area to analyze.
Sometimes the area we analyze for a particular resource changes with different alternatives. For
example, analyzing three or four different locations for a sewage treatment plant means
analyzing impacts to vegetation and species in each of those different locations. If the Services
agree with the areas established for the covered species and covered activities in the HCP, then it
would be appropriate to analyze these same areas for the proposed action alternative and possibly
other alternatives in the NEPA analysis.
It is not necessary to draw boundaries or collect data to describe resources that are not likely to
be affected by the NEPA alternatives. If the resources don’t need to be described, the
descriptions in the affected environment section of the document should be no longer than is
necessary to understand the effects of the alternatives that are described in the environmental
consequences section of the NEPA analysis.
In cases when we cooperate with another Federal agency in our NEPA review, the plan area map
for the HCP should include areas of concern specific to the cooperating agency’s authority.
6.3.4 National Historic Preservation Act
To determine the Area of Potential Effect (APE), under the National Historic Preservation Act
(NHPA) (see the HCP Handbook Toolbox), we must first understand the extent of the Federal
undertaking. We define the Federal undertaking as the issuance of the permit and the associated
conservation measures in the HCP, specifically the minimization and mitigation measures. The
APE includes the areas where the FWS proposes to authorize take through an incidental take
permit and where the permit conditions for the avoidance, minimization, and mitigation
measures would be implemented and is typically located within the plan area. It may include
reasonably foreseeable impacts outside areas associated with conservation measures if the permit
causes such impact, but be sure that such impacts would not already occur without the permit.
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FWS staff should coordinate closely with their Regional Historic Preservation Officers (RHPO)
early in the HCP development process to help determine the APE and to consult with the State
Historic Preservation Officers. See Appendix A for additional information regarding NHPA
compliance.
6.4 Maps and Data Needs
For those resources that will sustain impacts, collecting accurate and adequate data on their
present status (location, nature, condition, scope, size, etc.) is critical in determining impacts, and
must be available in time for baseline analyses. A geographic information system (GIS) or other
mapping system can be the basis of these analyses, and we can use these data to decide how best
to develop or manage resources. Quality data will help in making quality decisions. This applies
to all phases of HCP development, including implementation of the HCP. For more information
about data requirements see Chapter 10.4. However, some data and geographic locations,
particularly in the case of an HCP developed by an energy industry provider (e.g., oil, natural
gas, wind, solar, geothermal, hydropower, etc.), may be proprietary or need to be protected for
national security purposes (see also Chapter 7.8.1).
6.4.1 Maps and Analyses
GIS is an important tool for creating maps and for conducting multiple analyses. Applicants and
the Services should carefully consider what mapping and analytical needs there are, who will
develop them, where the data will be housed, and how the data will be shared. The following are
the GIS analyses to routinely consider for HCPs:
●
●
●
●
●
●
●

general map making;
land ownership, management and patterns;
species occurrence, richness, abundance, and range distribution;
species-habitat suitability and characterization;
direct and indirect estimated impacts to covered species’ habitat;
estimated availability of covered species’ habitats/vegetation; and
connection corridors for covered species.
6.4.2 Metadata and Data Documentation

What is metadata?
In its simplest form, metadata is basic information, that accompanies other data to describe what
it is and make it easier for others to find it, understand it, and use it. As data are used and
modified, users must update the documentation to reflect changes.
Why is metadata important?
Updated and complete metadata are critical to maintaining data quality and make it possible for
others to understand and use the data. Data without accompanying metadata are hard to trust and
understand, so it is difficult to use them with any degree of confidence.
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Basic metadata that must be captured include:
●
●
●
●
●
●
●

description of how the data were created,
purpose of the data,
time and date of creation,
updated time and date stamps,
data author,
location on a computer network where the data were created, and
data standards used.

Metadata should be prepared for all data that are collected or developed for the HCP (Federal
Geographic Data Committee (FGDC) or ISO 19115 metadata standards, see the HCP Handbook
Toolbox).
6.4.3 Data Management Plans
There should be a data management and sharing plan for any HCP where the Services and the
applicant develop maps, conduct analyses, or collect data (Data Management Plan information,
see the HCP Handbook Toolbox). It should be described in full as part of the HCP. This includes
during development, implementation, and monitoring of the HCP. A data management plan
describes the data that will be developed and by whom, what will be shared, how it will be
shared, and how it will be managed throughout its lifetime. For small plans where very little or
no mapping is done, or where the Services prepare the maps and analyses, a data management
plan may not be required.
The data management plan should include:
●
●
●
●
●
●
●

the types of data that will be created,
the data standards that will be used,
how the data will be stored,
who will have access to the data,
plans for eventual transition or termination of the data collection in the long-term,
how and what data will be shared between the permittee and the Services, and
schedule for sharing data.

More information about data management plans can be found in Chapter 10.4.

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Chapter 7: Identifying HCP Species and Information Needs
7.0
7.1
7.2
7.3
7.4

Introduction
Requirements and Information Needs and Standards for “Covered” Species
Selecting Covered Species
Addressing Non-Listed Species in the HCP
Special Considerations for Some Species Groups
7.4.1 Migratory Birds
7.4.2 Bald and Golden Eagles
7.4.3 Anadromous Fish
7.4.4 Sea Turtles
7.4.5 Marine Mammals
7.4.5.1 Marine Mammal Protection Act: Incidental Harassment Authorization
7.4.5.2 Letters of Authorization
7.4.6 Plants
7.4.7 State Protected Species
7.4.8 HCPs and Enhancement of Survival Permits
7.5
Addressing Critical Habitat
7.5.1 Effect of Critical Habitat on HCPs
7.5.2 Critical Habitat Exclusions
7.6
Identifying the Role of the Plan Area in the Conservation of each Covered
Species
7.7
Tools
7.7.1 Climate Change Effects Analysis
7.7.2 Conceptual Models
7.7.3 Decision Support Models
7.7.4 Effects Pathway Model
7.7.5 Geographic Information System
7.7.6 Habitat Equivalency Analysis
7.7.7 Population Viability Analysis
7.7.8 Reserve Design Optimization Models
7.7.9 Resource Equivalency Analysis
7.7.10 Species Distribution Models
7.7.11 Species Status Assessments
7.7.12 Spreadsheet Population Models
7.8
Data Sharing
7.8.1 FOIA and Proprietary Information
______________________________________________________________________________
7.0 Introduction
Preparing an acceptable HCP requires thorough, up-to-date biological information on the project
area, covered lands, and species. First, we should advise the applicant to collate and review
existing information about species distribution, occurrence, and ecology (e.g., feeding, breeding,
sheltering), including potential effects of climate change that could compromise the success of
the HCP’s conservation strategy. We can assist in this process by providing or directing the
applicant to available information, and species or other subject-matter experts. Second, the
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applicant, in coordination with the Services, should determine if the available information is
adequate to proceed with the HCP planning process. If further information is needed to develop
the HCP, the Services should work with the applicant to determine the type, scope, and design of
biological studies that can reasonably be developed to support the HCP. Appropriate data
gathering efforts for an HCP could include species population surveys, species distribution
information, and/or habitat modeling and distribution. Surveys can occur before the permit is
issued (with the appropriate permits, while the HCP is in development) and after the permit is
issued (during implementation of the HCP).
Deciding which species to cover in an HCP involves the consideration of many factors. The
Services and the applicant must work together to identify the list of covered species. The
applicant must include ESA-listed animal species that are expected to be taken by proposed
covered activities as covered species in the HCP. Species that may be ESA-listed during the
permit term, and are expected to be taken from proposed activities should be considered for
inclusion as a covered species. Common species, or species that have very low likelihood of
becoming ESA-listed, should not be covered by the HCP because every species included
involves commitments of time and money by both the applicant and the Services. Every species
covered in the HCP must be treated as though it were already ESA-listed.
The Services require applicants to include as HCP covered species all ESA-listed wildlife
species for which incidental take is reasonably certain to occur, unless take is addressed through
a separate ESA mechanism (e.g., section 7 consultation with another Federal agency, separate
incidental take permit, etc.), or to explain or demonstrate in the HCP why take is not anticipated
or will be avoided during implementation of covered activities (e.g., inclusion of measures that
will avoid potential for take). Note that the Services’ intra-Service section 7 consultation
prepared in conjunction with incidental take permit issuance will not include an incidental take
exemption for non-HCP covered species. In addition, while a separate ESA mechanism (e.g.,
section 7 consultation with another Federal agency) is a possible path forward for addressing
take of non-covered HCP species, the pluses and minuses should be carefully weighed. For
instance, No Surprises assurances would be precluded for those species not covered in the HCP
and it may undermine the opportunity for project streamlining afforded through the HCP process.
Impacts to plants do not fall under the definition of “take,” therefore, we cannot authorize
incidental take of plants. However, the Services cannot issue a permit that would jeopardize the
continued existence or adversely modify the designated critical habitat of any listed species,
including plants, so addressing listed plants in the HCP may be prudent. Table 7.0a shows when
to cover species in an HCP or not. For this discussion, covered species are those that are included
in the HCP with conservation measures to offset the impacts of the taking and are included on
the incidental take permit. Plants adequately covered by the plan may be included on the permit
for the purpose of providing No Surprises assurances. Species included in the plan that are not
included in the permit are not considered covered species.

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Table 7.0a: Species Coverage in HCPs
Occurs in the plan
area or likely to
occur

Take expected from
covered activities

Cover in HCP?

ESA- listed species

yes

yes

yes

ESA- listed species

yes

no

consider for coverage; the
HCP should explain or
demonstrate why take is
not anticipated or will be
avoided during
implementation of
covered activities

ESA-listed plant

yes

yes

recommended, to avoid
potential jeopardy/
adverse mod to critical
habitat problems later

Proposed or
candidate species

yes

yes

consider for coverage

State listed

yes

yes

consider for coverage

Common species

yes

yes

no

A key factor in determining whether to cover a species is how much is known about the species.
If there is not enough information available (see section 7.1 for more information) to develop a
conservation strategy for a particular species, choosing not to cover the species may be best. In
this case, take of an ESA-listed species must be avoided or the permit cannot be issued as it will
be difficult to understand the impacts of the taking, and it will be difficult to develop a
conservation strategy that will mitigate those impacts. Another key factor is whether the species
occurs in the permit area. If there is not enough information available to determine if one of the
covered species occurs within the plan area or not, there is unlikely to be sufficient information
for an adequate effects analysis, which are required contents of an HCP, National Environmental
Policy Act (NEPA) document (see HCP Handbook Toolbox), and Section 7 analysis. An
additional consideration is the option of including species that do not currently occur in the plan
area, but are reasonably likely to move into and occur in the area during the life of the plan, e.g.,
due to a range shift related to climate change effects or for other reasons.
Helpful Hint: All ESA-listed species that will be taken through implementation of covered
activities must be included as covered species, or we cannot issue the incidental take permit
(unless covered by another ESA mechanism). The applicant must adjust covered activities to
avoid take of ESA-listed species that are not covered by the HCP.

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A covered species in an HCP is one for which an applicant is requesting authorization for
incidental take and is developing a conservation strategy with avoidance, minimization, and
mitigation measures. There are HCPs that include non-ESA-listed species in the plan without
take coverage in addition to the ESA-listed species with take coverage. This is typically the case
where State or local laws require certain minimization or mitigation requirements for those
species, and the applicant uses the HCP to help meet both sets of requirements (e.g., establishing
and maintaining a 5,000 acre grassland preserve for the covered species would also benefit some
non-covered species). By including them as species of local concern the applicants are not
required to meet issuance criteria for them or have individual goals and objectives, or monitoring
requirements, but may be able to meet the requirements of State or local laws. These species of
local concern would not receive assurances as covered species do. The HCP must make it clear
for which species the applicant is seeking incidental take permit coverage.
7.1 Requirements and Information Needs and Standards for Covered Species
An applicant needs sufficient species information to meet required permitting elements. FWS
permit regulations (50 CFR 17.22(b)(1) and 17.32(b)(1)) require the permit application to
include the “number, age, and sex of such species, if known.” National Marine Fisheries Service
(NMFS) permit regulation 50 CFR 222.307(b)(3) requires that applications include the species or
stocks, by common and scientific name, and a description of the status, distribution, seasonal
distribution, habitat needs, feeding habits, and other biological requirements of the affected
species or stocks. See these regulations in the HCP Handbook Toolbox. The HCP must describe:
1. the impact that will likely result from incidental taking; and
2. what steps the applicant will take to monitor, minimize, and mitigate such impacts.
The permit issuance criteria require the Services to determine if the measures in the HCP will
minimize and mitigate the impact of the taking to the maximum extent practicable. The impact of
the taking cannot be clearly articulated without some baseline information about the presence
and status of the species in the covered area, or a logical explanation of potential impacts based
on habitat characteristics, carrying capacities, etc. and by taking into consideration likely future
changes due to climate change effects or other causes. If such information is not available for the
plan area, there are a few options to understand current occurrence status:
●
●
●
●

conduct new surveys
develop or make use of existing species distribution models
use habitat to estimate species occurrence in the plan area
or highlight important habitat within the plan area

The development of species distribution models can be useful for filling information gaps about
species occurrence in the plan area, where sufficient information is available to develop such a
model. For species that have a close tie to a certain habitat, and are known to be present nearby,
habitat may be a useful indicator of current occupancy in the plan area. The HCP must include an
assessment of current and likely future habitat availability, and how that may change as a result
of the proposed activities, including the mitigation measures.

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We must also be able to describe and analyze the effects of the proposed covered activities on
the covered species to issue incidental take coverage for each species. If there’s not enough
information about a species’ habitat requirements, its potential reaction to changes in habitat
resulting from the proposed activities, or the effects associated with some form of disturbance
(e.g., noise, artificial light, airplane/helicopter flyovers, human presence, pets, etc.), then we
should work with the applicant to carefully consider whether to cover the species and if special
considerations are needed for those species. Some form of conditional coverage, extra
monitoring, or an increased focus on adaptive management may be prudent for species where
important information is lacking. For an ESA-listed species that won’t be covered in the plan, the
applicant must modify development activities to avoid taking the species. In complex HCPs
covering many activities, it may be necessary to exclude coverage of certain activities if the
effects of the take cannot be well quantified. In this case: take must be avoided.
The HCP should acknowledge information gaps, and uncertainty in species’ needs and impacts
to species so uncertainties that cannot be resolved during the HCP development phase can be
addressed through monitoring and adaptive management (see Chapter 10 for more information
about Monitoring and Adaptive Management).
Helpful Hint: Consider not covering a species if there isn’t information available and cannot be
collected for the following:
1. The likelihood of species occurring in the plan area is low.
2. We do not know enough about the species to be able to assess the impacts of the taking from
the covered activities.
3. We do not know enough about the species to develop a conservation strategy for the species
that offsets the impacts of the taking.

If the Services and applicant agree to drop coverage of a species part way through development
of the HCP, the Services must determine the effects of dropping that species in relation to other
covered species. What conservation is being lost from dropping the species? How much did
other species conservation strategies depend on the conservation from the species that was
dropped?
Detailed species and habitat information are also needed for the intra-Service section 7
consultation. All covered species, listed or not, will be assessed under section 7 for direct,
indirect, and cumulative effects and the likelihood of jeopardy, and for listed covered species, the
destruction or adverse modification of critical habitat (if any is designated in the plan area). The
section 7 consultation must also analyze whether any non-covered, listed species in the action
area may be affected by covered activities. The HCP essentially serves as a biological evaluation
and can greatly simplify the writing of the biological opinion (BO) by referencing the
information from the HCP in the BO. This is especially important when non-listed species are
involved, since there often is little or no information in our files for background information.
7.2 Selecting Covered Species
Early discussions with the applicant should identify the proposed activities and the proposed or
approved planning area in order to identify all listed species that may be incidentally taken. Nonlisted species, especially proposed and candidate species, for which permit coverage may be
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desired should also be identified at this time. If there are listed plants in the HCP area, encourage
applicants to also address those plants in the HCP. However, take prohibitions are not applicable
to ESA-listed plants (see section 7.4.6 below), so an HCP must cover at least one listed animal.
The availability of information about the species to be covered should be discussed as soon as
possible to determine whether there is sufficient information available or whether additional
information needs to be collected to complete the HCP.
Helpful Hint: You must have at least one ESA-listed animal species to do an HCP. Encourage applicants
to also include listed plants if any occur in the plan or permit area; and proposed or candidate species
that may be listed during the life of the permit if they may be impacted.

All covered species (listed or non-ESA-listed) in an HCP are treated as if they are ESA-listed
and must have sufficient background information, analysis of effects from proposed covered
activities, and mitigation and monitoring requirements. We should work in partnership with the
applicant to make the decision about which species to include in the HCP and permit application.
The first HCPs written often covered many species, which increased plan development time and
increased costs. Each species covered in the HCP will require a thorough analysis of effects and
a commitment of time to understand their conservation needs to offset the impacts of the taking.
These are very real commitments of time (i.e., takes longer to finish the plan) and money (i.e., to
fund staff/consultants and to implement conservation actions) for the applicant and for the
Services. Finding the right balance between covering species above what is required without
covering too many species involves trade-offs of resources and time, and the decisions of which
species to cover should be based on the benefits of covering each additional species and the costs
of doing so.
Helpful Hint: HCP-covered species lists, especially on large plans, can change throughout development
of the plan as new information is gathered.

Project proponents often don’t have the expertise or knowledge necessary to determine if their
proposed activities are likely to result in take of the species. They may contract an environmental
consultant or contact the Services directly to assist in that determination. Once the project
proponent has information on the probability of incidental take from the proposed activities, they
are responsible for deciding whether to apply for an incidental take permit and prepare an HCP.
The project proponent may ask the Services for advice on the decision, but we cannot force a
project proponent to apply for a permit; hence, the often-heard phrase that HCPs are applicant
driven. However, should incidental take occur from the activities, the project proponent is liable
for violation of section 9 of the ESA.
7.3 Addressing Non-ESA-Listed Species in the HCP
Covering non-ESA-listed species in an HCP is a decision that should be based on the likelihood
of listing, risk of take, availability of existing information, additional monetary costs, and
additional time required to include them in the HCP. Coverage of non-listed species should also
be judged in terms of feasibility from the applicant’s point of view, overall benefits to the
species, and whether there is sufficient species information available for the Services to
determine if covered activities may affect the species. Also consider state requirements: would
including a non-ESA-listed species help the applicant meet state regulatory needs?
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7.4 Special Considerations for Species Coverage
7.4.1 Migratory Birds
The Migratory Bird Treaty Act (MBTA) (see the HCP Handbook Toolbox) prohibits take, as
defined in the MBTA, of all migratory birds in the United States. If a migratory bird is listed
under the ESA, an ESA incidental take permit can authorize take of that species that is otherwise
prohibited by the MBTA (Chapter 16.2.1). However, if an MBTA protected species is not ESAlisted, the FWS does not have a way to authorize incidental take.
How we address migratory birds in and HCP will depend on the project, its expected effects on
migratory birds, and our conservation concerns for those species. While covering ESA-listed
birds should be done like any other covered species, what to do about non-ESA-listed birds has a
few options. Coordinate with migratory bird staff early; they can help identify conservation
needs and recommendations for voluntary conservation measures or other measures.
There are three approaches to dealing with non-ESA-listed bird species that may be taken from
HCP covered activities:
1. Cover them in the HCP (like other covered species) to demonstrate the applicant’s good
faith efforts to comply with MBTA.*
2. The applicant can develop a Bird and Bat Conservation Strategy (BBCS).* A BBCS
identifies conservation measures for migratory birds affected by covered activities and
specific avoidance, minimization and mitigation measures an applicant will take to
reduce their impacts on MBTA species.
3. The applicant could adjust covered activities to avoid take of MBTA species. If
necessary, these avoidance measures could be included on the permit as “other measures
as required.”
*The FWS Office of Law Enforcement may take into consideration the good faith effort should
unintentional MBTA violations occur.
Seek help from FWS migratory birds staff to determine which of the above approaches is most
appropriate. Figure 7.4a summarizes the different options for covering bird species.
7.4.2 Bald and Golden Eagles
The Bald and Golden Eagle Protection Act (BGEPA) (see the HCP Handbook Toolbox) was
enacted in 1940 (before the ESA) to conserve eagles. In 2009, the FWS amended the BGEPA
implementing regulations to allow for, under certain circumstances, the permitting of incidental
take of bald and golden eagles. Issuance of a take permit under the BGEPA requires a
determination that the take is compatible with the preservation of eagles, which the FWS defines
to mean that the taking is consistent with the goal of stable or increasing breeding populations.
Currently, the FWS has sufficient data to show that golden eagle populations cannot sustain any
additional unmitigated take without experiencing declines. Accordingly, all new authorized take
of golden eagles must be at least equally offset by compensatory mitigation in the form of

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actions that either reduce another ongoing source of mortality or lead to an increase in carrying
capacity that allows the eagle population to grow by an equal or greater amount.
FWS will only issue permits for eagles where the take is associated with, but not the purpose of,
the activity, and it cannot practicably be avoided. Therefore, applicants need to include all
practicable measures they plan to use to avoid the potential for take and explain how any
anticipated take of eagles from covered activities cannot practicably be avoided. Applicants will
also need to include appropriate measures to support a determination that the plan will achieve
the BGEPA’s standard of maintaining stable or increasing breeding populations.
Applicants can choose to include bald and golden eagles on the incidental take permit for an
HCP. Doing so also confers take authorization under the BGEPA (50 CFR 22.11) without the
need for a separate permit. However, when making permit decisions, FWS must consider
whether the permit issuance criteria under both ESA and BGEPA will be met by the
conservation measures included in the HCP. Additional information on the permitting
requirements for authorizing the take of eagles under BGEPA can be found in the permit
regulations (50 CFR 22.26) and the FWS 2009 permit rule (74 FR 46835). In general, combining
the requirements of BGEPA and ESA is more efficient than applying for two separate permits.
FWS staff can reference the May 10, 2011 memorandum entitled “Use of Endangered Species
Act Section 10 Permits to Provide Bald and Golden Eagle Act Authorization for Incidental Take
of Bald Eagles and Golden Eagles;” refer to the HCP Handbook Toolbox for more information
about including eagles in HCPs. As with other species, including eagles in an HCP without take
authorization is possible, but the pros and cons of this approach should be examined before
making this decision.

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Figure 7.4a: Different approaches to receive take coverage for eagles and for non-ESA
listed birds, different approaches to demonstrate good faith effort to comply with MBTA

7.4.3 Anadromous Fish
Close collaboration between the Services is required when an applicant’s proposed covered
activities are likely to cause take of both FWS and NMFS listed species, such as salmon and
sturgeon. When both agencies are working with an applicant on development of an HCP, careful
planning is necessary to ensure efficient development of the plan. Any differences the two
agencies have about minimizing or mitigating take for a species or a life stage of a species in an
HCP should be discussed early in the process so issues can be resolved.
When discussing species coverage in an HCP that covers both NMFS and FWS trust species, the
HCP must cover at least one ESA-listed species, however the HCP doesn’t need to cover an
ESA-listed species for each agency.
7.4.4 Sea Turtles
Jurisdiction of listed sea turtles is shared by FWS and NMFS in accordance with a July 1977
Memorandum of Agreement (MOA). FWS has jurisdiction over sea turtles while they are on the
land, while NMFS has jurisdiction in the water. Close collaboration between the Services may be
needed when an applicant's proposed activities cross our jurisdictional boundaries.

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7.4.5 Marine Mammals
Jurisdiction over marine mammals is split between NMFS and FWS. NMFS is charged with
conserving and protecting whales, dolphins, porpoises, seals, and sea lions. Walrus, manatees,
otters, and polar bears are under FWS’ management authority. When developing an ESA
incidental take permit application and conservation plan, it is imperative that an applicant work
with the Services from the outset in order to determine if their action is likely to incidentally take
marine mammals. If marine mammals could be incidentally taken as a result of proposed
activities, the applicant should also begin a separate Marine Mammal Protection Act (MMPA)
(see the HCP Handbook Toolbox) application process for authorization of incidental take of
marine mammals under that statute. Sections 101(a)(5)(A) and (D) of the MMPA provides
authority for the Secretary of Interior or Commerce to allow “incidental, but not intentional” take
of small numbers of marine mammals from a specified activity in a specified geographical
region. Section 7(b)(4)(C) of the ESA also requires the Secretary of Interior or Commerce to
conclude that the taking of ESA-listed marine mammals is authorized under section 101(a)(5) of
the MMPA before issuing an incidental take statement. In order to obtain authorization under the
MMPA, an applicant must also apply for an MMPA Letter of Authorization or Incidental
Harassment Authorization.
To authorize take under the MMPA, the relevant Services must find that the action:
1. will have a negligible impact on the affected species or stock, and
2. will not have an unmitigable adverse impact on the availability of such species or stock
for taking for subsistence uses.
NMFS may authorize MMPA incidental take through either a letter of authorization issued in
conjunction with activity-specific regulations or a more streamlined incidental harassment
authorization. The applicant must consider what type of MMPA incidental take authorization is
most appropriate, but a letter of authorization is often more appropriate for those engaged in the
HCP process because it can cover a longer time frame - up to 5 years. An incidental harassment
authorization is valid only for taking by harassment for up to one year.
Establishing an “incidental take” authorization for marine mammals requires either: (1) an
activity specific rule-making under section 101(a)(5)(A) with notice and comment that results in
the publication of regulations governing issuance of Letters of Authorization or (2) a more
streamlined notice and comment procedure for IHAs under section 101(a)(5)(D), depending on
the level of taking and the duration of the authorization being requested (50 CFR 18; NMFS
regulations are 50 CFR 216). Within FWS, authority for MMPA permits has been retained at the
Division of Management Authority. Within NMFS, authority for MMPA permits has been
retained in the Office of Protected Resources, Permits, and Conservation Division.
If marine mammals are not identified as an issue up front, the permitting process could become
much more time consuming (effectively doubled) if it is later discovered that marine mammals
will be incidentally taken under the ESA, for instance during section 7 consultation. Therefore, it
is in the interest of both the applicant and the Services that MMPA compliance requirements are
running concurrently with the ESA permitting and consultation process.

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Figure 7b: Marine Mammal Protection Act: Incidental Take Authorization

7.4.5.1 Incidental Harassment Authorization (IHA)
The applicant may apply for an Incidental Harassment Authorization (IHA) if they can show that
(1) the underlying activities have no potential for serious injury or mortality, or (2) they can
negate the potential for serious injury or mortality through mitigation requirements in the
requested authorization. Serious injury is defined as “any injury that will likely result in
mortality” (50 CFR 216.3).
The IHA process does not require procedural rulemaking; however, the Services must solicit
public comment by publishing the proposed authorization in the Federal Register. The MMPA
indicates that IHAs should be issued within 120 days of a Services’ receipt of a complete
application (although other factors may, in practice, lengthen this time).
7.4.5.2 Letter of Authorization
If covered activities are likely to cause or lead to serious injury or death, and they cannot be
moderated by mitigating measures, or if the applicant seeks take coverage for a longer period of
time, the applicant must obtain a letter of authorization (LOA). For well-planned, multi-year
activities for which enough detailed information can be provided in an application to allow for a
robust analysis of multiple years of activities, we may use the rulemaking/LOA process, even
when serious injury or mortality is not anticipated, because annual renewal of LOAs during the
effective period of the specific regulations does not require a public comment period and is
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administratively less cumbersome than requesting and processing a new IHA every year. To
issue an LOA, we have to promulgate regulations, which may be valid for a maximum period of
5 consecutive years. We may issue LOAs annually under these regulations or for up to the
maximum 5-year period of validity. Under NMFS implementing regulations for section
101(a)(5)(A), the MMPA rulemaking process includes two public comment periods, including
public notice of the receipt of a request and, subsequently, a proposed rule.
Both proposed IHAs and proposed rules must outline:
1. permissible methods of taking;
2. the means of effecting the least practicable adverse impact on the species or stock and its
habitat and on the availability of the species or stock for subsistence uses; and
3. requirements for monitoring and reporting, including requirements for the independent
peer-review of proposed monitoring plans where the proposed activity may affect the
availability of a species or stock for taking for subsistence uses.
If the information submitted in support of the incidental take request is sufficient (i.e., it would
support necessary analyses as well as preparation of the requisite NEPA analysis and ESA
section 7 consultation), we start processing the LOA. Decisions on LOA applications, which
include two comment periods, possible public hearings, and consultations, may take between 10
and 18 months or longer. In contrast, IHA decisions involve just one comment period and,
depending on the issues and species involved, can take anywhere from 4 to 9 months. However,
as stated above, considering issues such as the form of take contemplated by the applicant
engaged in the HCP process, and the need for multi-year coverage, the IHA process would
appear to have little utility to most of those seeking large scope and long enduring incidental take
permits.
After the appropriate type of MMPA authorization is determined, the applicant must submit a
written request to the Services (FWS for sea otters, manatees, polar bears, and walrus, and
NMFS for all others).
Requests made to NMFS for MMPA authorization must include items 1-14 below:
1. A detailed description of the specific activity or class of activities that can be expected to
result in incidental taking of marine mammals;
2. The date(s) and duration of such activity and the specific geographical region where it
will occur;
3. The species and numbers of marine mammals likely to be found within the activity area;
4. A description of the status, distribution, and seasonal distribution (when applicable) of
the affected species or stocks of marine mammals likely to be affected by such activities;
5. The type of incidental taking authorization that is being requested (i.e., take by
harassment only; take by harassment, injury, or death) and the method of incidental
taking;
6. By age, sex, and reproductive condition (if possible), the number of marine mammals (by
species) that may be taken by each type of taking we describe in (5) above, and the
number of times such takings are likely to occur;
7. The anticipated impact of the activity on the species or stock;
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8. The anticipated impact of the activity on the availability of the species or stocks of
marine mammals for subsistence uses;
9. The anticipated impact of the activity on the habitat of the marine mammal populations,
and the likelihood of restoration of the affected habitat;
10. The anticipated impact of the loss or modification of the habitat on the marine mammal
populations involved;
11. The availability and feasibility (economic and technological) of equipment, methods, and
manner of conducting such activity or other means of effecting the least practicable
adverse impact on the affected species or stocks, their habitat, and on their availability for
subsistence uses, paying particular attention to rookeries, mating grounds, and areas of
similar significance;
12. Where the proposed activity would take place in or near a traditional Arctic subsistence
hunting area or may affect the availability of a species or stock of marine mammal for
Arctic subsistence uses, the applicant must submit either a "plan of cooperation" or
information that identifies what measures it took or will take to minimize any adverse
effects on the availability of marine mammals for subsistence uses;
13. The suggested means of accomplishing the necessary monitoring and reporting that will
result in increased knowledge of the species, the level of taking or impacts on populations
of marine mammals that are expected to be present while conducting activities and
suggested means of minimizing burdens by coordinating such reporting requirements
with other schemes already applicable to the people conducting such activity. Monitoring
plans should include a description of the survey techniques that will be used to determine
the movement and activity of marine mammals near the activity site(s), including
migration and other habitat uses, such as feeding. Guidelines for developing a sitespecific monitoring plan may be obtained by writing to the Director, Office of Protected
Resources; (NMFS) and
14. Suggested means of learning of, encouraging, and coordinating research opportunities,
plans, and activities relating to reducing such incidental taking and evaluating its effects.
FWS informational requirements are similar to NMFS’s list above. FWS's MMPA regulations
are at 50 CFR 18.1 through 18.34, with general exceptions in 18.21 through 18.26. Incidental
take is mostly covered by 50 CFR 18.27. FWS does not provide a 3-200 application form for
MMPA.
7.4.6 Plants
Although take prohibitions do not apply to listed plant species in the ESA, plants can and often
should be included in HCPs as covered species. Because the Services cannot issue a permit that
would jeopardize the continued existence, or destroy or adversely modify the designated critical
habitat of, any listed species (including plants), covering plants in an HCP may be prudent to
avoid these problems in the HCP permitting process. When plants are covered in an HCP,
encourage applicants to include measures that will provide a conservation benefit to listed plant
species to be addressed in an HCP (which may also lower the required level of NEPA analysis).
In addition there may be State laws that prohibit take of state listed plants and an HCP can
provide the instrument to satisfy State law.

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When plants are included as covered species in an HCP, they may be included on the permit for
various reasons including:
1. Plants are protected under a state law and our permit can facilitate compliance with state
requirements
2. the applicant wants No Surprises assurances to cover plants, and the HCP provides
minimization and mitigation measures for the plants to meet the permit issuance criteria
3. some other compelling reason to include plants on the permit
7.4.7 State Protected Species
In States that have their own endangered species laws, it is particularly important to coordinate
the development of the HCP for covered species with the State natural resource agency. For
example, in Illinois, the State accepts the HCP as part of their process to authorize incidental take
of State-listed species. In Illinois, if an applicant needs incidental take coverage of State-listed
species, including it as a covered species in the HCP might be an efficient way to meet State
requirements. On the other hand, some State laws prohibit take of their listed species but have no
mechanisms for authorizing such take. If a federally listed species is also State-listed, the
applicant and the Services should work closely with the State resource agency to ensure their
needs for the species are considered in the HCP.
7.4.8 HCPs and Enhancement of Survival Permits
Candidate conservation agreements with assurances (and their associated permit) cover the
permittee’s incidental take if a covered species becomes listed. Safe harbor permits also cover
incidental take as long as the permittee maintains a certain baseline of habitat or species
numbers. These enhancement of survival permits provide No Surprises assurances similar to
HCPs, and they can be amended to adapt to changing circumstances. Nevertheless, there are
growing numbers of situations where covered landowners seek significant, fundamental changes
that may require an HCP. A landowner may want to change their land use in ways completely
incompatible with their permit, or a covered property might be incorporated into a larger-scale
regional project. A landowner could also decide to forgo returning to baseline and make the
“credits” gained for the species available to others or to meet their own mitigation needs in an
HCP.
The Services need to carefully consider the agreements and analyses supporting the enhancement
of survival permit, as well as the changed circumstances when working on the HCP. Would the
proposed land use change truly exceed take levels already authorized (e.g., below baseline)? The
existing enhancement of survival permit may already address appropriate responses if a
permittee decides to terminate their agreement. As much as possible, we should respect the
voluntary measures that have already been implemented. For example, a Safe Harbor Agreement
(SHA) conservation site might become the mitigation site for the new HCP, in which case, the
HCP should build off the conservation achievements of the SHA and include them in the HCP.
In this situation, the HCP permit terms will usurp the SHA permit terms at the site. In some cases
there may be ongoing conservation commitments from implementing the existing SHA that must
be retained. For example: the XYZ SHA has a conservation commitment that extends 10 years
beyond the permit term to maintain certain habitat conditions. After the SHA expires the
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landowner wants to use the SHA area as part of a new HCP; in this case the conservation
commitment beyond the SHA permit term must be honored.
On a safe harbor property, the status of above-baseline species or habitat may become open to
negotiation. The landowner has the authority to take down to baseline, but any above-baseline
resources might figure into the mitigation of a potential HCP. If there is no way to accommodate
the existing covered species, either above- or below-baseline, into newly proposed land uses,
then a safe harbor permittee seeking an HCP may need to consider off-site compensatory
mitigation.
FWS biologists negotiating SHAs should consider the possibility that an agreement might
eventually need to be transformed into an HCP. Additional guidance is in the HCP Handbook
Toolbox.
7.5 Addressing Critical Habitat
When a species is proposed for listing as endangered or threatened under the ESA, the Services
must consider whether there are areas of habitat essential to the species' conservation. Within the
geographical area occupied by the species at the time it is listed, critical habitat is the specific
areas that contain features essential to the conservation of an endangered or threatened species
that may require special management considerations or protection. Critical habitat may also
include areas outside the geographical area occupied by the species at the time it is listed that are
essential for the conservation of the species.
7.5.1 Effect of Critical Habitat on HCPs
Under section 7 of the ESA, Federal agencies must ensure that their activities are not likely to
result in the destruction or adverse modification of designated critical habitat. If proposed
covered activities in an HCP are likely to adversely affect designated critical habitat, section 7
requires us to analyze those effects in the consultation for the proposed issuance of the incidental
take permit and determine if it is likely to destroy or adversely modify critical habitat. If we
determine that covered activities in an HCP are likely to destroy or adversely modify critical
habitat, the applicant must adjust the plan so that they avoid that outcome. If critical habitat is
designated on lands that are covered by an existing HCP, we must reinitiate consultation on the
existing Section 7 analysis to analyze the effects of implementing the plan on critical habitat. If
we find that critical habitat is likely to be adversely modified, we must consider our options
consistent with the regulatory assurances, including:
● work with the permittee to develop reasonable and prudent alternatives so they
can voluntarily adjust implementation of covered activities to avoid adverse
modification to critical habitat, or
● the Services could revoke their permit or coverage for those activities that are
expected to adversely modify critical habitat.
Planning for designation of critical habitat will clarify the response should it be designated in the
plan area (often in the HCP’s changed circumstances section). Typically, the response outlined in
the plan is a commitment by the permittee to adjust covered activities to avoid adverse
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modification as determined by Services staff in consultation with the permittee. If designation of
critical habitat is included as a changed circumstances and it has specific measures the applicant
will take to avoid actions that would result in adverse modification of critical habitat, then we are
able to avoid problems with No Surprises and we should be able to avoid permit revocation. As
discussed below in detail, the designation of critical habitat in a permitted HCP should not be
needed if the plan provides a benefit to the species and its habitat.
7.5.2

Critical Habitat Exclusions

The Services jointly issued a policy on February 11, 2016 (81 FR 7226) (see the HCP Handbook
Toolbox) that provides predictability, transparency, and consistency regarding exclusions from
critical habitat designations. Rather than cover the entire range of factors that may be considered
as the basis for an exclusion in any given designation, the policy provides our position on how
we consider non-permitted conservation plans and partnerships; conservation plans permitted
under section 10 of the ESA; tribal, military and Federal lands; and economic impacts in the
exclusion process.
Under section 4(b)(2) of the ESA, all discretionary decisions to exclude areas from a critical
habitat designation, including areas covered by a permitted HCP, must be based on a case-bycase analysis to determine whether the benefits of exclusion outweigh the benefits of inclusion
and will not result in the extinction of the species. Our critical habitat policy doesn’t alter this
requirement, but it clarifies the critical habitat exclusion process for Federal and State agencies,
tribes, and the public. It also provides a defensible and predictable critical habitat exclusion
process.
The policy consists of the following HCP-related elements that the Services consider when
determining whether to exclude any areas from critical habitat:
● Section 10 permitted conservation plans: When we undertake a discretionary 4(b)(2)
exclusion analysis, we will always consider for exclusion from a designation of critical
habitat those areas covered by an approved candidate conservation agreement with
assurances/safe harbor agreement/HCP if incidental take caused by the activities in those
areas is covered by a permit under section 10 of the Act.
● Partnerships and conservation plans: When we undertake a discretionary 4(b)(2)
exclusion analysis, we will give great weight and consideration to the conservation
benefits provided through conservation plans, programs and partnerships before
designating critical habitat. We will generally exclude areas from critical habitat
designation when those areas are covered by approved and implemented plans or
programs, and involve demonstrated partnerships that provide a benefit to the species and
its habitat. This policy element could be used to evaluate an area covered by an HCP that
is not yet permitted, but is in the final stages of permitting.
7.6 Identifying the Role of the Plan Area in the Conservation of Each Covered Species
Understanding the value of the approved plan area to covered species is necessary to understand
how both the impacts and conservation of the HCP will affect the overall species’ status. See
chapter 9 for more information about developing the HCP conservation program.
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The role of the HCP area in the conservation of covered species relative to the overall range of
the species is an important consideration for the section 7 (jeopardy analysis) and NEPA
(cumulative effects) analyses. This information also helps us understand the conservation needs
of the species to develop an appropriate conservation strategy. Examples of questions we could
ask to understand the context of the plan area to the species include:
●
●
●
●
●
●
●
●
●
●

What percent of total habitat or species’ range occurs in the HCP area?
Does the HCP area contain designated critical habitat?
Is the HCP area a core area for the species?
Does the HCP area include habitat needed for recovery of the species as identified in the
recovery plan? If there is no recovery plan or if a plan is not up-to-date, the best available
information must be used.
Does the HCP area harbor a genetically unique or isolated population?
Does the HCP area harbor a source population that enhances surrounding populations
outside the plan area?
Are there climate refugia or other conditions important for conserving climate sensitive
species in the HCP plan area?
How will implementation of the plan’s covered activities negatively affect the species
outside the plan area and the overall range of the species?
How will implementation of the plan’s conservation program enhance the species status
outside of the plan area and the overall range of the species? Can we quantify it?
How will changes to habitat quantity and quality affect the species outside the plan area
and the overall range of the species? Does the HCP area play a particularly important role
for the species in terms of habitat quality or quantity?

The structured framework in the FWS “Species Status Assessments” (see the HCP Handbook
Toolbox) could be useful to adopt for developing a conservation strategy for HCPs.
Threats to the species both inside and outside the plan area are important to keep in mind when
developing a conservation strategy for covered species. Large-scale threats, like effects of
climate change, can add to the importance of evaluating the role of the HCP area relative to
outside the area and of the overall range of the species. Some of the questions we should
consider include:
● Are there large-scale threats that could impact the conservation program of the HCP (e.g.,
white-nose syndrome in bats, various widespread impacts related to invasive species, or
effects of climate change such as drought, increased spread of invasive species, increased
risk of wildfire, sea level rise, etc.)?
● Are those threats already occurring in the plan area, or is the HCP area currently a safe
haven from an important threat?
● Is the species particularly vulnerable to specific effects of climate change? Are there
habitats in the HCP area that would be important to serve as refugia for covered species
from the projected effects of climate change? Are there areas within the HCP boundary
that should be conserved to help keep the effects of climate change from undermining the
effectiveness of the HCP’s conservation strategy for the covered the species (e.g., provide
a diversity of conditions that will allow the species to adapt to changing conditions, or
that facilitate movement in response to changing conditions)?
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7.7 Tools
Developing a conservation program and analyzing effects from plan implementation can be
challenging tasks, but there are tools that can help (see the HCP Handbook Toolbox). Below is a
small selection of tools that may be useful in developing your HCP: use them if they are helpful,
but there is no obligation or requirement to use them. As with all data driven tools, the results
need to be interpreted carefully as data quality and quantity affect the analysis and results.
Similar HCPs may have already conducted analyses that could be useful to consider in your
HCP. The summaries below are to get you started; more investigation is needed to understand
and use these tools.
7.7.1 Climate Change Effects Analysis
Understanding the realm of ongoing and future effects of climate changes can be an important
consideration to provide context for decisions during the HCP development process, and in
related section 7 and NEPA processes. Considering climate change early in plan development
can help to ensure the conservation program has durable outcomes. There are many ways to start
your climate change analysis; we offer the following sequence to focus your climate work only
on the variables that matter for your covered species and their habitats:
● You might want to start by exploring what climatic variables the covered species are
sensitive to, for example:
● Do you have a species that is sensitive to temperature (e.g. a fish species with
narrow temperature tolerance)?
● Do you have coastal habitat that is sensitive to flooding?
● Do you have a species or habitat that is sensitive to variability of precipitation
(e.g. seasonally flooded pond habitat)?
● Having narrowed your focus to climatic variables that are important to your species:
how might those climatic variables change in future climates? If you’re unfamiliar with
climate trends and projections, you can review regional summaries put out by federal
entities such as the National Climate Assessment, USGS Climate Science Centers,
USFWS Landscape Conservation Cooperatives, or NOAA Regional Integrated Sciences
and Assessments programs.
● Given the expected changes and effects to covered species and habitats from climate
change- how should we adjust the conservation strategy for those sensitive species to
manage climate-related risks and meet goals and objectives? How much would various
climatic factors have to change for it to matter for the decisions we make for this HCP?
Different types of analytical tools may be useful to help work through the analytical steps above:
computer models to project climatic changes (e.g., changes in temperature, precipitation, sea
level, storm severity or extreme events); models, experiments, or expert elicitation to assess
likely direct, indirect, and interactive effects on species, communities, and habitats; and decision
analytic approaches to decide how to manage climate-related risks. In many cases it may be
appropriate to use existing scientifically credible information, rather than conducting new
analyses. User-friendly scientific tools are available online that may be suitable for some
analyses. For example: Defenders of Wildlife has conducted a “coarse filter” assessment of
climate change sensitivity for all U.S. species currently listed as endangered: that database is
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available on request. In all cases it will be important to understand the appropriate uses and
limitations of the tools, as well as best practices for interpreting and using model outcomes or
other information. Since tools are continuing to improve for assessing and addressing climate
change and its effects, obtaining the assistance of Services or other climate change specialists
will help ensure efficiency and effectiveness. Tools and guidance for incorporating climate
change into HCPs are in the HCP Handbook Toolbox.
7.7.2 Conceptual Models
Conceptual models can range from basic to complex graphics used to simplify problems by
laying out how the system, species, or threats are thought to work and affect each other.
Conceptual models can be useful early in the HCP development process as hypotheses about
how the system works and the discussions during their development promotes close coordination
between the Services, the applicant, and their consultants. See 10.1.2.1 for more on conceptual
models. Mental modeler and Lucid Chart (see the HCP Handbook Toolbox) are 2 examples of
free and easy to use programs to help develop conceptual models.
7.7.3 Decision Support Models
Structured decision making is a general term for a logical process to make decisions. It involves
carefully organized analysis of problems to reach decisions that are focused clearly on achieving
fundamental objectives. Based in decision theory and risk analysis, structured decision making
encompasses a simple set of concepts and helpful steps, rather than a rigidly-prescribed approach
for problem solving. Key concepts include clearly articulated goals and objectives, dealing
explicitly with uncertainty and transparency in decision making, and integrating science and
policy explicitly. Decision support tools include decision trees, scoring matrix tables, etc. These
tools can be useful throughout the entire HCP process whenever decisions need to be made. For
more information about structured decision making see the HCP Handbook Toolbox).
7.7.4 Effects Pathway Model
The Effects Pathway Model can be used to identify stressors and explore how those stressors
might affect covered species. We describe the effects pathway model in Chapter 8.
7.7.5 Geographic Information System (GIS)
GIS is an essential tool for logically laying out an HCP area and displaying it through maps. GIS
can also be a useful tool for analyzing complex spatial data. GIS analyses can include many
things like: species locality analysis and modeling, vegetation locality analysis and modeling,
determining location of different habitat, spatial analysis/depiction of likely locations of habitat
change related to climate change effects and many more. All of these analyses and map making
are often an integral part of reserve design, avoiding impacts in important areas, etc. The
mapping and analytical outputs of GIS are indispensable tools for all HCPs. More information
about GIS, see the HCP Handbook Toolbox.

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7.7.6 Habitat Equivalency Analysis (HEA)
HEA (see the HCP Handbook Toolbox) is a methodology we use to determine compensation for
natural resource damages. HEA was developed specifically for damages caused by things like
spills and hazardous waste contamination. The idea behind HEA is that the public can be
compensated for past losses of habitat resources through habitat replacement projects of the same
type lost. The HEA process attempts to understand the value of lost habitat services and find a
replacement of restored habitats that provides services of the same type and quality, and of
comparable value as those lost due to injury. HEA assumes the public is willing to accept a oneto-one trade-off between the service lost and the service gained by the restoration. This process
can be useful when developing HCPs to determine impacts of the taking and how to
appropriately compensate for it. However, information provided by an HEA will need to be
considered in conjunction with the statutory permit issuance criteria.
7.7.7 Population Viability Analysis (PVA)
PVA (see the HCP Handbook Toolbox) is a species-specific method of risk assessment
frequently used in conservation biology. It is a process that estimates the probability that a
population will go extinct within a given number of years. PVA is a statistical approach that
utilizes ecological data to bring together species characteristics and environmental variability and
forecasts population health and extinction risk. Each PVA is unique and is individually
developed for a target population or species, provided sufficient information is available to result
in credible modeling. It will be important to consider whether the underlying assumptions of a
particular PVA process need to be adjusted due to various changing conditions related directly or
indirectly to effects of climate change. Although PVAs can be useful for HCPs to evaluate the
population level effects from an HCP’s implementation area, we need to interpret the results
carefully as the quality and quantity of the data affects the analysis. PVA is useful for comparing
scenarios and how they may affect the risk of extinction, we can also use this information to
understand actions that will improve the conservation status of the species.
7.7.8 Reserve Design Optimization Models
Reserve design optimization models can be useful in both the HCP development and
implementation phases. These models make use of known species occurrence data (or modeled
habitat suitability data) combined with values defined by the user (e.g. minimum patch size,
distance from X activity, number of species per grid cell, high habitat quality, etc.) to analyze the
landscape and produce a solution or range of solutions that best meet the user-defined goals (e.g.
where are the best places to preserve habitat?). For example, you might ask the model to identify
10 acres of a 100-acre area that has the most species that use the area. You could also incorporate
model projections of future climate to understand future species use in that same area. These
tools can be extremely useful in balancing species conservation needs with development needs
during the reserve design development process. Zonation and MARXAN are good examples of
reserve design optimization models.

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7.7.9 Resource Equivalency Analysis (REA)
REA (see the HCP Handbook Toolbox) involves determining the amount of “natural resource
services” that the affected resources would have provided had they not been injured. It equates
the quantity of lost services with those created by proposed compensatory restoration projects
that would provide similar services. The unit of measure may be acre-years, stream feet-years, or
some other metric. The size of the restoration project is scaled to the injury first; the cost of
restoration is then calculated after the scaling is complete. The cost of restoring a comparable
amount of resources to those lost or injured is the basis for the compensatory damages. REA
calculates the replacement cost of the lost years of natural resource services. This process can be
useful for HCPs in helping to determine impacts of the taking and how to appropriately
compensate for it.
7.7.10 Species Distribution and Habitat Suitability Models
We can estimate species distribution and potential changes to it based on their pattern of
occupancy as it relates to biotic or abiotic variables. These models generally analyze species
occurrence records against numerous biological (e.g., vegetation associations), geological
variables (e.g., elevation), and climatic variables (e.g., rainfall) to determine the bio-climatic
envelope in which the species inhabits. This bio-climate envelope can help explain where the
species lives and can be used in places where data are insufficient to predict areas the species
may also occupy (now or in the future). Species distribution models can integrate other variables
depending on the technique used including: dispersal/migration, disturbance, and abundance. We
can also use them to help assess climate change effects and conservation management issues by
incorporating the results of climate models to help predict how future habitat distributions will
change. There are a range of types of species distribution models, including: presence/absence
models, dispersal/migration models, disturbance models, and abundance models. Species
distribution models can be very helpful during HCP plan development to assess: what areas
should be included in the approved planning area, habitat quality throughout the plan area,
ecological corridors, and for design of both planned conservation areas and approved impact
areas (e.g., highest biological value to be avoided). Some species distribution models are
available online some are being refined, and new models are emerging. We encourage HCP
practitioners to check with Services staff with the appropriate expertise about using such
modeling and interpreting the model outcomes. Simple models can be created through GIS, or
dedicated models like MaxEnt can be utilized.
7.7.11 Species Status Assessments
The species status assessment concept was designed to provide a common, consistent,
repeatable, scientifically sound approach that will help serve as a basis for informing future ESA
decisions. Using the SSA Framework early can help provide the context for a decision on
whether protections are warranted, later for decisions regarding what is needed for its
conservation and recovery, what the greatest research needs are, and how public or private
actions may affect the species. Staff in each region are available to provide support to help
ensure we continue to build on and improve the successes the SSA Framework has already
delivered. Over time, completed species status assessments are expected to be available for many

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species and used for: candidate conservation, analyses for listing decisions, consultations, grant
allocations, HCPs, and recovery planning.
7.7.12 Spreadsheet Population Models
Spreadsheet population models can be simple logic paths to help understand complex problems.
Simple spreadsheet population models often use basic life history traits to evaluate how
populations may change as new variables are introduced or as life history values change.
Spreadsheet population models can be useful tools for HCP development to evaluate how
population numbers may change as the HCP is implemented.
7.8 Data Sharing
Collaboration is an extremely important element of efficient HCP development; data sharing is
no exception. The applicant and the Service must work together to provide the necessary
information to develop the HCP.
For HCPs where maps are developed, analyses performed, or data is collected, a data
management and sharing plan should be developed. A data management and sharing plan
describes the data that will be authored, what will be shared, how it will be shared, and how the
data will be managed throughout its lifetime.
For more information on data management plans see 10.4 and the HCP Handbook Toolbox.
7.8.1 Freedom of Information Act (FOIA) and Proprietary Data
Most information must be released, if requested under FOIA (see the HCP Handbook Toolbox),
once the Services have the data in their files. These data may include species occurrence
locations, which are often thought of as sensitive data.
The following are examples of exemptions that the Services can typically use to withhold
proprietary, financial, and personal information from being released when a Freedom of
Information Act request is submitted:
● Covered by a Statute - information specifically exempted from disclosure by
another statute such as the National Parks Omnibus Management Act of 1998, the
Archaeological Resources Protection Act of 1979, the Federal Cave Protection
Act of 1988, or the National Historic Preservation Act Amendments of 1966, as
amended through 2006.
● Trade secrets, commercial or financial information (confidential business
information).
● Personal information affecting an individual's privacy.
● Geological and geophysical information, including maps, concerning wells.
Always coordinate with the Regional FOIA coordinator and the Solicitors or General Counsel
offices to determine which documents may fit the exemptions. Although we may assert that
information should be withheld based on one or more of the FOIA exemptions listed above, the
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applicant should be aware that FOIA requesters may appeal withholding of information to the
Departmental General Counsels and ultimately to a United States District Court. If a requester’s
appeal is successful, we will have to release the contested information.

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Chapter 8: Calculating Take from Land and Water Use Activities
8.1
8.2

Analysis of Take from Proposed Land and Water Use Activities
Determining Take
8.2.1 Sources and Types of Take
8.2.2 Units of Take
8.2.3 Quantity of Take
8.2.4 Take That May Be Accounted for in Another Permitting Process
8.3
Describe the Impact That Will Result from Such Taking
8.4
Section 7 Tasks
______________________________________________________________________________
8.1 Analysis of Take from Proposed Land and Water Use Activities
The Habitat Conservation Plan (HCP) must contain an analysis of the impact which will likely
result from the taking of the covered species. The impact of the taking may have population or
species-level effects substantially greater than just the number of individuals or acres of species
habitat. Ultimately the impacts of the taking must be minimized and mitigated to the maximum
extent practicable. Nevertheless, quantifying the amount of take provides a key basis for
evaluating project impacts. Furthermore, the amount and type of anticipated take must be
described in the section 7 biological opinion for the HCP and identified on the incidental take
permit.
To fully identify all sources of take that may result in an impact, it is necessary to consider each
component of the proposed activity in detail. The following sections provide guidance on how to
conduct this analysis.
8.2 Determining Take
Breaking down an applicant’s proposed activities, as described in Chapter 5.3 and 5.4, will help
to identify the type and amount of incidental take that could result. At this point of planning, we
should be able to:
● identify the resources needed to fulfill the conservation needs (breeding, feeding,
sheltering) of the species or ecosystems (e.g., predator-prey relations, dens re-used by
other species) present in the project area;
● identify, isolate, and examine the components of (“deconstruct” as we often call it) the
activities within your project area that potentially impact those resources; and
● identify and document the chain of logic needed for the development of the HCP’s
conservation program (i.e., biological goals and objectives, avoidance, minimization, and
mitigation measures, etc.).
8.2.1 Sources and Types of Take
FWS has developed a conceptual model to guide the process of evaluating effects to individuals,
called the “effect pathway model.” As introduced in Chapter 5.3, the model is applied to effects
identified as we break an activity into its components. Using the effect pathway model will help
8-1

identify how project activities may affect species, and this helps determine the source, amount
and type of take (see the HCP Handbook Toolbox).
Information in current HCP planning efforts may be used to help populate the effect pathway
model. Developing effect pathways and associated conservation measures to be delivered can be
helpful to the public and FWS biologists alike. Effect pathways use source deconstructions,
which are project activities that have been broken down into the individual steps that, in total,
make up all the activities that may be needed to complete that kind of project. These source
deconstructions, in conjunction with an effects analysis, can be used to help biologists
understand the potential effects of various projects (in terms of both their construction and
operation) on listed and proposed species. Using the effect pathway model to develop an effects
analysis helps to clarify how and why projects might affect covered species, and creates a
logical, transparent rationale for why conservation measures might be needed to avoid, minimize
or mitigate these effects.
The primary purpose for quantifying take in the HCP is to provide a foundation for conducting
the impact analysis. Take can be quantified in a number ways, such as numbers of affected
individuals, nesting groups, or a surrogate measure like acres of habitat or stream miles. Net
effects or impacts to the populations of covered species are addressed in Chapter 12.
Determining the amount of take requires the analysis of the proposed activities to identify ways
the species or their habitats may be affected and whether those effects rise to the level of take.
Identify all the “direct interactions” or “stressors” to resources required by covered species that
may be associated with each activity. A direct interaction is an effect on the individual organism.
A stressor is any agent capable of causing an adverse or beneficial change to a resource upon
which an organism depends. Keep in mind a stressor might change, or new ones come into
effect, as a result of the effects of climate change, such as increased wildfire frequency.
Here are the basic steps of an effect analysis, following the effects pathway model (Figure 8.2).
First, identify the resources required by the species to fulfill their lifecycle needs that may be
affected by a stressor. A stressor acts on a resource, which results in a response by the species.
The resource could be the specific element of the habitat used by the species (e.g. water, gravel,
old growth trees, etc.) or a circumstance (e.g., historic competition or predation rate, natural
ambient lighting, cave microclimate, etc.). The effect can be both direct and indirect (e.g.,
destroying tree cavities used for hibernacula in the summer affects both hibernation habitat
directly and hibernating bats indirectly).
● Identify the resource need affected (i.e., breeding, feeding, sheltering, or migrating) by a
stressor acting on a resource. Resource needs are the basic lifecycle needs that a
resources fulfills for a species (for survival and recovery). More than one resource need
can be affected by a stressor (e.g., an increase in sedimentation stressor may affect
breeding for adults and sheltering for young).
● Identify the behavioral or physical response associated with each stressor. A species’
response is the direct or indirect effect of a stressor or direct interaction on a species,
ranging from stress to system failure. Responses are usually measured on an individual

8-2

basis and then are expressed as a range of responses (e.g., stress, displacement, lack of
foraging ability, mortality).
● Finally, once we have identified the responses of individuals, we must determine the
demographic consequence at the population and species levels and how that may affect
the population’s or species’ status as a whole. For example, loss of sagebrush may lead to
a reduction in a species’ forage base, which can translate into reduced growth that can
delay age at sexual maturity (or reduce size at sexual maturity, or reduce fecundity),
which in turn affects reproduction, which ultimately affects species conservation and
recovery.
● Management options (conservation measures) include avoiding, minimizing, and
mitigating the production of or exposure to a stressor. Ideally, conservation measures
contribute to recovery actions (if a recovery plan has been developed).
Figure 8.2: Effect Pathway Model.

8.2.2 Units of Take
The HCP must identify the impacts likely to result from the proposed incidental take. It must
include defined units to quantify impacts in terms of taking a number of affected individual
animals or acceptable habitat surrogate units within the plan area. These same units are used on
the permit to specify the authorized levels of incidental take.
Numbers of individuals, nesting territories, breeding pairs, etc. often come to mind first, but it is
not always practical to survey and count affected wildlife populations directly. More often we
use a surrogate measure, such as acres of habitat or a measurable ecological condition that we
define and use to express incidental take authorized by a permit. To use a surrogate measure, we
must:
● describe the causal link between the surrogate and take of the covered species,
● explain why it is not practical to express the amount or extent of anticipated take or to
monitor take-related impacts in terms of number of individuals, and
● set a clear standard for determining when the level of anticipated take has been exceeded.

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This justification for use of a surrogate can be in the intra-Service section 7 consultation, the
HCP, or we can reference recovery planning documents, such as a recovery plan or species status
assessment.
When identifying a surrogate measure, also take potential climate change effects into account.
Causal links between the surrogate and take of the covered species may not necessarily remain
valid due to various effects of climate change, such as:
● the emergence of novel species-to-species and species-to-habitat relationships,
● range shifts or other changes in the distribution and abundance of competitors or
predators,
● increased spread of non-native invasive species, or
● differences between surrogate and the covered species in terms of vulnerability to the
effects of climate change.
Incidental take has to be expressed in terms that are measurable and enforceable in the HCP and
in the incidental take permit. The unit of take must be practicable, which means it can be
monitored and the results of monitoring can be applied to adaptive management decisions.
Conducting section 7 analyses concurrently with HCP development helps us better negotiate take
levels in the HCP and identify appropriate units to enumerate take.
Units of take or their surrogates can take many forms:
● In the simplest case, we can identify individual animals, such as desert or gopher
tortoises, likely to be affected by a project.
● Breeding pairs or nesting territories might be readily identified and treated as the
unit of take. However, the actual number of individuals affected becomes less
certain, as the species territory may include the current and previous year’s
offspring. Although we might count nesting territories, the population numbers
affected become less certain.
● Species that aggregate into roosting, hibernation, or maternity colonies test our
ability to tie a “territory” to numbers of individuals. We may be able to measure
only relative sizes of the colony and numbers of colonies.
● In cases where a colony or breeding territory is used as the take unit, habitat acres,
such as foraging area or a buffer, will also often need to be quantified.
● Presence of wide-ranging, secretive species becomes more difficult to measure
directly. Sand skinks, Houston toads, or American burying beetles are difficult to
census, and surveys are often inconclusive. For species like these, we often need
to rely on surrogate units. Usually, the surrogate we use will have resulted from
recovery planning or conservation strategies that emerge from our efforts
independent of any HCP. Nevertheless, an applicant may be able to develop a
new surrogate measure or one tailored to their situation.
● Recovery planning for the Florida panther has resulted in a delineated
consultation area. Take within this area is measured in acres and adjusted by
weighted habitat value factors. This results in a relative measure of impact that
integrates habitat acres and habitat values.

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● For conservation plans addressing coastal or estuarine fishery bycatch of listed
species, applicants quantify expected take from fisheries observer programs in
combination with statistical modeling methods. Typically, the applicant (usually a
State fisheries management agency) will either have a fisheries observer program
in place, or will develop one as part of their conservation plan and use Federal
fisheries observer data. Within these observer programs, observers on vessels
make direct observations of bycatch in certain bodies of water or habitats. These
observations are quantified, described, and logged as data. Data collected from
observer program direct observations are then used to develop models for
estimating covered species interactions. The information gathered from these
direct observations in combination with modeling allows the applicant to generate
estimated take numbers for observed fisheries and build a functional conservation
plan.
● At least one watershed has been modeled to determine the effect of construction
on fish species in the streams. This modeling identifies the additional impervious
surface resulting from new construction as the surrogate measure of take. Though
no HCPs have used this approach, section 7 consultations in this basin use the
surrogate to quantify take resulting from proposed projects.
Whatever surrogate measures are used, we must link them to expected population responses by
the covered species (i.e., stressors and effects). If not provided by practices established in
existing conservation strategies, the applicant may need to develop and explain surrogate
measures in the HCP. The Services must work closely with an applicant who develops novel
surrogates. The surrogate measures of take used in the HCP and incidental take permit usually
are translated to population effects in the intra-Service consultation on the application. This is a
crucial area of HCP development where we need section 7 staff involved early.
The Services and an applicant may not always reach agreement on every aspect of measuring the
take. We may be able to avoid conflict about such issues if we find that the disagreement in
certain intermediate numbers does not affect the impact or mitigation calculations. Determining
this will require looking ahead at the net effects, as we describe in Chapter 12.
8.2.3 Quantity of Take
The amount of take the permit authorizes should be commensurate with the effects of the
incidental take caused by the project throughout the analysis area (see Chapter 6.3.1), plus any
take that results from mitigation activities. There may be additional, separately authorized take as
described in section 8.2.4 below.
8.2.4 Take That May Be Accounted for in Another Permitting Process
As we discuss in Chapter 3.5.5, mitigation and monitoring may cause take in addition to what the
project causes. We need to quantify and consider these sources of take in our biological opinion
and permit findings. The incidental take permit authorizes a permittee to implement the
conservation measures in the HCP, including those that result in take, whenever the permittee is
responsible for implementing the conservation. Often, the permittee will hire contractors with
their own section 10(a)(1)(A) recovery permits to conduct the conservation activities (Chapter
8-5

5.1.2). In this arrangement, the take authority for the conservation activities originates with the
incidental take permit. There often will be continuing management area obligations into
perpetuity or for extended periods. Chapter 9.4 describes the common approaches used to assure
implementation of long-term conservation obligations. In many of these arrangements, the thirdparty managers of conservation banks or in-lieu fee lands, should hold their own recovery
permits for any take required to manage the conservation area.
8.3 Describe the Impact That Will Result from Such Taking
The Endangered Species Act (ESA) and its regulations require that HCPs specify the impact that
will likely result from the taking [ESA section 10(a)(2)(A)(i), 50 CFR 17.22(b)(1)(iii)(A), 50
CFR 17.32(b)(1)(iii)(C)(1) for FWS and 50 CFR 222.307(b)(5)(i) for NMFS (see HCP
Handbook Toolbox)]. Once the initial causes, types, and amounts of take have been identified,
then its impact can be assessed. While take occurs to individuals, the impact of taking occurs at
levels above the individual, such as to the population and the species. Covered activities cause
take of individuals, which in turn impacts the population.
covered activities → take of individuals → impact of the taking on populations and the species
The HCP must specify the impact of the taking on a meaningful, distinct, or relevant population
of the covered species. This is usually the population that is local to the plan area, but might
encompass the species rangewide or a designated population segment. This analysis forms the
basis for determining appropriate avoidance, minimization, and mitigation actions needed to
offset these impacts. When assessing the impact of the taking, it is important to consider context,
intensity, and duration of the impact (we use these terms here independently of the National
Environmental Policy Act definitions, Chapter 13.5.2).
Context is the setting in which the impact of the take analysis occurs. It usually includes
geographic and temporal scales. For example, we might analyze the impact of take on species
numbers, reproduction, and distribution at the covered land scale, recovery unit scale, and rangewide scale. It includes such things as understanding the conservation role of the permit area to
the covered species. Effects to pristine areas that are important to a species may be greater than
effects to already degraded areas that are less important or marginal habitat. Alternatively,
degraded habitats may have considerable relative value if that is all that remains. A site’s
location on the landscape may make it important at certain times of the year or for certain
purposes so that its apparent quality as habitat masks its real importance to a covered species.
We must also assess the impact of the taking in the context of other threats to covered species in
the plan area. For permits that cover a long duration, it is important to consider how the context
of the effects might change over time. For example, there may be other ongoing threats, such as
effects related to climate change, that will affect environmental conditions and the context in
which the impact of the taking occurs.
Intensity is the severity of the impact; for example, the percent of the population impacted or the
quantity and degree to which habitat is affected. We sometimes use population viability analysis
to try to estimate or better understand the possible severity of impacts at various scales, although
the data needed for such analysis often is not available, so many assumptions are made.
Consequently, the outcomes need to be interpreted with care.
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Duration of the permit is at least as long as the duration of the taking. Therefore, effects
analyses for a permit must correspond to at least the duration of the permit, but it may be longer
if the impact is expected to last longer.
The ideal units of take (see section 8.2.2) to use in describing the impacts of the taking on the
covered species are those that are closely associated with reproduction, numbers, and
distribution. This is because reproduction, numbers, and distribution are explicitly associated
with survival and recovery of the species in the wild as well as one of the incidental take permit
issuance criteria [50 CFR 17.22 (b)(2)(i)(D) and 50 CFR 222.307(c)(1)(ii) for NMFS] and the
required section 7 analysis.
Some examples of effect variables related to reproduction are:
● percent decrease in loss or increase of breeding habitat,
● percent decrease of loss of habitat that provides a climate refugia and results in reduced
survivorship or lower reproduction,
● increased disturbance to breeding areas,
● increased predation of juveniles,
● decrease or increase in survivorship,
● decrease in breeding activities due to disturbance,
● loss of spawning grounds, nest trees, etc.
Some examples of negative effects related to species numbers are:
●
●
●
●
●
●

decrease in the numbers of individuals, breeding pairs, or average population size,
loss of an age cohort,
changes in demographics,
loss of recruitment,
changes in age distribution,
creation of a habitat sink (road crossing)

Some examples of negative effects related to distribution are:
● loss or increase of habitat that affects species distribution fragmentation,
● decrease in range,
● loss of stepping stone habitat
The process of determining anticipated incidental take and the development of the mitigation
program are a dynamic and iterative process which is best performed when there is close
coordination between the applicant and the Services.
8.4 Section 7 Tasks
As stated previously, we should anticipate our section 7 analysis throughout the HCP
development process. At this stage, while the applicant is calculating the take levels and impact
of the taking, it is prudent to coordinate with the section 7 staff to come to agreement on the

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causes and forms of take associated with covered activities and on the methods and metrics for
calculating take.

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Chapter 9: HCP Conservation Strategy
9.0
9.1

9.2

9.3

9.4

9.5

Introduction
Biological Goals
9.1.1 How to Develop Useful Goals
9.1.1.1 Habitat-Based Goals vs. Species-Based Goals
9.1.2 Responsibility for Developing Biological Goals and Objectives
9.1.3 When to Develop Goals and Objectives
9.1.4 Number of Biological Goals
Biological Objectives
9.2.1 SMART
9.2.2 Considering Climate Change Effects in the Development of Goals and
Objectives
Conservation Measures
9.3.1 Avoidance Measures
9.3.2 Minimization Measures
9.3.3 Mitigation Measures
9.3.3.1 Restoration of Degraded Habitat
9.3.3.2 Land Preservation
9.3.3.3 Creation of New Habitat
9.3.3.4 Habitat Enhancement
9.3.3.5 Threat Reduction or Elimination
9.3.3.6 Translocation
9.3.3.7 Repatriation
9.3.4 Putting Goals, Objectives, and Measures Together
9.3.5 How Much Minimization Compared to Mitigation?
Mitigation Implementation
9.4.1 Permittee Implemented Mitigation
9.4.2 Conservation Banks
9.4.3 In-Lieu-Fee Mitigation
9.4.4 Dealing with Uncertainty in Goals, Objectives, and Measures
9.4.5 Determining Location for Mitigation
9.4.6 Planning for Inflation
9.4.7 Conservation Design
9.4.8 Permittee Responsibilities: Meeting Goals and Objectives, or Specific
Actions in the HCP
9.4.9 Timing of Mitigation
9.4.10 Mitigation and ‘Stay ahead’ Provisions
The Maximum Extent Practicable Standard
9.5.1 How to Demonstrate Fully Offset
9.5.2 Demonstrating Additional Minimization and Mitigation Measures Are Not
Practicable
9.5.3 The Burden of Proving Maximum Extent Practicable
9.5.4 Services Conduct an Independent Analysis of Practicability
9.5.5 Services Demonstration of Maximum Extent Practicable

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9.6

Providing for Changed Circumstances
9.6.1 Changed Circumstances
9.6.2 Unforeseen Circumstances
9.6.3 Steps to Identify and Plan for Changed and Unforeseen Circumstances
9.6.4 Differentiating Between a Changed and an Unforeseen Circumstance
9.6.5 Determining Changed vs. Unforeseen Circumstances
9.6.6 NEPA and Changed Circumstances
9.6.7 Considering Climate Change Effects in Changed Circumstances
9.6.8 Timing of Changed Circumstances
9.6.9 Information Needs for Changed and Unforeseen Circumstances
9.6.10 No Surprises and Changed Circumstances
9.7
Considering Climate Change
______________________________________________________________________________
9.0 Introduction
The conservation strategy of a habitat conservation plan is the foundation upon which the rest of
the HCP is built. The conservation strategy defines what the HCP is trying to accomplish through
biological goals, how the applicant will track progress through the monitoring program, and how
the applicant will adjust implementation of the HCP through adaptive management and changed
circumstances. The conservation strategy must be founded on the biological needs of species, a
structured and logical approach to problem solving, forward thinking to anticipate future
changes, and it must be developed to fit into the larger conservation context occurring around the
HCP.
An applicant should consider the amount and degree of uncertainty in the HCP when developing
goals, objectives, and conservation measures. For example, a complicated HCP with a high
degree of uncertainty should have goals and objectives that account for that uncertainty while
still being protective of species and meeting the issuance criteria. On the other hand, a simple
and straightforward HCP, with little uncertainty, may not need to have in-depth goals and
objectives, and may need to account for uncertainty to a much smaller degree, if at all.
Because of the dual nature of HCPs (providing both an avenue for activities that may impact
species and an avenue to implement conservation of species) the applicant must consider how the
proposed covered activities affect conservation. Applicants should consider adjusting the
proposed covered activities to avoid as many impacts as possible, while those impacts that
cannot be avoided should be minimized through best management practices, and consider other
mitigation activities. In addition to offsetting the impacts of the taking, applicants should be
encouraged to provide conservation actions that will contribute to the long-term conservation of
the covered species. Ultimately, the applicant must develop a conservation program that includes
both minimization and mitigation measures in a manner that fully offsets the impacts of the
taking.
The November 3, 2015, Presidential memo regarding mitigation (80 FR 68743) (see the HCP
Handbook Toolbox) sets goals for federal agencies “to leave America's natural resources in
better condition than when we inherited them.” To summarize the relevant practices that are
addressed in the memo:
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“Section 1. Policy. It shall be the policy of the Departments of Defense, the Interior... to
avoid and then minimize harmful effects to land, water, wildlife, and other ecological
resources (natural resources) caused by land- or water-disturbing activities, and to ensure
that any remaining harmful effects are effectively addressed, consistent with existing
mission and legal authorities…
Large-scale plans and analysis should inform the identification of areas where
development may be most appropriate, where high natural resource values result in the
best locations for protection and restoration, or where natural resource values are
irreplaceable.”
Section 2. Definitions. For the purposes of this memorandum:
(f) "Mitigation" means avoiding, minimizing, rectifying, reducing over time, and
compensating for impacts on natural resources... These three actions are generally applied
sequentially, and therefore compensatory measures should normally not be considered
until after all appropriate and practicable avoidance and minimization measures have
been considered.
Section 3. Establishing Federal Principles for Mitigation.
(b) Agencies' mitigation policies should establish a net benefit goal or, at a minimum, a
no net loss goal for natural resources the agency manages that are important, scarce, or
sensitive, or wherever doing so is consistent with agency mission and established natural
resource objectives. When a resource's value is determined to be irreplaceable, the
preferred means of achieving either of these goals is through avoidance, consistent with
applicable legal authorities…”
The goal of every HCP should be to fully offset the impacts of take, and every HCP must
minimize and mitigate the impacts of take to the maximum extent practicable. The HCP planning
process can be used to develop plans that enhance connectivity and protect larger blocks of land
that have value beyond the acres protected: these areas can be large enough to sustain species,
and/or can connect areas needed to maintain genetic diversity and sustain metapopulation
dynamics. For example, larger scale plans can provide a landscape scale conservation vision and
programmatic approach which can confer a net benefit to conservation by their scale and
strategic approach to conservation design. Likewise, small scale plans can contribute to larger
conservation design by adding to existing protected land or by protecting key linkage areas.
The discussion on developing the conservation strategy of HCPs will be framed around the tenets
of Strategic Habitat Conservation (SHC): a general approach to thoughtful conservation. The
FWS adopted Strategic Habitat Conservation – a landscape-scale, collaboratively oriented
framework in 2005. Strategic Habitat Conservation represents a strategic, accountable and
adaptive approach to conservation. It starts by working at larger spatial and temporal scales,
across programs and with our partners and stakeholders, in a more focused way that links our
actions to outcomes, with learning as an explicit objective of our conservation actions (see the
HCP Handbook Toolbox). As with SHC, keys to developing a successful conservation strategy
are:

9-3

1.
2.
3.
4.

having an integrated framework to develop biological goals and objectives,
developing a monitoring framework to measure results,
developing an evaluation process to assess results, and
outlining a systematic learning process to use what will be learned to improve future
decisions.
Figure 9.0a: Strategic Habitat Conservation

9.1 HCP Biological Goals
HCPs are but one conservation tool implementing conservation across different geographies at
different sizes and scales. Development of the conservation strategy, including its goals, should
be framed within this broader wildlife conservation context. HCP goals are built on the
foundation of broader conservation efforts occurring at larger scales. Building upon the existing
hierarchy of goals and purposes will improve conservation of species by allowing even modest
implementation efforts to contribute to something bigger. See figure 9.1e.

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Figure 9.1e: Hierarchy of Goals and Purposes

By framing HCP goals within the context of larger conservation efforts it should become clear
how the HCP may:
● affect recovery of species,
● further progress on large scale planning efforts like Landscape Conservation
Cooperatives (LCCs) and State Wildlife Action Plans,
● help build more resilience and adaptive capacity for species to withstand future climatic
change,
● help protect large scale migration or movement corridors.
Helpful Hint: Consistent with agency policies and the use of the best available science, we integrate
adaptation strategies for climate change effects into our planning, programs, and operations. As goals
and objectives are developed we must ask if they are still attainable given the projected down-scaled
effects of climate change in the HCP plan area. For example, the Climate-Smart Conservation guide
calls for developing an initial set of goals through the lens of assessing climate impacts and
vulnerability, and reviewing/revising conservation goals as needed. (See also section 9.3.2, below.)

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Biological goals broadly describe the desired future conditions of an HCP in succinct statements.
Each goal steps down to one or more objectives that define how to achieve these conditions in
measurable terms. A well-written goal directs work toward achieving the vision and purpose of
an HCP.
It takes careful thought to develop productive and meaningful goals, and it is a critical step. In a
few concise statements, goals comprise the HCP’s effort in pursuit of its vision and lay the
foundation from which all conservation activities arise. Management activities result from goals,
and not the other way around. Goals must be developed before developing objectives and
conservation measures to orient management direction, both during plan development and
throughout implementation.
Ideally, the applicant should develop HCP goals and objectives in close coordination with the
Services as they are the foundation upon which the HCP is built. An excellent resource on
developing goals and objectives is the FWS’s document: “Writing Refuge Management Goals
and Objectives: A Handbook” (see the HCP Handbook Toolbox).
Goals and objectives guide management actions taken for an HCP to meet its conservation
vision. Well-developed goals and objectives are key in focusing actions to efficiently and
effectively manage the landscape to achieve the desired condition and to ultimately conserve
species.
The first consideration when developing biological goals and objectives for an HCP is the scale
of the plan. A biological goal for a small HCP (e.g., a single family residence) may be obvious (a
well-known recovery plan objective) and simple – contributing to conservation. For example, a
goal may be to contribute to the conservation of the covered species by either leaving and
protecting (with a conservation easement in perpetuity) 8 acres of a 10-acre property in its
natural state for the species or by purchasing the appropriate number of credits from a
conservation bank before clearing and construction begins (objectives). Goals and objectives for
a bigger HCP will likely require more consideration.
When developing biological goals and objectives, use existing conservation information to guide
them, like: species recovery plans or outlines, 5 year status reviews, spotlight species actions
plans, State Wildlife Action Plans, species status assessments, candidate conservation plans, and
any other existing documents with conservation strategies for the covered species that are the
best scientific information available. These plans often evaluate species’ status and make
recommendations about what it will take to get the population to a desired condition. To develop
the most effective goals and objectives, relevant expertise (e.g., species experts, listing/recovery
team members, climate change specialists, and State wildlife agencies) should be sought and
included in their development.
The development of vision statements, goals, and objectives is iterative, and they may need to
change during the HCP development process as the plan changes or as new information becomes
available. However, it is critical that you initiate the process at the beginning and preserve the
hierarchical nature of the relationship. It is important not to choose measures without objectives,
develop objectives without goals, or establish goals without first articulating a vision for the
HCP’s conservation program. Building from the hierarchy of purpose and goals will allow you to
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identify existing and future efforts that may need to be refocused or eliminated. Figure 9.1a
shows the relationship between goals, objectives, and measures.
Figure 9.1a: Biological Goals and Objectives

9.1.1 Developing Useful Goals and Objectives
The applicant and the Services should collaborate to develop goals. These goals serve as the
foundation of the conservation strategy and should be used to guide how the rest of the plan is
developed and implemented.
Goals must:
● broadly state desired future condition,
● be descriptive, and
● be clear and understandable to all, not just to those at the table developing them.
Figure 9.1b serves as a guide for developing and assessing biological goals. Each biological goal
should contain these four elements:
1. the key subject of concern (e.g., a particular species or guild, a biotic community, or a
habitat type);
2. the attribute of interest for that subject (e.g., population size, physical area covered,
species composition);
3. the target or condition for the attribute (e.g., a number, period of time, historic
condition). In selecting this, keep climate change effects in mind, since depending on the
situation and timeframe for the HCP, it may or may not make sense for the target to
involve the historic range of variability or existing conditions; and
4. the action or effort (e.g., restore, provide) that will be made to achieve the target.

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Figure 9.1b: Four Elements of a Biological Goal

HCP goals should address the broad biological needs of the species. They can be focused on a
number of species needs or reducing threats, such as:
● maintaining a specific species life history characteristic,
● providing conditions necessary for an important life history characteristic, or
● restoring something to historic or more desirable conditions, or establishing desirable
conditions that facilitate transformation in response to effects of climate change or other
stressors that cannot be addressed using traditional restoration approaches
All of these examples should be based on the specific needs of species in the plan area, but
contribute to broader species needs.
These goals need to be forward thinking and “truthed” with a reasonableness of likely future
climatic conditions. Depending on the local situation and time period covered, future-oriented
goals can vary along a continuum from managing for persistence to managing for transformation,
and shift over time from persistence to transformation. With climate change effects in mind, are
the goals still achievable? If not, consider adjusting them to make them achievable with future
climatic conditions in mind.
Example Goals:
Example goal 1: Bogus Bat: self-sustaining population of bogus bats in the preserve system that
can withstand threats, is genetically representative of neighboring populations, and contributes to
the overall recovery of the species.
Example goal 2: Swamp habitat: hydrologic integrity of the Mucky Swamp within the natural
state of variability and function maintained within future climatic constraints.
9.1.1.1 Habitat-Based Goals vs. Species-Based Goals
HCPs that use habitat as a surrogate for species impacts can express conservation goals in terms
of habitat area trends (objectives), but there must be an established correlation between species
numbers, reproduction, and/or distribution and its habitat. In addition, there must be some way to
reliably determine how effective the mitigation is for covered species.
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For example: a species based goal might set specific population or life history targets for a
covered species, such as percent of nestlings fledged or over-winter survival. In a habitat-based
approach, the goal would be based on protecting, restoring, and establishing a specific type or
amount of habitat for a covered species. In the case of the habitat based goal, the connection
between habitat and covered species is really important to understand. Usually, protecting
unoccupied habitat for a covered species does little for the species, however protecting a corridor
that connects two important habitats can be important for the species’ conservation.
Example habitat-based goal:
Goal: Maintain and enhance functional grassland communities that benefit covered
species and promote native biodiversity.
Goal: Improve the quality of streams and the hydrologic and geomorphic processes that
support them to maintain a functional aquatic and riparian community to benefit covered
species and promote native biodiversity.
Goal: Maintain a functional riparian forest and scrub community at a variety of
successional stages and improve these communities to benefit covered species and
promote native biodiversity.
Considerations for inclusion with or as goals:
●
●
●
●

building in fire resiliency for an area and covered species affected by increased fire
connectivity to important habitat or populations
climatic refugia for climate sensitive species/habitats
building in resilience to extreme changing conditions (e.g. vegetative buffers against
storm surge, restoration to stabilize habitat prone to flooding, etc.)

Example species-based goal:
Goal: Swainson’s hawk: maintain or increase population size and distribution of
Swainson’s hawk in the inventory area
Goal: foothill yellow-legged frog: protect, maintain, or increase populations of foothill
yellow-legged frog
9.1.2 Responsibility for Developing Biological Goals and Objectives
Development of goals and objectives should be done jointly with the Services and the applicant.
Field Office staff should be involved and engaged in the process to develop goals and objectives
as the goals and objectives will be used to guide development of the entire plan.

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9.1.3 When to Develop Goals and Objectives
Once the applicant and the Services have completed the ‘Getting Started Questionnaire’ or
similar guiding document, they should start developing the hierarchy of goals and purposes.
Maintaining the order of the hierarchy is important in building a strong foundation for the HCP.
9.1.4 Number of Biological Goals
There must be sufficient specificity in the articulated goals to guide the conservation strategy
development and implementation. In some cases, goals will be needed for each covered species.
In other cases, groups of covered species can fall under the umbrella of a single goal. Each plan
will be different.
9.2 Biological Objectives
Objectives are the incremental steps taken to achieve a goal. Objectives are derived from goals,
and they provide a foundation for determining conservation measures, monitoring direction, and
evaluating effectiveness of the conservation strategy. The number of objectives per goal will
vary, but there should be enough to adequately describe how to achieve the goal. An
implementation schedule may be beneficial if a goal has several objectives.
9.2.1 SMART
SMART is an important acronym for reminding us of the essential elements of a good objective.
Objectives need to be:
●
●
●
●
●

Specific
Measurable
Achievable
Result-oriented
Time-fixed

Specific: Objectives must clearly articulate what is to be achieved. Avoid ambiguity by phrasing
objectives clearly. A clearly phrased objective is easy to understand and the meaning is difficult
to misinterpret. Be as specific as possible. WHO will do the action? WHAT will they do?
WHEN and WHERE will they do it? Avoid phrases that are subject to interpretation, like
“maintain high-quality habitat.” “High-quality habitat” can be interpreted in many ways.
Measurable: Objectives should contain a measurable element that we can readily monitor to
determine success or failure. First ask, “What would we monitor to assess progress toward
achieving this objective?” Then ask, “How do we quantify it?” For example, to determine
progress toward “high-quality habitat,” identify what defines “high quality.” That may mean
having certain plant community composition, vegetative structure and density. Then to further
define “high quality habitat,” quantify each component. In this example, you might list the
desired proportion of each plant species, the height of a plant type, and number of individuals in
a specified unit of area. The nature of the measurable element may vary, as might the difficulty
in measuring it. Still, you must have something to indicate progress. While evaluating a water
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depth objective may only require gauge readings, monitoring a component of vegetative
structure may require systematic surveys of vegetation density or composition.
Achievable: Objectives must be achievable. If you cannot determine how to achieve an
objective, you must discard or rewrite it. Do not ask more of the land or wildlife than it can
deliver, and use sound professional judgment to develop reasonable expectations of time, staff,
and funds available to pursue the objective. Goal and objective development should be based on
biological needs for meeting the permit issuance criteria and insulated from other pressures.
Result-oriented: Objectives should specify an end result. For example, a habitat objective that is
result-oriented will provide a detailed description of the desired habitat conditions expected. We
should be able to envision the result of achieving the objective.
Time-fixed: Objectives should indicate the time period during which they will be achieved, and
not to be open-ended. It is acceptable to include a range of completion dates to provide some
degree of flexibility. Consider developing an implementation schedule for objectives or
strategies, perhaps in 5-year increments.
The development of conceptual models to lay out hypotheses for how the ecosystem works and
what the relationship is between species and threats can be extremely helpful in linking
objectives to species needs. See Table 9.3a below for examples.
Examples of objectives:
Example goal 1: Bogus Bat: self-sustaining population of bogus bats in the preserve system that
can withstand threats, is genetically representative of neighboring populations, and contributes to
the overall recovery of the species.
Objective 1: Preserve 50% of hibernacula and all maternity roosts of the bogus bat, in the
plan area during the permit term
Objective 2: Enhance roosting habitat by protecting and restoring any abandoned mine,
cave, or building in the Preserve System and, if feasible, creating 5 artificial hibernacula
during the permit term.
Example goal 2: Swamp habitat: hydrologic integrity of the Mucky Swamp within the natural
state of variability and function maintained within future climatic constraints.
Objective 1: preserve all area within 2500 feet of the 1900 high water line of Mucky
swamp within 10 years of permit issuance through conservation easements and
acquisition in fee title.
Objective 2: restore historic contours and elevations of Mucky swamp to increase
retention and infill of sediment within 3 years of land preservation.
Objective 3: restore vegetation to historical conditions on preserved lands to increase
infill into the Mucky Swamp from Stinky Creek and Curvey Creek within 20 years of
permit issuance.

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9.2.2 Considering Climate Change Effects in the Development of Goals and
Objectives
It is important to consider climate change effects while developing biological goals; an excellent
resource is Climate-Smart Conservation: Putting Adaptation Principles into Practice, (see the
HCP Handbook Toolbox).
There are different ways climate change may affect the process of developing goals and
objectives, but the key is to make sure the goals and objectives are evaluated with the effects of
climate change in mind. The approach taken will vary depending on local conditions, the
geographic scope and time period covered by an HCP, and the nature and extent of projected
climate change and related impacts in relation to the climate sensitivity of the species and its
habitat. The ways that climate changes and related effects can interact with other stressors (e.g.,
habitat fragmentation, spread of invasive species, risk of wildfire) also may be important in some
situations (Chapter 8.2.1). Rely on the best available science on the likely impacts and responses
of species and habitat to effects of climate change. If such science is lacking, consider resources
that are available to conduct assessments necessary to help make better decisions about selecting
goals and objectives.
Consider asking questions like the ones below during the development of goals and objectives:
● How might effects of climate change affect the likelihood of success in achieving goals
and objectives? Are they achievable with such effects in mind?
● Are there already assessments of climate change effects, or climate change projections
associated with the species, habitats, or communities affected by the HCP?
● What can be done to increase the likelihood of success given the expected effects of
climate changes?
● Are the goals and objectives forward thinking in that they anticipate changing conditions?
● Which management tools may be affected by climate change? Are they all still
appropriate with the expected effects of climate change?
The absence of detailed, climate change specific information on climate change is not a
sufficient reason to ignore consideration of potential effects of climate change. Available
information is usually sufficient to at least start evaluating whether or how species and habitat
are sensitive to climatic variables. For example, a covered trout species that relies on cold water
for many stages of its life cycle may be in an area where unsuitably warmer water temperatures
are expected; this could lead to an objective for managing streamside conditions that will help
retain suitable water temperatures.
9.3 Conservation Measures
Conservation measures describe the specific actions that the permittee will implement to achieve
the objectives in support of the HCPs goals. There may be multiple conservation measures
associated with each objective. Conservation measures can be any of the avoidance,
minimization, or mitigation actions taken to meet the goals and objectives of the HCP.

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Conservation measures can take many forms, but in all cases must be based on the biological
needs of covered species. HCPs often combine these measures to meet the needs of species.
Conservation measures implemented in HCPs usually take one of the following forms:
●
●
●
●

avoiding the impact through project design
minimizing the impact through best management practices
minimizing the impacts of the taking by reducing or eliminating other threats
mitigating (offsetting) impacts, by:
a. restoration of degraded habitat
b. enhancement of functional habitat
c. preservation of habitat
d. creation of new habitat
e. translocating or repatriating species
9.3.1 Avoidance

Avoidance of take of individuals or habitat is an important component of HCPs. Avoidance
generally occurs by siting and designing the project in a way that avoids impacts to covered
species. Avoidance should be the first step in minimizing project impacts on covered species. In
some instances, it may be possible to avoid all project impacts so there is no need to develop an
HCP. Conducting surveys prior to implementation of a covered activity helps to determine where
the species or important habitat elements occur. These surveys provide valuable information so
implementation of covered activities can be modified to avoid or minimize effects that could not
have been done without the survey information.
Examples of avoidance measures include:
Seasonal Restrictions: If the species or important habitat elements are present, the applicant may
restrict covered activities during specific times of year to minimize impacts to individuals or
habitat elements. Such seasonal restrictions may occur during courtship, nesting, fledging,
dispersal, or migration periods. Restrictions may also minimize impacts to forage resources, such
as during the blooming or fruiting period of an important food source.
Reduction of the Extent of the Covered Activity: An applicant may reduce the extent of the
covered activity to avoid the effects of the activity. For example, reducing the density of
development, or not developing a portion of the project that contains an important habitat
element may avoid the impacts of the taking from that project.
9.3.2 Minimization
Minimization measures are actions that will reduce the impacts of the taking that have been
identified during the development of the HCP.

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Examples of minimization measures include:
Establishment of Buffer Zones: Applicants may minimize impacts from covered activities by
establishing adequate buffers around occupied areas (e.g., nest sites, dens, riparian areas, etc.) or
around important habitat elements (e.g., caves, burrows, cavities, limited forage resources, etc).
Maintenance of Habitat Connectivity: If a covered activity is proposed in or adjacent to large
areas of important species habitat and the proposed activity would increase fragmentation of that
habitat, the maintenance of habitat linkages is important to facilitate the use and movement of
individuals moving between populations. Movement of individuals between populations will
help preserve genetic diversity. Also, since individuals of many species adjust their geographic
ranges to track shifting areas of climatic suitability (culminating in range shifts for the species as
a whole), providing habitat connectivity with climate corridors in mind may be an important
consideration for some HCPs.
9.3.3 Mitigation
Mitigation measures in the HCP must be based on the biological needs of covered species and
should be designed to offset the impacts of the take from the covered activities to the maximum
extent practicable. Some of the major categories of mitigation measures frequently found in
HCPs are:
● restoration of degraded habitat to natural condition/function, or to a condition likely to be
resilient to projected changes (e.g., in response to ongoing and projected climate change
effects)
● land preservation (e.g., buy and protect, place conservation easements on land) of areas
threatened by development
● enhancement of habitat (e.g., increase specific function of habitat)
● creation of new habitat or new populations
● threat reduction or elimination (e.g., management of non- native species)
● translocation of affected individuals or family groups to establish new or augment
existing populations
● repatriation of species (or important resources) to formerly occupied and still suitable or
enhanced habitat
These measures are often combined to meet biological goals.
When thinking about offsetting the impacts of the taking, the duration of the outcome of the
mitigation measures should be considered. The necessary duration of the mitigation outcome
should be based on the biological value of what is lost. There are a couple considerations:
● If habitat will be permanently lost, alternative habitat must be protected in perpetuity to
offset the loss and the appropriate habitat conditions at the mitigation site must be
maintained in perpetuity.
● If the temporary loss of habitat has long-term consequences to the species that uses that
habitat, then the mitigation must account for the long-term consequences. Some species

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are more susceptible to temporal impacts, which must be accounted for in the plan. In this
case, additional or permanent mitigation may be required to offset impacts.
9.3.3.1 Restoration of Degraded Habitat
Restoration is focused on returning habitat to its natural or historic state. Restoration may be reestablishment of a former resource or improvement of a degraded resource to natural and/or
historic structure and function. Restoration goals and objectives may need considerations for
maintaining the desired functional state through projected effects of climate change, even though
it may involve different habitat components (e.g., different composition of plant species) than
were present in the past. Restored habitat should be protected through legal mechanisms
discussed below in 9.4.3.2 Land Preservation.
9.3.3.2 Land Preservation
Land preservation is a mechanism for preventing the impacts of development threats to covered
species and their habitats on a particular property. If the preserved number of acres is the same as
the impacted acres, it does not result in a net gain in acreage, but protects what is already
occupied and functional (unless other management actions will increase conservation value of
the land preserved). Typically, land preservation in HCPs takes three forms:
● land set-asides within the permit/HCP area that are protected and managed for the
species’ benefit, followed by recording a conservation easement on that portion of the
permit area;
● purchase of land specifically for HCP conservation, followed by recording a permanent
conservation easement on that land and permanent management for the species’ benefit,
and
● permanent conservation easements placed on lands not owned by the permittee, but
through the easement, the landowner agrees to manage the land for the purposes of
conservation.
To manage and monitor the land being preserved, funds are needed to ensure they maintain their
biological value. Preserved lands should either have their own management plans or follow the
HCP if it is specific enough.
Applicants must ensure sufficient control of the land to achieve mitigation objectives. The land
preservation tool is important in making sure those objectives are met. To express this, consider
all the resources in the area: access rights, mineral rights, hunting rights, water rights, cropping
rights, etc. Which resources need to be protected to ensure that HCP goals and objectives will be
met? If water quality is critical to the success of the mitigation project, yet acquisition of the
mitigation property would have little effect on the quality of water entering the property (e.g.,
from the neighboring land), then the applicant should acquire enough of an interest in the
neighboring land to safeguard the quality of water entering the mitigation land. Are there
existing easements that could affect a conservation easement or the ability to protect wildlife? If
there are existing easements that will affect conservation, the applicant may need to conduct
some alternate form of mitigation to offset their impacts.

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If a land preservation tool does not achieve mitigation objectives, then the land cannot be
credited toward meeting mitigation obligations until it meets the stated purpose. Even if the land
is sufficiently protected from development threats, it must be managed in a way that is
compatible with the mitigation objectives per the HCP in order to count toward meeting the
stated purpose.
When developing a conservation easement, make sure to:
● build in flexible management options that can change through time to continue to meet
species needs;
● include access for monitoring in the easement. Right of access means Services staff, or
other persons we designate, evaluate whether easement restrictions are being adhered to
(50 CFR 13.47);
● right to enforce easement restrictions by the appropriate parties;
● have legal counsel/solicitor help develop and review the conservation easement;
● start with the correct State-specific conservation easement template;
● ensure that the easement is granted only to an entity allowed under State law to hold
conservation easements;
● accurately delineate in the field all conservation easement boundaries and provide a legal
description;
● list allowable actions on the property;
● list prohibited actions that would be incompatible with the mitigation property’s primary
function as habitat for species.
● If sub-surface mineral rights are severed, it is preferable that the surface property owner
negotiates a purchase of the mineral rights, or surface access to the minerals. If purchase
of the mineral rights are not feasible, and the mineral rights owner has access to the
surface, obtain a minerals assessment report (“remoteness letter”) to determine the
likelihood of minerals development before determining whether an easement on the
property would be acceptable for mitigation
● Identify ITP in the easement document as the legal basis for the conservation easement.
9.3.3.3 Creation of New Habitat
Sometimes creation of new habitat is the most biologically appropriate way to offset the impacts
of the taking from covered activities. Creation of new habitat is intended to develop a population
or habitat condition that did not previously exist on a site. Creation of new habitat can result in a
net gain in population or acreage. Creation involves the conversion of an area into useful and
beneficial habitat that did not previously exist. This approach may be particularly appropriate as
a climate change adaptation measure for areas where habitat transformation already is beginning
or is likely to occur due to climate change effects. For example, in some situations it may be
biologically appropriate to facilitate transformation to shrublands by replanting with scrub plants
rather than trees in response to increasing temperatures drought condition. Another example is
establishing new wetland or estuary habitat in coastal areas, slightly inland of current habitat that
is becoming submerged or eroded due to sea level rise and storm surge impacts.

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9.3.3.4 Habitat Enhancement
Habitat enhancement usually involves manipulation of the physical, chemical, or biological
characteristics of a resource and is intended to increase or improve specific habitat functions.
Manipulating one component of an ecosystem will sometimes cause other components of the
ecosystem to change: care is needed to understand how the ecosystem will change.
9.3.3.5 Threat Reduction or Elimination
This option includes removal or reduction of threats to improve the health of the system or
reduce direct effects on covered species. Non- native species may be the primary driver of
population declines for certain species. In these situations non-native removal can be an
extremely important part of the conservation strategy. Conceptual models (discussed in depth in
Chapter 10) can be used to help identify conservation measures to implement as part of the
conservation strategy. Threat reduction could also include: managing land to prevent certain
uses, protection of a historic hydrologic regime, fire management prescriptions, predator control,
resilience to increased drought, etc.
9.3.3.6 Translocation
Impacts to certain species can be mitigated by removing the affected individuals from a project
area and placing them into suitable protected habitat that has been enhanced or restored, as long
as that habitat is unoccupied, or under-utilized by the covered species. In the case of gopher and
desert tortoises, for example, the affected individuals are excavated and moved. In the case of
red-cockaded woodpeckers, fledgling young are removed once a year during a certain period and
moved to a new location so that a new nesting territory is established. In light of some climate
change effects, there are a number of conservation programs considering “assisted migration”
which involves moving individuals to cope with the effects of climate change. However, note
that not all species can be successfully translocated. Moving animals is a tool with many
implications and should be used sparingly.
9.3.3.7 Repatriation
If a species has been extirpated from an area, a permittee may work with the Services and State
wildlife agencies to reintroduce them if the habitat is still suitable, or suitability has been restored
and is expected to remain suitable.
9.3.4 Putting Goals, Objectives, and Conservation Measures Together
Well-written goals, objectives, and conservation measures should flow from general to specific
and should ultimately provide a clear vision for conserving species. The culmination of this
hierarchy is the conservation measures that will lay out the actions needed to meet the objectives.
See Table 9.4a where we continue the example used previously.

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Example goal 1: Bogus Bat: self-sustaining population of bogus bats in the preserve system that
can withstand threats, is genetically representative of neighboring populations, and contributes to
the overall recovery of the species.
Objective 1: Preserve 50% of hibernacula and all maternity roosts of the bogus bat, in the
plan area during the permit term
Measure 1: acquire property x, y, z following the HCP conservation
implementation schedule
Measure 2: place conservation easements on property a,b,c following the HCP
conservation implementation schedule
Objective 2: Enhance or restore roosting habitat in abandoned mines, caves, trees, or
building in the Preserve System and, if possible, create artificial hibernacula
Measure 1: enhance sites 1, 2, 3 by improving vegetative sheltering or by
modifying lighting at existing structures to improve roosting habitat to naturally
functioning levels
Measure 2: create artificial habitat at sites 4, 5, 6 to increase the quantity of
hibernacula sites
Example goal 2: Swamp habitat: hydrologic integrity of the Mucky Swamp within the natural
state of variability and function maintained within future climatic constraints.
Objective 1: preserve all area within 2500 feet of the 1900 high water line of Mucky
swamp within 10 years of permit issuance
Measure 1: acquire property x, y, z following the HCP conservation
implementation schedule
Measure 2: place conservation easements on property a,b,c following the HCP
conservation implementation schedule
Objective 2: restore historic contours and elevations of Mucky swamp to increase
retention and infill within 3 years of land preservation
Measure 1: using mechanical means, regrade and resurface the contours and
elevation of mucky swamp to match historic elevation data
Objective 3: restore vegetation on preserved lands to increase infill into the Mucky
Swamp from Stinky Creek and Curvy Creek within 20 years of permit issuance.
Measure 1: with the assistance of botanists, revegetate the preserved area around
mucky swamp to match historic density and diversity of appropriate plants,
shrubs, and trees to stabilize soils and restore hydrologic condition to historic
levels
How complex the plan is will dictate how many and how detailed the goals/objectives/measures
hierarchy needs to be.

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9.3.5 How Much Minimization Compared to Mitigation?
The applicant decides during the HCP development phase what conservation measures to include
in the HCP, often in light of discussions with and recommendations from the Services. In many
cases, the Services recommend following a sequential approach where the initial effort should be
to determine whether impacts of the proposed project can be avoided, then minimize unavoidable
impacts, and finally mitigate for the remaining impacts. Based on the specific project details, and
in concert with the biological needs of the affected species, the conservation program should
include an appropriate level of minimization and mitigation to achieve the best biological
outcome for the covered species. Often, minimization provides the best biological outcome for
the covered species, particularly when the impacts of take pose a significant risk to the species
status and probability of offsetting those impacts is low. For example: for projects that will result
in mortality of long-lived species with low recruitment potential to the population, minimizing
take to the maximum extent practicable may be most appropriate.
However, there are also circumstances where mitigation with little or no minimization may
provide more of a benefit to the species, as when a small-scale HCP for a single family residence
may have few if any opportunities to provide minimization measures that will provide a practical
benefit to the covered species, so participating in a larger-scale mitigation program, such as a
conservation bank may be preferable. A clear tipping point of whether more minimization is
warranted versus more mitigation is warranted is when additional minimization measures offer
only diminishing (insubstantial) returns in addressing the impacts of the take. In which case, the
conservation strategy would turn to mitigation to offset the remaining impacts of the taking. If
the benefits of the mitigation measures are uncertain or cannot be demonstrated to offset the
impacts, then additional minimization measures may be warranted to further reduce the impacts
of the take. In summary, to meet the issuance criterion, the applicant must develop a
conservation program that includes both minimization and mitigation measures in a manner that
offsets the impacts of the taking to the maximum extent practicable.
9.4 Mitigation Implementation
Who does the mitigation? There are a few general ways responsibility for mitigation
implementation can be approached:
●
●
●

permittee-implemented mitigation or permittee responsible mitigation,
conservation banks, or
in-lieu fee mitigation.

In each of these, the permittee is responsible for meeting issuance criteria, which includes
insuring impacts of the taking are offset through implementation of mitigation.
9.4.1 Permittee-Implemented Mitigation
The applicant may use their own contractors, funding, and long-term management to provide
mitigation to offset incidental take. The permittee is responsible for the completion and success
of the required compensatory mitigation. Permittee-implemented mitigation may provide the
applicant with a management or economic advantage (e.g., could be less expensive than other
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options). Examples include an applicant hiring a vendor to take measures to augment populations
(i.e., to replace lost recruitment), or an applicant acquiring and directly managing land for the
benefit of covered species and to offset their impacts.
9.4.2 Conservation Banks
Conservation banks are sites, or suite of sites, established under a conservation bank instrument,
approved by the Services, that are conserved and managed to provide ecological functions and
services expressed as credits for specified ESA listed species, candidates for listing, or other atrisk species. Conservation banks restore, create, and enhance habitat and place land use
protections on it, so the biological value is protected in perpetuity. Standards and requirements
are species-specific, but generally the habitat:
●
●
●

is of high quality,
is occupied,
excludes developed areas or other areas that cannot be restored,
● restricts activities that would interfere with the function of the habitat for the
species the bank was created for, and
● is buffered from outside influences so the bank maintains ecological integrity.
Credits are based defined units representing the accrual or attainment of ecological functions
and/or services at the bank site (e.g., one credit for each acre of high quality habitat occupied by
the species) and released as the bank site meets the performance criteria. Permittees may
purchase the credits from the bank sponsor, with Services approval, to offset impacts of their
actions covered by an incidental take permit. Often additional land is included within the bank’s
boundary that is not credited when the bank is established, but may be credited after restoration
when habitat becomes suitable.
Conservation banks function to offset adverse impacts to a species that occurred elsewhere,
sometimes referred to as off-site mitigation. Developers or other project proponents who need to
compensate for the adverse impacts their projects have on species may purchase a designated
number of credits from conservation bank owners to mitigate their impacts, depending on the
conservation strategy for the species and mitigation ratios.
To approve an applicant’s purchase of credits from a bank, we must determine that the bank’s
management plan, management assurances, monitoring, and adaptive management measures will
meet the HCP’s conservation standards. Conversely, if there is an existing bank in an area where
an HCP is being developed, the HCP should strive to meet the same conservation standards and
approach to conservation as the bank. In accordance with Department of Interior policy (600 DM
6.7) (see the HCP Handbook Toolbox) all mechanisms for compensatory mitigation (e.g.,
conservation banks, in-lieu fee programs, permittee-responsible mitigation) used to offset
unavoidable impacts should be held to high and equivalent standards.
A bank’s service area that encompasses the HCP’s plan area will allow the bank to serve the
biological goals of the HCP. It may be helpful to look at the bank’s established management plan
and evaluate its measures as if they had been written into the applicant’s HCP. In a typical
applicant-banker transaction, the bank operator and bank property owner assumes the ongoing
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conservation obligations on behalf of the applicant. Once an applicant receives an incidental take
permit and closes a sales contract with a banker, we will, assuming all mitigation is handled
through a conservation bank, oversee the banker rather than the permittee to ensure the bank is
maintained and to coordinate circumstances that may change.
As the Services advise applicants developing programmatic HCPs, we should tell the applicant
about any existing conservation banks in the HCP’s plan area and encourage them to consider
purchasing credits from the banks into their HCP’s mitigation strategy. An applicant for a
programmatic HCP could choose to use banks as one of several mitigation options; they might
“buy out” the bank for their own use, or HCP applicants might choose to develop their own
conservation areas. Programmatic HCPs can complement conservation banks because they
facilitate individual landowner incidental take authority via certificates of inclusion. We should
encourage a complementary, cooperative relationship between applicants and bankers. The
Services encourages development and use of conservation banks as effective mitigation
mechanisms, and bankers rely upon the technical support of the Services when they make the
investment to establish a bank that satisfies our conservation banking standards. However,
Applicants for incidental take permits are not obligated to use conservation banks if they can
otherwise satisfy issuance criteria. While an applicant decides whether or not to use a
conservation bank in their HCP, the Services’ role is to assist them in making a well-informed
decision. Conservation banks are just one option that they can use to meet their mitigation needs.
There may be combined Clean Water Act mitigation banks and ESA conservation banks jointly
approved by the US Army Corps of Engineers and the FWS in areas where HCPs are proposed.
Wetland mitigation banks and in-lieu fee programs will be subject to requirements of the 2008
Compensatory Mitigation Rule for Clean Water Act section 404 permits (33 CFR Parts 325 and
332; 40 CFR Part 230). The inter-agency review teams overseeing implementation of wetland
mitigation banks or in-lieu fee programs are chaired by the US Army Corps of Engineers.
Coordination with the interagency review team will be needed to employ combined wetland and
ESA banks.
Conservation banks are protected in perpetuity by legally binding conservation bank instruments,
conservation easements, and endowments for long-term management that are consistent with
state laws. As promoted in the FWS’s ESA Compensatory Mitigation Policy, bank operators and
bank property owners are responsible should be held to the same standards for monitoring,
reporting, and adaptive management that are required for HCPs. Credit sales from conservation
banks often have a clause that releases the purchaser from future obligations or liabilities for
their mitigation, in which case the liabilities remain with the banker rather than the purchaser.
This is another reason purchasing bank credits to fulfill an HCP’s mitigation requirements can be
an advantage for the permittee over implementing a mitigation project on their own. The
permittee does not have to expend time and effort to protect and restore habitat, monitor for
success, or take steps to rectify any failures, because these responsibilities remain with the bank
operator and bank property owner.
Implementing small-scale and low-effect HCPs that require the permittee to acquire, restore, and
manage listed species habitat in perpetuity can be daunting and costly for the permittee who
often lacks the knowledge and experience to fulfill these responsibilities themselves. The ability
to purchase credits from a Service-approved conservation bank that has biological goals and
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objectives that are compatible with their HCP instead of implementing permittee-responsible
mitigation lifts this burden from the permittee and usually reduces their mitigation costs. In
addition, the use of conservation banks can add habitat to existing conserved lands to protect
larger blocks of habitat, which often has higher conservation value.
Applicants who are writing large-scale HCPs may also purchase credits from a conservation
bank, but because of the economy-of-scale, these applicants tend to develop their own land
protection and management infrastructure.
Additional information on conservation banks can be found in the HCP Handbook Toolbox.
9.4.3 In-Lieu-Fee Mitigation
In-lieu-fee mitigation occurs when a permittee provides funds to an in-lieu-fee sponsor, acting on
behalf of the permittee, instead of completing project-specific mitigation themselves or
purchasing credits from a mitigation bank. In-lieu fee mitigation typically involves the
restoration, establishment, enhancement, or preservation of natural resources and may consist of
a single project or a group of projects. The in-lieu fee program is responsible for the completion
and success of the compensatory mitigation associated with permits that provide funds to that
program. An in-lieu fee program instrument (similar to a conservation banking instrument)
governs the use and operation of an in-lieu fee program. Under an in-lieu-fee agreement, a
mitigation sponsor collects funds from an individual (or a number of individuals) who are
required to complete compensatory mitigation. The sponsor, under the ultimate supervision of
the permittee, directs the funds to one or a number of projects authorized by the instrument to
satisfy the permittees’ mitigation obligations. A failure of the sponsor to carry out the permittee’s
mitigation obligations is attributed to the permittee. Additional information on in-lieu fee
mitigation can be found in the HCP Handbook Toolbox.
In-lieu-fee mitigation can be effective, but there are potential pitfalls Services staff must be
aware of before agreeing to this type of mitigation for a particular HCP. If the funds paid to a
sponsor do not result in on-the-ground conservation in advance or contemporaneously with
impacts, there could be temporal impacts to the species and there is the possibility that the
mitigation may not occur. Therefore, development of an in-lieu fee program agreement must be
carefully crafted as a safety net for the species. The agreement should be time-limited. If the
sponsor cannot get conservation on-the-ground according to the agreement, the sponsor must
report this to the permittee and to the Services immediately. If the agreed-upon conservation
cannot be accomplished in a timely fashion, the permittee may have to pay additional fees to
offset those temporal impacts. In the case of the Natomas Basin HCP, a 200-acre cushion of
mitigation must be in place before additional impacts are authorized. If the conservation cannot
be accomplished because there are no suitable lands to purchase, the applicant must use another
mitigation method. The process to resolve this situation must be memorialized in the HCP and
IA.
Usage of in-lieu-fee varies across the nation: check with your Regional HCP Coordinator before
proposing this to applicants.

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9.4.4 Dealing with Uncertainty in Goals, Objectives, and Conservation Measures
The development of an HCP’s conservation program, including goals and objectives, is based on
assumptions using current understanding. Conceptual models articulate this understanding by
depicting the hypothesized relationships between species populations, habitat conditions, and
various biotic and abiotic variables that are of known or presumed importance to the
conservation target. Because even simple models can identify multiple potential threats and
stressors to the conservation target, one of the reasons to develop a conceptual model is to help
identify SMART objectives and prioritize where to focus management actions based on the
hypothesized strength of those relationships. We then monitor and analyze data to validate the
efficacy of those actions at achieving plan goals. When implementing the HCP, it may become
necessary to change objectives and measures to best achieve conservation biological goals and
offset the impacts of the taking. This is not a task to be taken lightly in the regulatory context of
HCPs, where permittees are held accountable for achieving goals and objectives. If the ability to
make future changes to the plan’s objectives and measures is deemed prudent, it should be built
into the HCP to stay consistent with No Surprises assurances. Likewise, changes to the measures
needed to accomplish goals and objectives need not require a plan amendment, so long as this
option is built into the plan. Potential changes to implementation of the plan should be built in
into the plan’s operating conservation program or, where specific foreseeable events or
circumstances could trigger a need to modify the plan, addressed through the changed
circumstances provisions in the HCP. It is important to make sure expectations are clear in the
HCP about how changes will be made.
If the plan needs to be changed, we need to consider updates to effects analyses. If the proposed
changes are within the scope of what has already been analyzed, the changes may be fine and not
require updating analyses. If the effects of the changes are outside of what has already been
analyzed, updates to the analyses may be needed. See Table 9.5a and Chapter 17.4.
Table 9.4a: Summary of Changes to Goals and Objectives and Amendment Requirements
what to change

plan amendment required?

biological goals

yes, in all cases

biological objectives

yes, unless built into the plan

conservation measures

no, should be specified in the plan to meet the
same goals and objectives without causing
additional take. Approval process must be
spelled out.

Note: changes to the HCP that result in physical changes to the environment that were not
addressed in the original analyses may trigger updates to NEPA/BO/Findings documents (see
Chapter 17.4).

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9.4.5 Determining Location for Mitigation Projects
Permittees can use on-site mitigation when opportunities for offsetting the impacts occur in very
close proximity to the covered activities (typically on the same parcel). On-site mitigation may
include restoration of disturbed areas temporarily impacted by covered activities (e.g.,
revegetation of equipment staging areas), best management practices for recurring activities, or
operation standards for development in habitat used by the covered species (i.e., feral pet
control). Connectivity to other conservation lands (i.e., the need to avoid isolated populations)
may override the possible value of on-site measures which may be important in situations where
a species is expected to undergo a range shift in response to climate change. The applicant would
normally be expected to retain ownership of the on-site mitigation areas. Regardless of
ownership, mitigation assurances must be provided by deed restrictions or easements, as
appropriate, or by other legally acceptable mechanisms.
Off-site mitigation is when the permittee implements conservation (mitigation) measures away
from the impact site. Off-site mitigation may be preferred when:
● it is better for the species,
● there are not opportunities to mitigate on-site,
● it is easier to buy credits at a bank.
Off-site mitigation should in most cases be connected to the impacts, and the populations
impacted, in order to offset the impacts of the taking, i.e., the mitigation should be in the area
where it will ensure conservation offset is applied to the population impacted. Finding the
balance of proximity of conservation to proximity of impacts is done on a case-by-case basis, but
in each case must ultimately offset the impacts of the taking.
In limited cases, it may be appropriate to mitigate off-site in an area that is not close in proximity
to the impacts. For example: if the impacted population is considered secure in status, applying
the mitigation to a nearby off-site population may provide more benefit to the species. Another
example: if applying the mitigation onsite protects isolated habitat it may be more beneficial to
the species to apply the mitigation in an area of contiguous habitat that is off-site.
Figure 9.5a: Illustration of On-site Versus Off-site Mitigation

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9.4.6 Planning for Inflation
HCPs must plan for today’s and future costs. How much will it cost to do the same activities
over the life of a permit that may be for 20 years? Generally, inflation is factored into plan costs:
for fee-based plans, provisions are included to ensure fees are reevaluated periodically to ensure
they are adequate to meet plan implementation costs. Adjustment of fees in accordance with a
standard inflation index is typically required where fees will be collected over time to implement
the HCP. Where the plan involves land acquisition it is particularly important to include
provisions requiring periodic reassessments of land acquisition costs and corresponding fee
adjustments to ensure that the fees necessary to implement the plan are collected. Similarly the
costs of land management and services may also change at a rate that differs from overall
inflation changes. The HCP should include a requirement for periodic adjustment to fees to
ensure adequate funding to implement the plan is maintained over time.
For example, the Florida scrub-jay general conservation plan has periodic adjustments to the inlieu fee based on State data on agricultural land values. The Natomas Basin HCP also requires
periodic reviews and adjustments to fee components to account for changes in land
values/acquisition costs, management costs, and to meet endowment requirements. Another
example is the Alabama Beach Mouse HCP, where they built in management fee adjustments for
homeowner/condo association requirements in anticipation of rising costs of HCP
implementation.
9.4.7 Conservation Design
The following principles of conservation design are all useful to consider when developing and
acquiring a preserve system in an HCP.
● Buffer urban areas: These areas protect preserve land from the impacts of nearby urban
areas. The size of the buffer depends on topography, the intensity of adjacent urban
development, the natural community being separated from the development, the
condition of the buffer lands, and whether covered species are or will be present in the
area.
● Ecological diversity: The preserved land should include ecological diversity (e.g.,
species composition, dominant species, physical and climatic factors) to maintain
sufficient habitat diversity and species and population interactions.
● Environmental gradients: Diverse topography, elevation, soil types, geologic substrates,
and slopes allow for shifting species distributions in response to catastrophic events (e.g.,
fire, prolonged drought) and effects of a changing climate.
● Management needs: Management of preserves (e.g., livestock grazing, prescribed
burning, or exotic species control) must be feasible in the places needed or it is not
viable.
● Maximize size: The preserve land should be as large as possible within funding and
management limits. Large preserves tend to support more species for longer periods of
time than small preserves. Large preserves are also generally easier to manage on a peracre basis because a large preserve reduces conflicts that may arise when managing for
covered species with very different habitat requirements. Large preserves also better

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●

●

●
●

allow for large-scale management treatments such as prescribed burning and grazing and
the maintenance of natural disturbance regimes such as flooding.
Minimize edge: the preserve land should minimize the amount of edge habitat exposed
and unprotected to non-preserved land. Edge habitat generally exposes species to more
threats than areas insulated by other protected areas. In some cases, it may be appropriate
to protect linear features such as streams, riparian woodland, valley bottoms, or
ridgelines.
Protected land linkages: Consider the value to covered species of protecting land
between existing and proposed protected areas inside and outside the HCP area. These
linkages can help the species move between protected areas, and increase the integrity of
the network of preserves. Consider climate gradients when assessing the quality of land
linkages. For example, ensure the linkages involve projected climate gradients/conditions
the covered species are considered likely to tolerate, and that the linkage habitat is likely
to remain suitable.
Protect the highest-quality habitat: The Preserve System should preserve the highestquality habitat for covered species in the HCP area. Higher quality habitat tends to be
more ecologically intact, resilient, and of more value to covered species.
Watersheds: When possible, protect entire watersheds, sub watersheds, and headwater
streams that are not already in protected status to maintain ecosystem function and
aquatic habitat diversity.

Checking with local experts is a good way to identify regionally and locally-based tools and
guides for conservation planning, including many that incorporate considerations of climate
change effects. For more information on the general topic of conservation design visit the HCP
Handbook Toolbox.
These references are great sources of information on conservation design:
● Stein, B.A., P. Glick, N. Edelson, and A. Staudt (eds.) 2014. Climate-Smart
Conservation: Putting Adaptation Principles into Practice. National Wildlife Federation.
Washington, DC.
● Groves, et al 2012 Incorporating climate change into systematic conservation planning.
Biodiversity Conservation. 21: 1651-1671.
● Soule, M. E., and B. A. Wilcox, eds. 1980. Conservation Biology: An EcologicalEvolutionary Perspective. Sinauer Associates, Sunderland, MA.
● Soule, M. E., M. E. Gilpin, W. Conway, and T. Foose. 1986. The millennium ark. Zoo
Biol., In press.
● Primack, R.B. 2014. Essentials of Conservation Biology 6th edition. Sinauer Associates,
Sunderland, MA.
● Meffe, G. K. and C. R. Carroll. 2006. Principles of Conservation Biology, 3rd Edition.
Sinauer Associates, Sunderland, MA.
● Noss et al. 1997. The Science of Conservation Planning: Habitat Conservation Under the
Endangered Species Act. Island Press, Washington, D.C.

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9.4.8 Permittee Responsibilities: Meeting Goals and Objectives, or Specific
Actions in the HCP
The permittee is responsible for meeting goals and objectives. However, the goals and objectives
have to be expressed in the HCP and permit in terms of specific actions, potential adaptive
measures, or procedures to develop adaptive measures. The permit conditions are the primary
legal obligations placed on a permittee. As we guide the development of HCPs, the Services
should work with the applicant to ensure that all the measures in the HCP, if fully implemented,
would meet the biological goals and objectives.
9.4.9 Timing of Mitigation
The HCP must provide a clear timeline for implementing the mitigation. The timing of
implementing mitigation should prevent any lag time between the occurrence of the impacts of
the taking and the realization of the mitigation benefits to offset the impacts. Otherwise, the lag
time between impacts and offset can result in additional impacts to the species which can affect
the amount of mitigation needed to fully offset impacts and may affect the survival of the species
at the site. An example is when development destroys breeding habitat for a covered species, but
successfully protecting and restoring habitat as mitigation elsewhere may take two years to
achieve. In that case, the species loses recruitment for two breeding seasons in that area.
Therefore, the HCP should provide for implementation of mitigation such that the offset would
be achieved before the impacts of the taking occur. If this is not possible, then the mitigation
activities should be implemented concurrent with or as soon as possible after the impacts of the
taking occur. In these cases, we must determine the type and level of additional impacts that
would occur during the time lag and ensure that the proposed mitigation would also offset those
impacts. We also must include the temporal impacts and offsets for them in our effects analysis
in the biological opinion.
Another reason mitigation should occur before the impacts, is to avoid the risk that
circumstances might prevent the mitigation from being implemented, leaving the covered species
in worse condition than before the HCP. Providing appropriate contingency responses for this
type of timing will result in more complexity and time to develop the HCP. If the HCP’s
mitigation cannot be implemented until after impacts, the applicant needs to include acceptable
instruments in the HCP for ensuring implementation of the mitigation, such as bonds, letters of
credit, or similar funding assurances. An example: a bridge spanning a river is constructed. The
bridge building impacts both aquatic and terrestrial habitat. In this case, it would not make sense
to restore the area before the bridge is built and then to build the bridge. The restoration will
have more biological value if the restoration occurs after the ground disturbing activities are
completed. Another example is related to timber plans: trees are harvested (causing impacts), but
other trees are left standing to grow into habitat for wildlife (the trees are left as part of the
mitigation). In this case, impacts and mitigation are happening simultaneously throughout the
plan area. Strong financial assurances are needed for: long term monitoring, adaptive
management, and contingency funding to ensure certain minimization and mitigation actions
perform as expected (e.g. erosion control near a stream).

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9.4.10 Mitigation and “Stay Ahead” Provisions
To ensure that timing of mitigation actions occurs before (or at least concurrent with) the taking,
some HCPs incorporate a “stay ahead” provision or phasing of conservation and impacts. In
these instances specific components of the overall conservation strategy are implemented in
stages in advance of specific phases of the covered activities. Each stage of mitigation and
development activity must have milestones. For example: an applicant acquires X number of
acres of habitat for conservation before Y number of acres can be impacted by covered activities.
There is often a ‘cushion’ of conserved lands or conservation actions to ensure conservation
stays ahead of impacts.
9.5 The Maximum Extent Practicable Standard
The discussion in this section is not intended to change the existing ESA standards, Services’
regulations or policies, but rather to clarify the meaning of minimize and mitigate to the
maximum extent practicable, and to provide guidance on how to determine when the standard
has been met, a key step in issuing a permit.
Because the meaning of the term mitigation can have different interpretations, we define
mitigation for the purposes of this Handbook as to offset impacts of taking on the species (see
Chapter 8.3). We use the term fully offset to mean completely mitigating any impacts expected
to remain after avoidance and minimization measures are implemented. In other words, fully
offset means the biological value that will be lost from covered activities will be fully replaced
through implementation of conservation measures with equivalent biological value. Fully offset
also means the mitigation is commensurate (equal) with the impacts of taking. The statutory
standard of minimizing and mitigating the impacts of the take “to the maximum extent
practicable” under ESA Section 10(a)(2)(B)(ii) will always be met if the HCP applicant
demonstrates that the impacts of the taking will be fully offset by the measures incorporated into
the plan. However, the statutory standard will also be met where the applicant demonstrates that
while the HCP will not completely offset the impacts of the taking, the minimization and
mitigation measures provided in the plan represent the most the applicant can practicably
accomplish.
To issue an incidental take permit, the ESA requires the Services to make a finding that “the
applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such
taking.” To meet this issuance criterion, the applicant must:
1. estimate the type and amount of take expected from covered activities, and the impacts of
such taking on the species and/or its habitat;
2. determine from a biological perspective how conservation measures in the HCP will
minimize the impacts of the taking on the species’ status and/or its habitat; and
3. determine from a biological perspective how conservation measures in the HCP will
mitigate the remaining impact of the taking on the species’ status and/or its habitat.
Using the analyses in steps 1-3 above, the applicant must show that their HCP will minimize and
mitigate the impacts of the taking to the maximum extent practicable because either:

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● The combination of minimization and mitigation in the HCP leaves no remaining
impacts of the taking on the species that could be further mitigated or minimized,
that is all impacts will be fully offset.
OR
● If the applicant cannot fully offset the impacts of the taking, they must
demonstrate that it is not practicable to carry out any additional minimization or
mitigation.
The applicant should strive to fully offset their impacts through implementation of the
conservation strategy (see figure 9.1b). The greater the impacts of take that remain after
minimization and avoidance, the more mitigation the applicant will be responsible for
implementing. This is a key point to emphasize when discussing avoidance and minimization
with applicants because the amount of mitigation is directly related to the amount of and
significance of the impacts of the taking that remain after minimization.
Figure 9.1b: Shows impacts compared to the degree of offset (partial vs. fully).

Ultimately, the Services must provide a clear rationale (supported in the record) for concluding
that the minimization and mitigation measures are adequate, and if the impacts of the taking are
not fully offset, to determine whether additional minimization and mitigation is practicable (how
to determine this is explained more below).
9.5.1 How to Demonstrate That an HCP “Fully Offsets” the Impacts of the Taking
It is not just the quantity of take that needs to be minimized and mitigated, rather it is the
‘impacts of the taking’ that must be minimized and mitigated. Biologically, these are not
necessarily the same. Impacts of the taking depend on the specific situation and could include
more than just the loss of individuals or loss of habitat. This standard requires us to think more
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deeply about how those impacts will affect the species. What are all the purposes the habitat that
will be lost serves for the species? Foraging? Connecting habitat? Breeding grounds? Similarly,
for the loss of individuals, what are all the ways losing these individuals is going to affect the
species or local population? Is a source population going to be lost? Is there important genetic
diversity that could be lost? Is there a particular life stage that will be lost? What value is this life
stage to the population (e.g., in long-lived species, the loss of adults can have a
disproportionately high effect on the entire population)?
For us to determine that the proposed HCP minimization and mitigation measures meet the
“maximum extent practicable” standard, we must be able to define “impacts of the taking” for
the particular situation we are analyzing. Consider the impacts of the taking in a manner that is
biologically sound and based on the best available science. Some examples of fully offsetting
impacts include:
Habitat example:
● Loss: 100 acres of habitat type x are permanently lost.
● Measure to offset impacts: restore and protect in perpetuity (at least) 100 acres of habitat
type x that is of (at least) equal biological value to the covered species before impacts
occur.
● Key questions: what value did the habitat lost have to the covered species? What value
does the replacement habitat have to covered species (e.g., did the replacement habitat
provide for the same life stage of the covered species as that lost)? Does the replacement
ratio need to be greater than 1:1 to compensate for the lag time between impacts and full
eco-function of the replacement habitat, to allow for restoration uncertainties, or is
consistent with previously-defined recovery objectives? Is the identified conservation
habitat likely to remain suitable in reasonably anticipated future climate scenarios? Is
there more value to the species by replacing the habitat that is lost with a different habitat
type (e.g. breeding vs. foraging habitat)?
Loss of individuals example:
● Loss: 100 individuals will be taken.
● Measure to offset impacts: measures should be implemented to fully offset the effects to
the population or species from the loss of those 100 individuals (e.g., removal of nonnative species, restoration, etc.). Conservation measures could affect the population by
increasing carrying capacity (through improving habitat), or increasing population growth
rate (by reducing threats) for instance.
● Key questions: what life stage of individuals would be lost? In a long-lived species, loss
of adults may have a much higher effect on the species or population than loss of
juveniles, which may require actions to replace the loss of 100 adults with 400 juveniles,
since many juveniles will die before reaching the adult (reproductive) stage. What is the
value to the population of the life stages that would be lost? What is the significance to
the population or species to lose 100 individuals? Is it an important population loss?
What is the expected reproductive value that could be lost before being replaced? Is the
lost reproductive value factored into the mitigation requirements?
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Helpful Hint: the Resource Equivalency Analysis (REA) process may be useful for HCPs in helping to
determine impacts of the taking and how to appropriately compensate for it. REA involves
determining the amount of “natural resource services” that the affected resources would have
provided had it not been lost, and it equates the quantity of lost services with those created by the
proposed compensatory mitigation projects that would provide similar services. See chapter 7.7 for
more on REA and other tools.

In some circumstances, impacts from loss of individuals can be offset with mitigation focusing
on habitat conservation (and vice versa), but care should be given to compare and document the
value of what is lost and the expected value of measures to replace what would be lost.
Demonstrating the biological justification for measures that will fully offset the impacts can be
complicated. Conceptual models, quantitative models, and published research are all useful tools
to help understand the net effects and how those effects can be fully offset.
Figure 9.1c: Mixing and matching forms of take and mitigation (to offset the
impacts of the taking)

Below are examples where the applicant fully offset their impacts of the taking:

Golden-cheeked warbler
FWS estimates a total loss of approximately 55 territories of 110 golden-cheeked
warblers (55 pairs) as a result of the proposed project through habitat destruction from
residential development. However, because of uncertainty in occupancy estimates, it may
be more appropriate to state the losses in terms of habitat lost. Four hundred acres of high
quality occupied habitat and 400 acres of low quality occupied habitat will be lost to the
species.

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To fully offset the impacts of the taking in this case, the project proponent could purchase
credits from a conservation bank at a mitigation ratio (based on research) of 3:1 for high
quality habitat, 2:1 for medium quality habitat, and 1:1 for low quality habitat.
3 acres high quality purchased for each 1 acre of high quality habitat lost:
400 acres lost x 3 = 1,200 acres

+
1 acre of low quality habitat purchased for each 1 acre of low quality habitat lost:
400 acres lost x 1 = 400 acres
-------------------------------------------------------------------------------------------total credits needed to offset impacts
1,600 acres
The purchase of 1,600 acres from a conservation bank is needed to fully offset the loss of
habitat for 55 pairs of golden-cheeked warblers. Using the framework above was found to
fully offset the impacts of the taking by protecting more habitat (of equal or greater
quality) than was impacted. The conserved habitat in the example will have to be
maintained for conservation purposes in perpetuity.
Southwestern willow flycatcher
Covered activities for an agricultural focused HCP that covers Southwestern willow
flycatcher include: routine agriculture, small community infrastructure construction and
operation, and riparian habitat conservation and restoration activities within the plan area.
Implementation of the covered activities over the permit term is expected to result in
temporary and permanent impacts to habitat.
Mitigation actions include: establishment of conservation easements, habitat restoration
or enhancement, and development and implementation of management agreements.
Habitat permanently lost (expected to be primarily marginal habitat for the covered
species) will be mitigated at a 1.25:1 ratio. Habitat temporarily altered (also expected to
be primarily marginal habitat) will be mitigated at a 0.75:1 ratio.
Over the permit term, the status of the flycatcher is expected to benefit from
implementation of the HCP through protection and management actions in riparian
habitats. Furthermore, the habitat that is expected to be lost or degraded is primarily
marginal for the flycatcher, while the amount of habitat to be conserved as mitigation will
be of good quality for the species. Therefore, the mitigation and minimization measures
would more than fully offset the habitat expected to be unavailable, modified, or lost due
to the covered activities in the HCP area over the permit term. If we have underestimated
the extent of habitat that may be unavailable, modified or lost, the HCP includes a
mechanism for additional mitigation. Thus, the HCP will provide a benefit to the status of
the flycatcher by more than fully offsetting their impacts.
The applicant must include and document the analysis and the achievement of the “maximum
extent practicable” standard, such as, by demonstrating that the impacts have been fully offset.

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If it is infeasible for the applicant to fully offset the impacts of the taking, the applicant must
demonstrate that the extent of offset (i.e. their efforts to minimize and mitigate the impacts of
take) is the maximum extent that can be practicably implemented.
9.5.2 Demonstrating Additional Minimization and Mitigation Measures Are Not
Practicable
If the applicant cannot fully offset the impacts of the take the Services must conduct an analysis
to independently determine if the proposed conservation measures minimize and mitigate the
effects of the applicant’s actions to the maximum extent practicable. Maximum extent
practicable means, within their available means, the applicant can feasibly do no more to
minimize or mitigate the impacts of the taking (see and National Wildlife Federation v. Norton,
2000 WL2175874 (E.D. Cal., 2000). As noted above, one way to demonstrate this standard has
been met is to demonstrate that the impacts of the taking have been fully offset. Where this
approach is taken, the Services should provide a finding noting that “maximum extent
practicable” has been achieved because the combination of minimization and mitigation
provided by the HCP fully offsets the impacts of the taking or provides a net benefit.
Where “fully offset” will not be achieved, such a finding may be supported using two broad
categories:
● Insufficient implementation options: If there are rigid restrictions on how a project can
be developed and there are insufficient options for implementing additional mitigation,
then this path to demonstrating maximum extent practicable may be appropriate.
Specifically, if there is insufficient habitat to fully offset the impacts of take (in particular
where geopolitical boundaries constrain where conservation/mitigation can occur), or if
the measures necessary to fully offset the impacts of take cannot be implemented due to
physical constraints, then the applicant must demonstrate with supporting documentation
that the level of mitigation proposed is the most that can practicably be accomplished and
that there is no way to further minimize or mitigate their impacts. For example: if a city’s
proposed covered activities would result in take of species X through habitat loss but
there is no more habitat for species X within its jurisdictional boundary to offset the loss
of habitat, the city might attempt to acquire mitigation habitat within surrounding
jurisdictions. If the other jurisdictions are unwilling/unable to allow that option, then the
City should document the impracticability of providing such habitat for species X as a
means of offsetting the impact of take. The City should, however, propose an alternative
form of mitigation to offset the impacts of take to the maximum extent practicable. This
option should be used infrequently and only in situations where there truly are no other
options.
● Financial: Financial constraints can also limit the ability of the applicant to practicably
do more. The applicant should be able to continue operating at a reasonable financial
standing comparable to other like individuals/companies/ municipalities. This option
should only be used infrequently and only in situations where there truly are no other
options. This option requires the applicant to share financial information with the
Services to justify their claim so that the Services can make the maximum extent

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practicable finding. This information could be released pursuant to the Freedom of
Information Act unless exemptions apply to it.
Where the minimization and mitigation measures do not fully offset the impacts of the taking,
the applicant must provide the Services with sufficient documentation and justification to support
the “maximum extent practicable” finding. The Services must then conduct an independent
analysis of the information provided by the applicant to make the required finding.
Examples where the applicant could not fully offset the impacts of their taking (but still met
issuance criteria):
Alabama beach mouse
Conservation opportunities in coastal habitats is limited, this leads FWS to emphasize
minimization and avoidance measures implemented throughout the life of a proposed
project or activity. For beach mouse habitats, the permittee minimized construction so
that as much native vegetation as possible is retained, and some habitat remains
contiguous with adjacent properties. The permittee implemented permanent management
prescriptions for landscaping, trash collection, feral animal control, and keeping pets
indoors to minimize adverse effects on sensitive wildlife. They also supplemented the
minimization measures with an in-lieu fee arrangement that accumulates funds for habitat
acquisition. These minimization and mitigation measures have been demonstrated to be
effective in maintaining linkages and conserving the species in the plan area.
Sea turtles
In Volusia and St Johns Counties, Florida, the permittees implemented HCPs to mitigate
the effects to nesting and hatchling sea turtles from vehicular beach access and parking
by the public. Direct harm of nesting females and emerging hatchlings is minimized by
the delineation of “no-drive” zones, marking of nests, moving nests from high traffic
areas, smoothing tire ruts, and keeping beaches clear of recreational gear overnight. The
opportunities to compensate sea turtle habitat impacts off-site are limited, so Volusia
County enhances the population (and mitigates for effects) by constructing and operating
an aquarium with a sea turtle hospital. The Services accepted this as a form of
compensatory mitigation because the new facility improved capacity for treating stranded
adult sea turtles and significantly reduced the travel time from rescue to veterinary care.
Adult sea turtles typically are not subject to injury by vehicles, and very few sea turtle
nests are lost due to vehicular operation. No nest losses are known for over 10 years due
to nest surveys, marking nests, and moving nests from highest traffic zones. Still, the
numbers of eggs and hatchlings potentially injured or killed can exceed 100 per nest.
Conserving the number of breeding age adults is expected to contribute to sea turtle
recovery because the future breeding potential of a rehabilitated adult sea turtle exceeds
that of any given hatchling.
9.5.3 The Burden of Proving Maximum Extent Practicable
If the proposed minimization and mitigation will leave impacts that are not fully offset, the
applicant must provide a clear justification to the Services documenting the reasons no more

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mitigation is practicable. In the applicant’s justification for less than fully offsetting their
impacts, the applicant should follow the steps below.
Financial: If the applicant is making a financial case, they need to demonstrate they cannot
afford more mitigation by taking the following steps:
1. demonstrating that they cannot adjust their project to reduce impacts,
2. showing their books, which means showing what profits:
a. are currently and projected (without the HCP)
b. will be (projected) with the proposed HCP
c. will be (projected) with increased mitigation
d. will be (projected) if applicant fully offsets take
3. demonstrating why additional mitigation or minimization measures would impair their
ability to sustain a reasonably profitable business or put them at a significant competitive
disadvantage to other similarly situated businesses.
*The financial approach would be greatly strengthened by an independent third party (e.g.,
accountant or economist) contracted (by the applicant) to study the applicant’s financial books
and offer their own conclusion.
Insufficient implementation options: If the applicant is making a case for insufficient
implementation options, they need to demonstrate there are no more practicable options by:
1. demonstrating that they cannot adjust their project to reduce impacts and still maintain
project purposes;
2. documenting all the minimization and mitigation options currently proposed in the HCP;
3. documenting their effort and process to secure other minimization and mitigation options;
4. documenting that there are no more reasonably available or practicable minimization and
mitigation options that would fully offset the impacts of the take; and
5. explaining their conclusion, with supporting documentation, that additional measures to
fully offset the impacts of the take are impracticable.
9.5.4 Services Conduct an Independent Analysis of Practicability
When evaluating an applicant’s maximum extent practicable case, ask for the assistance of the
regional HCP coordinator and solicitor or general counsel. If the justification contains
information outside the expertise of Services staff, the regional HCP coordinator can help
determine appropriate resources to assist staff in the evaluation. The regional HCP coordinator
and solicitors or general counsel must also review the justification and the Services’ staff
conclusion. There are a number of questions that could be useful when assessing the applicant’s
practicability case:
● Does the MEP justification make sense?
● How does the proposed mitigation compare to similar HCPs?
● For a financial case:
○ Did they provide adequate documentation?
○ Do the numbers seem reasonable?
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● For an insufficient implementation options case:
○ Did the applicant look at all the options?
○ Did they put appropriate effort into asking for assistance?
● Do the Services agree with the conclusion?
The Services staff must fully document their independent evaluation and conclusion, which may
include a third party analysis. A summary of the applicant’s justification and the Services’
conclusion must be described in the Services’ Findings. All the supporting documents associated
with the applicant’s justification, the Services’ evaluation and conclusions and that of a third
party, if used, must become part of the administrative record for the HCP.
9.5.5 Services Demonstration of Maximum Extent Practicable
Using the results of our independent evaluation, that may or may not include a third party
analysis (above), the Services needs to explain and document clearly and logically in the HCP
Findings our conclusions that what the applicant is offering for minimization and mitigation is
the maximum practicable and that additional mitigation would not be feasible. If we issue the
ITP, the Services should also make clear that the other issuance criteria can still be met, despite
the applicant’s inability to fully offset their impacts.
If we determine impacts will not be fully offset (but is the most that the applicant can practicably
provide), be prepared with thorough documentation and logical analysis so a judge can
understand our rationale. The following case law provides more discussion on making the
maximum extent practicable finding: National Wildlife Federation v. Babbitt, 128 F.Supp.2d
1274 (E.D. Cal. 2000); National Wildlife Federation v. Norton, 2005 WL2175874 (E.D. Cal.,
Sept. 7, 2005); National Wildlife Federation v. Norton, 306 F.Supp.2d 920 (E.D. Cal. 2004);
SWCBD v. Bartel, 470 F. Supp. 2d 1118 (S.D. Cal. 2006); Sierra Club v. Babbitt, 15 F.Supp.2d
1274 (S.D. Ala. 1998); Sierra Club v. Norton, 207 F.Supp.2d 1310 (S.D. Ala. 2002); Union
Neighbors United, Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 2016); Friends of the Wild Swan v.
Jewell, 2014 U.S. Dist. LEXIS 116788 (D. Montana, Aug. 21, 2014) (see the HCP Handbook
Toolbox).

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Figure 9.1d: Decision Tree to Evaluate Maximum Extent Practicable Options

Key concepts:
● The goal for every HCP, should be to fully offset the impacts of take resulting from the
covered activities, and every HCP must minimize and mitigate the impacts of take to the
maximum extent practicable; ideally, the HCP should also contribute to the recovery of
the species and provide a net conservation benefit.
● The applicant must show in the HCP that it considered other alternatives to the taking,
than the one it chose (e.g., no action/abandon the project alternative alternative, low
mitigation alternative, fully offsets impacts alternative alternative, more than fully offsets
impacts alternative alternative).
● If there are other HCPs that cover the same species and address similar actions and
circumstances, explain any substantial differences in required mitigation or minimization
measures between this HCP and those other HCPs in the Findings (See Chapter 16.1).
● If impacts will not be fully offset by the HCP, require the applicant to provide
documentation to support a conclusion that additional mitigation would not be practicable
(preferably analyzed by an independent, third party and in a clear, objective, documented
format, which the Services will evaluate).
● For each covered species, make sure the Findings and record reflect our independent
evaluation of the impacts of the taking, the adequacy of the mitigation provided under the
plan, and the impracticability of providing additional mitigation.

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● If the biological impact from covered activities cannot be offset, then the field lead
should contact the regional HCP coordinator and regional solicitor (for FWS) or regional
lead and general counsel (for NMFS), and an economist (if making the financial case) for
assistance in making a “maximum extent practicable” finding.
● In making the maximum extent practicable finding for each covered species, it is possible
that the impacts of the taking to some covered species will be fully offset, while impacts
to other covered species are not.
● We must understand the effects of impacts and conservation on covered species.
9.6 Changed and Unforeseen Circumstances
Federal No Surprises Assurances (codified at 50 CFR 17.3, 17.22(b)(5), 17.32(b)(5); 50 CFR
222.307(g)) (see the HCP Handbook Toolbox) provides assurances to Section 10 permit holders
that, as long as the permittee is properly implementing the HCP and the ITP, no additional
commitment of land, water, or financial compensation will be required with respect to covered
species, and no restrictions on the use of land, water, or other natural resources will be imposed
beyond those specified in the HCP without the consent of the permittee. The No Surprises rule
has two major components: changed circumstances and unforeseen circumstances. Changed and
unforeseen circumstances must be considered and are typically required to be included in HCPs.
However, in rare instances it may be determined that it is not necessary to include changed and
unforeseen circumstances in the HCP, such as low-effect HCPs with a short duration.
9.6.1 Changed Circumstances
Changed circumstances are defined in the No Surprises rule as “changes in circumstances
affecting a species or geographic area covered by [an HCP] that can reasonably be anticipated by
[plan] developers and the Services and that can be planned for (e.g., the listing of new species, or
a fire or other natural catastrophic event in areas prone to such events).” (50 CFR 17.3). If
additional conservation and mitigation measures are deemed necessary to respond to changed
circumstances, and such measures were provided for in the HCP, the permittee will be required
to implement such measures (50 CFR 17.22(b)(5)(i), 17.32(b)(5)(i); 50 CFR 222.307(g)(1)). If
additional conservation and mitigation measures are deemed necessary to respond to changed
circumstances, and such measures were not provided for in the HCP, the Services will not
require any additional measures beyond those provided for in the HCP, without the consent of
the permittee, provided the HCP is being properly implemented (50 CFR 17.22(b)(5)(ii),
17.32(b)(5)(ii); 50 CFR 222.307(g)(2)).
Difference between Changed Circumstances and Adaptive Management
Changed circumstances are circumstances that can be reasonably anticipated and specifically
addressed in an HCP prior to permit issuance. When properly implemented, no additional
commitment of land, water, or financial compensation will be imposed by the Services onto the
permittee beyond those specified in the HCP, without the consent of the permittee. Adaptive
management is a strategy for addressing uncertainty associated with an HCP’s conservation
program, particularly uncertainty that poses a significant risk to the covered species. This
includes, but is not limited to, uncertainty related to the covered species status or trend;
uncertainty related to the effects of a proposed covered activity on a proposed covered species;
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and uncertainty related to the effectiveness of an applicant’s proposed minimization and
mitigation measures. Through assumption-based learning and robust monitoring, adjustments
can be be made to the HCP’s conservation program in response to what is learned. Whether an
adaptive management strategy is necessary will be determined on a project-by-project basis.
However, adaptive management is essential for HCPs that were developed despite significant
information and data gaps that pose a significant risk to a species at the time the permit is issued.
HCP assurances (No Surprises) can also apply to an adaptive management strategy when all
appropriate HCP provisions have been mutually crafted and agreed upon and approved by the
Services and the applicant. To receive assurances, the adaptive management strategy should
identify up-front the range of possible operating conservation program adjustments that could be
implemented as new information or data is obtained. This range defines the limits of what
resource commitments may be required of the permittee. This process will enable the applicant
to assess the potential economic impacts of adjustments before agreeing to the HCP.
Helpful Hint: The HCP must identify a suite of potential changed circumstances, the specific response
to each, the costs of implementing the response, and the funding assurances for those responses,
where appropriate. In doing so, potential problems can be identified in advance and specific strategies
or protocols for dealing with them can be incorporated into the HCP, thus facilitating adjustments to
the HCP’s conservation program without having to amend the HCP.

Changed circumstances and planned responses are treated as part of the HCP’s operating
conservation program. Like other aspects of the conservation program, effectiveness of
management actions in reducing the effects of changed circumstances can be improved through
implementation of the monitoring and adaptive management programs.
If additional or alternate conservation measures are necessary to respond to changed
circumstances, and such measures are not part of the responses to changed circumstances
provided in the plan, the Services and the permittee should work together to shift priorities to
best meet goals and objectives within the original resource commitments in the HCP. We cannot
require additional actions or funds be expended without the permittee’s consent; so it is
important to identify upfront in the plan all reasonably foreseeable changed circumstances that
may occur during the permit term and feasible responses to them. The No Surprises regulation
prohibits us from requiring mitigation involving any additional commitment of land, water, or
financial resources or additional restrictions on the use of land, water, or other natural resources
beyond the level otherwise agreed on in the HCP without the consent of the permittee. If a
condition arises that should have been-but was not identified as a changed circumstance in the
HCP, we cannot require the permittee to address it. This makes the process to identify changed
circumstances during plan development extremely important.
9.6.2 Unforeseen Circumstances
Unforeseen circumstances are defined as changes in circumstances affecting a species or
geographic area covered by a conservation plan that could not reasonably have been anticipated
by plan developers and the Services at the time of the negotiation and development of the plan
and that result in a substantial and adverse change in the status of the covered species (50
CFR17.3). The Services bear the burden of demonstrating that unforeseen circumstances exist
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using the best available scientific and commercial data available while considering certain
factors (50 CFR 17.22(b)(5)(iii)(C) and 17.32(b)(5)(iii)(C); 50 CFR 222.307(g)(3)(iii)) (see the
HCP Handbook Toolbox).
In deciding whether unforeseen circumstances exist, the Services shall consider, but not be
limited to, the following factors (50 CFR 17.22(b)(5)(iii)(C) and 17.32(b)(5)(iii)(C); 50 CFR
222.307(g)(3)(iii)):
1. The size of the current range of the affected species;
2. The percentage of the range adversely affected by the covered activities;
3. The percentage of the range that has been conserved by the HCP;
4. The ecological significance of that portion of the range affected by the HCP;
5. The level of knowledge about the affected species and the degree of specificity of the
conservation program for that species under the HCP; and
6. Whether failure to adopt additional conservation measures would appreciably reduce the
likelihood of survival and recovery of the species in the wild.
In negotiating unforeseen circumstances, the Services will not require the commitment of
additional land, water or financial compensation or additional restrictions on the use of land,
water or other natural resources beyond the level otherwise agreed upon for the species covered
by the HCP without the consent of the permittee (50 CFR 17.22(b)(5)(iii)(A); 50 CFR
222.307(g)(3)(i)). If additional conservation and mitigation measures are deemed necessary to
respond to unforeseen circumstances, the Services may require additional measures of the
permittee where the HCP is being properly implemented only if such measures are limited to
modifications within conserved habitat areas, if any, or to the HCP’s operating conservation
program for the affected species, and maintain the original terms of the plan to the maximum
extent possible (50 CFR 17.22(b)(5)(iii)(B) and 17.32(b)(5)(iii)(B); 50 CFR 222.307(g)(3)(ii)). If
unforeseen circumstances are found, the permittee is not required to come up with additional
resources or funds to remedy unforeseen circumstances, but the Services and the permittee
should work together to determine an appropriate response within the original resource
commitments in the HCP.
Notwithstanding these assurances, nothing in the No Surprises rule “will be construed to limit or
constrain the [Services], any Federal agency, or a private entity, from taking additional actions,
at its own expense, to protect or conserve a species included in a conservation plan” (50 CFR
17.22(b)(6) and 17.32(b)(6); 50 CFR 222.307(h)).
The “unforeseen circumstances” section of the HCP should discuss the process for figuring out
how to address those future changes in circumstances surrounding the HCP we may not
reasonably anticipate. There may be other approaches we can use to respond to the needs of the
affected species, including increasing the effectiveness of the HCP’s operating conservation
program (without raising costs), Government actions we can take to meet species needs, or
voluntary conservation measures the permittee can take.

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Helpful Hint:
● stick to the regulatory language for changed and unforeseen circumstances,
● identify a comprehensive list of circumstances,
● identify thresholds to make it clear when something is changed vs. unforeseen (e.g., 100-year
flood in a long duration HCP vs. 500-year flood),
● develop a plan for how we or the permittee will respond to each circumstance, and
● secure funding for responding to changed circumstances.

See 9.6.10 for more on how jeopardy and No Surprises interact with changed circumstances.
9.6.3 Steps to Identify and Plan for Changed and Unforeseen Circumstances During
HCP Development
1. Identify all changed circumstances using the changed circumstances checklist (Table
9.6.4a) or similar.
2. Develop thresholds for clearly identifying when circumstances are changed vs.
unforeseen.
3. Where appropriate, develop response for each- what will be the response to ensure goals
and objectives are met if circumstance X happens to Y degree?
4. Estimate the cost of the changed circumstances responses and provide an assured funding
source to fund the responses.
9.6.4 Differentiating Between a Changed and an Unforeseen Circumstance
One way to differentiate between a changed and unforeseen circumstance is to use a risk
assessment or probability of that condition occurring.
● For example, you might consider that the probability of a 100-year interval flood event is
likely to occur within the life of a long-term permit, but a 500-year flood is not. Keep in
mind, however, that in some locations the risk of what previously was considered a 500year or 100-year flood event may now be expected to occur much more frequently due to
climate change effects.
● Similarly, you may find that fires up to a XXXX acres or with specific return frequencies
of 1 per XX years are likely to occur during the permit term, but fires above that size or at
more frequent intervals would be unforeseen circumstances.
● Weather events such as tornadoes, tropical cyclones, and blizzards, can be expected to
recur in certain regions, and models may help understand the expected changes of
frequency and intensity from climate change effects.
It is possible that no response will be needed for a particular changed circumstance, such as
flooding in a healthy river system or fire in a fire-adapted community, if vegetation is likely to
regenerate naturally and covered species will recover and possibly benefit from the event.
However, it is key that the applicant carefully consider potential changed circumstances and that
the HCP includes a robust set of plan responses to those changes if they could affect the success
of the conservation measures. Changed and unforeseen circumstances apply to the mitigation
lands and also to the administration and operation of an HCP.
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The changed and unforeseen circumstances checklist may be useful to ensure the HCP includes
the appropriate information and planners ask the right questions (see Table 9.6.4a). Like other
aspects of the conservation program, effectiveness of management actions in reducing the effects
of impacts from elements identified as changed circumstances can be improved through
implementation of the monitoring and adaptive management programs.

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Table 9.6.4a: Changed circumstances checklist. Conditions that exceed the identified range
of changed circumstances will be considered unforeseen.
Element

Condition within which will be considered a
‘changed’ circumstance
Size

Frequency

Duration

Intensity

If changed
circumstance
occurs,
remedial
actions will
include:

Contaminant spill
Disease
Drought
Dramatic economic
change
Earthquake/tsunami
Economic downturn
Expansion/succession
of vegetation
community
Fire
Flooding
High winds
Invasive species
introduction
New species listing/
designation of critical
habitat
Sea level rise
Temperature
● Excessive
heat
● Excessive
cold
Tornado/Hurricane
Volcanic eruption
Not all of these will apply to your HCP, and some may be missing.

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How will
remedial
action be
funded?

Cost
estimate for
remedial
action

If threshold for changed
circumstance is surpassed,
response will be:

9.6.5 Determining Changed vs. Unforeseen Circumstances
Changed circumstances are those that can be reasonably anticipated and planned for. Any source
of information that is useful for anticipating potential conditions can be used as the basis for
determining changed vs. unforeseen circumstances. Specific sources include:
●
●
●
●
●
●
●

weather records over the past xx years,
disease trends,
population trends,
proximity of invasive species to the plan area,
historical fire data,
sea level rise models,
projections of drought and megadrought, etc.

For consideration of climate change effects, past events may not always be useful, but they may
help predict future events. The Services have specialists who can help provide the best available
scientific information regarding relevant trends and projections and how to interpret and use
them in the context of changed vs. unforeseen circumstances.
9.6.6 National Environmental Policy Act (NEPA) and Changed Circumstances
The NEPA analysis conducted on the issuance of the section 10(a)(1)(B) permit should include
the realm of changed circumstances and all resulting activities to avoid the need for a future
amendment to the permit and to the NEPA document associated with the Services’ issuance of
the permit.
9.6.7 Considering Climate Change Effects in Changed Circumstances
When developing the list of changed circumstances and the remedial actions to reduce their
effects, the effects of changing climatic conditions need to be considered. Of the elements
considered for changed circumstances, what is their current trajectory or trend? If the current
trend continues, or if projections indicate an acceleration in the trend, how might that affect the
management response at year xx? For those elements that you’re not considering as changed
circumstances, does thinking about their trend or trajectory bring them into the realm of changed
circumstances?
For example, looking at the frequency of fire events over the last 25 years may be all you need to
understand fire trends in the area. See Figure 9.7a.

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Figure 9.7a: Example 1- Fire events

This figure suggests an increased frequency of burns. Sometimes the situation takes more
examination to really understand meaningful trends:
Figure 9.7b: Example 2- Fire events

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In the second example, the average number of fire events does not tell the whole story. Only
after looking at the number of acres damaged from those same fire events do we see a significant
trend in fire activity. This is an indication of increased intensity of burns rather than increased
frequency. In this case and others, the average is probably not the best threshold for
demonstrating changed circumstances have been exceeded, as it is possible that the average
would be exceeded at least half of the time.
It is not necessary to incorporate climate change in of itself as an identified changed
circumstance. Rather, we should consider how the potential local effects of climate change, such
as sea-level rise, drought, wildfire, or invasive species, may cause changes to the effectiveness of
the HCP’s conservation strategy that would require adjusted implementation. For example,
scientific modeling of fire and climate change has projected a substantial risk of increase in
conditions for very large fires (the top 5 - 10 percent of the largest fires) across many parts of the
United States in the coming decades, as well as an extending the “fire season.” When assessing
climate change effects in changed circumstances, it is important to consider the best available
scientific information, including the historical record, the recent trajectory or trend, and the
projected future trajectory for specific variables that are relevant for the region and timeframe of
interest (see 9.6.7).
9.6.8 Timing of Changed Circumstances
Changed circumstances can occur during the permit term. Changed circumstances do not apply
after the permit term ends. After the permit term ends, management changes should be
memorialized in the conservation easement or similar governing document. Funding must be
provided to address post permit management needs (usually from an endowment).
9.6.9 Information Needs for Changed and Unforeseen Circumstances
The HCP needs to include enough information to:
● identify potential elements that may be encountered during the permit term
● identify when changed or unforeseen circumstances are triggered
● make clear when an element is changed vs. unforeseen (e.g., intensity, size, duration,
frequency)
● identify what the management response(s) will be to reduce the effects
● provide a cost estimate of the remedial action
● Provide an assured funding mechanism to remediate changed circumstances
9.6.10 No Surprises and Changed Circumstances
The No Surprises regulations provide the permittee with assurances that, assuming the plan is
being properly implemented, the Services will not require additional measures or funding beyond
what was agreed to in the HCP without the permittee’s consent. Changed circumstances must be
written into the plan, including remedial measures and funding for those measures. If we
determine that continued implementation of the plan will jeopardize the existence of a covered
species or adversely modify its critical habitat, there are two options:

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1. the Services can revoke the permit coverage for that species, or
2. the permittee can voluntarily implement additional measures beyond what they
committed to in the HCP if they are sufficient to remedy the pending jeopardy of the
species/adverse modification (permittee retains permit).
If we determine that continued implementation of the plan would jeopardize the existence of a
non-covered species or adversely modify its critical habitat, there are three options:
1. the Services can revoke the permit coverage for those activities that are taking the
species,
2. the permittee can voluntarily implement additional measures beyond what was committed
to in the HCP if they are sufficient to remedy the pending jeopardy of the species/adverse
modification (permittee retains permit), or
3. the permittee can amend the HCP (and NEPA document) to include the species at risk as
a covered species and reduce the impacts to a level less than jeopardy/adverse
modification (permittee retains permit).
HCPs should identify the listing of non-covered species and designation/revision of critical
habitat within the plan area during the permit term as changed circumstances. This upfront
thinking helps make clear what the steps are to react and accommodate a newly listed species or
critical habitat designation while keeping the permit in good standing. While we do our best to
include all the species that may be ESA-listed as a covered species and to protect essential
species habitat in HCPs, it is not always predicted when such a situation will arise, especially
over a long permit term. The process to address future ESA listings can also be addressed in
other sections of the HCP or in the Implementing Agreement.
In order to receive an ITP with No Surprises assurances, the permittee must do their part to keep
their permit in good standing. The permittee must ensure they are properly implementing the
permit, including the HCP and Implementing Agreement (if applicable).
9.7 Considering Climate Change
In light of the improved understanding of the ongoing and projected effects of climate change, it
it may be useful to apply the SHC approach. The SHC approach is a structured approach to
conservation planning that incorporates new information, which is particularly important with
changing conditions, like climate change. Further, integrating the approach from Climate-Smart
Conservation incorporates consideration of climate change effects into an adaptive management
framework. Using the Climate-Smart Conservation approach helps ensure the HCP and our
issuance of a permit is consistent with Executive Orders and related agency policies for including
climate change considerations and adaptation to climate change effects in our planning and
management.
The HCP conservation strategy, as well as our section 7 and NEPA work related to HCP permit
issuance, should consider climate change and its effects. The Department of the Interior issued
its Climate Change Adaptation policy in 2012 to “integrate climate change adaptation strategies
into its policies, planning, programs, and operations.” Based on the Department’s policy, the Fish

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and Wildlife Service issued policy on climate change adaptation in 2013. From the FWS policy,
section 1.6:
“It is our policy to effectively and efficiently incorporate and implement climate change
adaptation measures into the Service’s mission, programs, and operations. ….from facilities
maintenance to public use of lands, and from habitat restoration and refuge management to
endangered species recovery plans."
The DOI and USFWS climate change adaptation policies also emphasize the use of the best
scientific information available. More than just to meet agency policy, integrating consideration
of climate change effects into planning and implementation of HCPs makes sense to maximize
their efficiency and effectiveness in contributing to the conservation of species.
The National Marine Fisheries Service, Office of Protected Resources also issued its Endangered
Species Act Climate Guidance in 2016 (see the HCP Handbook Toolbox). NMFS’ experiences
with recent ESA listing decisions (e.g., ice seals and corals) reinforced the importance of agency
climate change policy guidance to better support NMFS ESA resource managers in agency
analyses and decision-making. Seven key climate change considerations are identified in the
guidance and relevant considerations for each are provided in the 2016 document. These
considerations are: climate change emission scenarios; time periods for projecting anticipated
climate change effects; addressing the adequacy of international and national policies and
regulations; considerations for critical habitat designations; weighing the beneficial and adverse
effects of actions; designing appropriate management action recommendations; and requirements
in permitting and project designs.
The types and magnitude of ongoing and projected effects of climate change varies in different
geographic areas and over time. Climate-related effects on species and habitat also vary, and may
include interactions with non-climate conditions, e.g., habitat fragmentation, invasive species.
Consequently the work involved in integrating consideration of climate change effects in an HCP
conservation strategy will depend on many factors. Although there is no “one-size-fits-all”
approach, there are some best practices that can guide this work. When appropriate, we should
encourage applicants to develop an HCP conservation strategy that integrates consideration of
climate change effects throughout the process, and thus is “climate-aligned” by design; this
approach is likely to be more efficient and effective than developing a conservation strategy and
then trying to retrofit it to include these considerations.
Climate change, its effects, and climate adaptation approaches are the subject of continuously
evolving scientific work and management experience. Familiarity with the key concepts and
approaches described in documents such as Climate Smart Conservation, will be extremely
helpful in designing the HCP conservation strategy, as well as in the section 7 and NEPA
processes related to an HCP. In addition, assistance from Services or other climate change
specialists may be helpful. Throughout this chapter and elsewhere in the handbook, information
is included to facilitate the integration of climate change considerations. Details are provided in
the HCP Handbook Toolbox, and are based on a set of best practices applicable to other analyses
and planning under the ESA. The best practices material will be updated as appropriate when
substantial new information emerges.

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When we consider climate change in the HCP context, we intend to focus our considerations and
analyses on the specific proposed covered activities under review and the expected climate
change effects relevant to the activities (e.g., the effects of increased fire on covered species).

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Chapter 10: Monitoring and Adaptive Management
10.0

Introduction
10.0.1 Roles and Requirements for HCP Monitoring Programs
10.1 Monitoring
10.1.1 Monitoring for Baseline Information
10.1.2 Effectiveness Monitoring to Support Ongoing Conservation Decisions
10.1.2.1 Development of Competing Hypotheses and Conceptual Models
10.1.3 Reporting Compliance with Permit Terms and Conditions
10.2 Steps to Developing a Monitoring Program
10.2.1 Frame the Problem
10.2.2 Design the Monitoring
10.2.3 Implement the Conservation Program and Learn
10.2.4 Changes to the Monitoring Program
10.3 Evaluation
10.3.1 Dealing with Uncertainty in the Evaluation Process
10.4 Reporting and Compliance Evaluation
10.4.1 Data Sharing
10.4.2 Technology and Reporting
10.4.3 Outputs from Monitoring and Evaluation in Annual Reports
10.4.4 Evaluating HCP Compliance
10.5 Adaptive Management
10.5.1 How to Incorporate Adaptive Management into an HCP
10.5.2 Uncertainty in Management Decisions
10.5.2.1 Accounting for uncertainty
10.5.3 Oversight Committees
______________________________________________________________________________
10.0 Introduction
Monitoring and reporting are mandatory elements of all Habitat Conservation Plans (HCPs) (50
CFR 17.22, 17.32, and 222.307; 65 FR 35242 [June 1, 2000] (see the HCP Handbook Toolbox).
When properly designed and implemented, they should provide us with the information we need
to determine whether or not:
● a permittee is in compliance with their incidental take permit and HCP,
● progress is being made toward meeting an HCPs biological goals and objectives,
● the HCP’s conservation program is effective at minimizing and/or mitigating impacts,
and
● there is a need for adjusting measures to improve the HCP’s conservation strategy.
The scope of an HCP’s monitoring, reporting and adaptive management program should be
commensurate with the scope, duration, and certainty of the HCP's conservation program and
project impacts. Monitoring programs for large-scale or regional planning efforts may be
elaborate and track more than one component of the HCP (e.g., habitat quality or collection of
mitigation fees). Conversely, monitoring programs for HCPs with lesser impacts of short
duration might only involve filing simple reports that document whether the HCP has been
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implemented as described. The Services must help with the development and approval of
monitoring plans for HCPs. Many of the recommendations provided in this chapter are to
provide an example of what a monitoring program could aspire to be, as appropriate.
To learn as much as possible from monitoring programs and to improve management actions, the
two must be integrated. The integration of these two parts of an HCP’s conservation program is
essential to the success of them both. As discussed in depth in Chapter 9, the conservation
program must be oriented toward achieving biological goals and objectives. The monitoring
program must help inform us if those biological goals are being met to improve our
understanding so we can improve future management actions.
Many of the concepts in this chapter are being promoted not as requirements that every plan
must do, but as ideas, that if followed will allow for more efficient learning, which will lead to
better management decisions, which will lead to more efficient accomplishment of goals and
objectives. Ideally, the Services and the permittee will work in partnership to figure out what to
monitor and how to evaluate the HCP. This team-based approach can take advantage of the
resources and knowledge of all parties to efficiently and effectively meet goals and objectives.
10.0.1 Roles and Requirements for HCP Monitoring Programs
The Endangered Species Act (ESA) emphasizes the necessity for “reporting requirements… for
determining whether [incidental take permit] terms and conditions are being complied with”
(section 10(a)(2)(B)(v)). An applicant’s HCP must include steps to monitor the effects of take
(50 CFR Part 17.22(b)(1)(iii)(B), 17.32(b)(1)(iii)(B), and 222.307). We interpret this to mean
HCP monitoring programs must: provide the information necessary to assess compliance and
project impacts, and verify progress toward the biological goals and objectives. However, with
thoughtful planning, HCP monitoring programs can speed up the learning process and increase
the efficiency of management actions in meeting goals and objectives.
Ideally, the Services and the permittee will work in partnership to develop the monitoring
program and to implement, evaluate, and adjust the monitoring program and management
actions. The Services should provide technical assistance to the applicant on the development,
implementation and evaluation of monitoring results. The Services should also provide data and
help share information to ensure the conservation community can benefit from it. This teambased approach can take advantage of the resources and knowledge of all parties to efficiently
and effectively meet goals and objectives. Ultimately it is the applicant’s responsibility for
developing the monitoring program, implementing the monitoring program, and evaluating the
results to track progress in achieving goals and objectives.
When HCPs are integrated with other permits, the Services and the applicant should coordinate
the HCPs monitoring efforts with other permitting programs. Projects that require another permit
will likely have compensatory mitigation and monitoring requirements that if coordinated with
an HCP, could provide additional funding and other resources for conservation and could
provide efficiencies with the two permit programs. To improve efficiency of monitoring efforts
and to minimize conflicts with other permit programs or other agencies, it may be prudent to
coordinate early in the HCP development process.

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10.1 Monitoring
Monitoring should be viewed as an integral component of the HCP’s conservation strategy, not
as a separate piece. Monitoring goals should be explicitly tied to the hierarchy of goals and
purposes of the HCP. Clearly defined monitoring goals and objectives will drive the usefulness
of the monitoring program.
We use monitoring results to assess the status of systems or populations and efficacy of
management and restoration efforts. They can provide early warning of impending threats and a
basis for understanding and identifying meaningful change in natural systems.
The HCP monitoring program can include some of the following aspects:
● identify specific monitoring objectives;
● evaluate competing hypotheses about the effectiveness of management actions where
effectiveness would be highly uncertain;
● assess the state of the system or species in the plan area;
● provide a way to track progress toward meeting biological goals and objectives, and
general compliance with the HCP’s conservation strategy (including any avoidance or
minimization measures to be implemented);
● focus on crucial information needed to resolve uncertainty and improve management
effectiveness;
● explicitly show monitoring data’s purpose and use in the adaptive management processes
established in the HCP;
● make data and reports transparently available to the public using existing information
systems;
● track implementation of covered activities to ensure the effects of those activities
analyzed in the HCP, the National Environmental Policy Act (NEPA) document, and the
Services’ decision documents remain accurate; and
● increase understanding of the system being monitored.
Collecting detailed information is not helpful in and of itself—data needs to be collected with a
purpose in mind. Consultation with a statistician is recommended to maximize sampling
efficiency. Nichols et. al. 2006 make a strong case for designing a monitoring and
implementation program based on hypotheses and associated models of system responses before
management actions are implemented instead of designing monitoring programs without laying
out possible system results before implementing the management actions. They argue monitoring
that collects data without a specific purpose is an extremely inefficient way to gather information
for improving management practices. Understanding the effectiveness of management actions
means we have to get updates on the status of the system or species in mind, which will allow us
to update our models or understanding of how the system works (by proving or disproving our
hypothesis about effects of management actions and system function).
The development of a monitoring program should be tailored to answer specific questions
needed for the decisions that need to be made. What are the decisions? What are the
consequences of uncertainty? These are key questions to think about when developing the
objectives of an HCP monitoring program.
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Monitoring and reporting can be divided into three categories for HCPs:
● monitoring for baseline information,
● effectiveness monitoring to support ongoing conservation decisions, and
● monitoring to evaluate compliance with permit terms and conditions.
10.1.1 Monitoring for Baseline Information
Resist the temptation to ask for more data than is necessary for the purposes of the HCP
monitoring program, even though it might provide interesting information about the biology of
the covered species. Baseline information about abundance or distribution in a plan area may or
may not be critically important for the HCP, depending on the specific decisions to be made.
There are many cases where baseline information collection is critical to developing a
meaningful conservation strategy or deciding which management action should be implemented.
You may need more baseline information during plan development because of circumstances
such as: to assess which species occur in the plan area, to identify areas to avoid for impacts, to
identify areas that are important to conserve, to identify areas where more research is needed,
etc.
You may also need more baseline information during plan implementation because you need key
information about species occurrence or some form of habitat conditions to make a management
decision.
In some instances, there’s enough existing information to support planning or implementation
decisions. For example, recent surveys revealed an ESA-listed species occurs in the plan area, so
if the decision is whether to cover the species or not, the information on hand may be adequate.
However, if the decision is about where development could occur and that species was critically
imperiled (where the loss of even one individual was unsustainable), then focused surveys to
document more precise occurrences may be warranted for the decision.
10.1.2 Effectiveness Monitoring to Support Ongoing Conservation Decisions
HCP monitoring programs should help the permittee and the Services decide which management
actions are most effective in meeting HCP goals. At its best, this is done by developing
competing hypotheses about how the system will respond to management actions taken through
implementation of the conservation strategy.

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Figure 10.1a: The Importance of Monitoring to Support the Learning Process of
Management Decisions

10.1.2.1 Development of Competing Hypotheses and Conceptual models
In most cases, management decisions are made with uncertainty: to help us learn from our
management actions and to reduce uncertainty, we should develop detailed hypotheses and
associated models of system response to those management actions. This information can be
collected from expert opinion, research, gray literature, published works, or other useful sources.
While decision can be made without developing hypotheses, it will help speed our learning
process and increase efficiency of management actions from what we learn.
Development of multiple hypothesis can keep us open to new ideas and keep us from ignoring
information that may be important. Focusing on a single hypothesis may cause us to miss the fact
that multiple interactions may act together, to account for the results. For more on how to
develop competing hypotheses, go to the HCP Handbook Toolbox.
It’s critical to decision making to organize our information in a manner that follows a consistent
and clear process that:
●
●
●
●

captures our understanding,
makes our assumptions clear,
highlights areas of uncertainty, and
identifies critical gaps in our understanding.

Conceptual models can be a template or a process that documents our understanding of how the
species or system works. Framing our thinking and understanding in a conceptual model, allows
us to show different hypotheses about specific system or species functions that can be tested
through monitoring. Conceptual models are a key foundation upon which the integrated
approach to development of goals and objectives, monitoring and evaluation, and adaptive
management systems are built. All of these tie into our understanding of the system and what we
are going to do about it to conserve species.
Hypotheses about responses of populations or systems to management actions can involve many
interactions and may be difficult to develop, but they are important. These models and their
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assumptions about system function guide our management efforts and focus our monitoring. The
focus that comes from laying out our assumptions is essential to development of an efficient
management and monitoring program. Even if we begin taking management actions with system
models that have a high degree of uncertainty, laying out our hypothesis of system function
explicitly will give us something to test and learn from to improve future system models.
You can think of a system model as a hypothesis of how the system works. Where there is
uncertainty about how the system works, you may need multiple models to test. A conceptual
model may be an entirely adequate form to develop the hypothesis. The focus of the system or
population models should be on those influences that are thought to be primarily responsible for
the present state of the system or population.
Keep the following in mind when developing conceptual models about system function and
hypotheses about management effects:
● They should not capture every detail.
● Focus on the major influences of the system or population.
● Multiple models may be strung together rather than using one complicated model—
models are difficult to make comprehensive and remain useful.
● Models can be conceptual and qualitative (see discussion on conceptual models) but need
to be illustrative of your assumptions.
● Develop the simplest model possible that represents the key population or system
function processes/influences.
There are many good sources on developing conceptual models. Below are examples that may be
useful for your HCP. Because different types of models are used for different reasons, you
should understand the purpose of the conceptual model before you begin to develop one for your
purposes.
Figure 10.1b: A Management-Oriented Conceptual Model

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You can use a management-oriented conceptual model to illustrate how the conservation strategy
affects species or habitat of concern, and the stressors that affect them.
From: Atkinson et. al., 2004
Figure 10.1c: State-and-Transition Models

You can use a management-oriented conceptual model to illustrate how the conservation strategy
affects species or habitat of concern, and the stressors that affect them.
From: Gross, 2003.

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Figure 10.1d: An Influence Diagram

An influence diagram is a simple conceptual model that illustrates the ‘big picture’ associated
with a problem and also indicates where decisions or actions could be applied. The objective of
the action in the example above is to sustain the moose population (diamond). Factors are in
rounded rectangles; they are the things that contribute to the objective, including chance or
stochastic variables (weather) as well as factors that may respond to actions or decisions (habitat
quantity and quality, disease, predator populations). Potential management actions are shown as
rectangles.
From: Designing a Monitoring Program A Road Map for Planning a Biological Monitoring
Program. Reynolds et.al., 2015.

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Figure 10.1e: Nested Conceptual Model

Models can be nested to accommodate different levels of detail while still allowing you to see
the big picture. This hierarchy includes an overarching multiple habitat model, a natural
community assemblages model, various sub-models such as on processes (vegetation and foodweb), and specific covered species.
From: Atkinson et. al., 2004,

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Figure 10.1f: Example 1-Species-Focused Conceptual Model

Species-focused conceptual models vary in complexity, but are a way to simply show a species
life-cycle and the factors that may affect each stage.
From: Atkinson et. al., 2004.

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Figure 10.1g: Example 2- Species-Focused Conceptual Model

A species-focused conceptual model, such as this one can easily transition into a simple
spreadsheet model to outline the life-cycle of a species or population.

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10.1.3 Reporting Compliance with Permit Terms and Conditions
In general, permittees report compliance, and the Services must evaluate if the reporting
demonstrates compliance with permit terms and conditions.
Our staff must answer a key question: did the permittee implement actions consistent with the
permit terms and conditions? We may need to follow up with field visits to verify the reports the
permittee submits. The use of remote sensing or aerial imagery may be an efficient approach to
verifying compliance.
We should keep permittee annual reports and write a memo to the file every year that describes
our assessment of the permittee’s compliance with the terms and conditions. Where lessons can
be learned from management experience and results of monitoring or research, we should
consider writing a “lessons learned” white paper to share with anyone who can benefit from it.
Sharing these experiences will speed up learning and information exchange to improve
conservation in other places and situations.
What must the permittee be in compliance with?
The report and memo should explain how the permittee is in compliance and include information
on:
●

implementing the HCP (e.g., avoidance, minimization, and mitigation measures that
occur within the time period),
● specific reporting measures in the permit, and
● progress towards achieving the biological goals and objectives, as described in the HCP.
Ultimately the permittee must meet the biological goals and objectives. Developing a
schedule of progress with interim goals in the HCP is a useful way to ensure there are
clear expectations for progress and compliance with the permit.
More information about reporting is in section 10.4.
10.2 Steps to Develop a Conservation and Monitoring Program
This discussion relies on the draft report “A Road Map for Planning a Biological Monitoring
Program” prepared by the FWS for the National Wildlife Refuge program. What is presented
here is an aspirational example of components a monitoring program might include.
Figure 10.2a, is a quick summary of the sequence and steps that should be considered when
developing a conservation program, including designing a monitoring program (steps 5-8),
implementing the monitoring program (steps 8-9), and implementing the adaptive management
program (step 10).

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Figure 10-2a: Sequence and Steps for Designing a Conservation Program

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10.2.1 Frame the Problem
Step 1: Develop the HCP biological goals and objectives within the hierarchy of goals and
purposes (see chapter 9). As a part of our problem definition, we should have defined:
● the temporal and geographic scope of the problem (HCP plan area);
● management actions (conservation measures) that have been identified to address the
problem;
● who decides what actions to take (and when);
● decision constraints; and
● key uncertainties where the value of information is high enough that monitoring is worth
dedicating funds to reduce uncertainty. Reducing these uncertainties (management
effectiveness, key information) is a large part of what the monitoring effort aims to
address.
Describe the biological goals and objectives of the HCP (see chapter 9). Goals describe the
desired future conditions of an HCP. Objectives are incremental and measurable steps we take to
achieve the HCP goals.
Step 2: Develop conceptual models of the system components. To design monitoring, the
conceptual model should make explicit the linkage between the system conditions/variables and
the drivers of those conditions. We can use the conceptual system models as a hypothesis for
how the system works and as a foundation upon which a monitoring program is built to
prove/disprove or reduce key uncertainties needed to improve management actions. Information
gained through monitoring should improve our understanding of how the system works and
evaluate management effectiveness in moving the system toward the desired condition
(accomplishing goals and objectives). The size and complexity of the conceptual models should
scale with the size and complexity of the threats and of the plan, and with the available
information about the species or system.
Step 3: Identify potential conservation measures. Conservation measures describe specific
actions that the permittee will implement to achieve objectives in support of the goals.
Conservation measures can be any of the avoidance, minimization, or mitigation actions
identified to meet the HCP goals and objectives (e.g., restoring habitat, removing non-native
species, etc.).
Step 4: Evaluate management options and make decisions. Evaluate the range of decision
alternatives, project the outcome of each alternative action, use conceptual models to identify
and understand the importance of key uncertainties, assess risk tolerance for potential
consequences of decisions, account for future impacts of present decisions, and account for
constraints. Decide which option best meets the desired outcome.
10.2.2 Design the Monitoring
Step 5: Determine the monitoring approach needed and what will be monitored. Monitoring
should be focused on precisely the information needed to support conservation management
decisions. The broad kinds of answers we need from a monitoring program include: How well
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are we doing in meeting biological goals and objectives? How can we improve effectiveness of
management actions? What information do we need to support or improve future management
decisions to meet goals and objectives?
The management decisions in question and the key uncertainties must be clearly articulated, as
these will guide what is monitored. When thinking about the management decisions in question,
we should evaluate information gaps or uncertainties to decide if the value of obtaining that
information is important enough to invest resources to reduce the uncertainty. It may not be. For
more information about how to analyze the value of information, the 2015 book Decision
Making in Natural Resource Management: A Structured, Adaptive Approach by Conroy and
Peterson is a good reference. In addition, the short chapter on “Tracking Action Effectiveness
and Ecological Response” in Climate-Smart Conservation: Putting Adaptation Principles into
Practice is a valuable resource (Stein et. al., 2014, chapter 11).
Compile and examine existing information and seek the help of experts to reduce or remove the
need to conduct certain monitoring activities. In some instances the information may already be
available or studies may have been conducted in the area/topic of concern. Making use of
existing information can reduce monitoring needs, time, and costs.
Monitoring purposes can generally be put in two categories—monitoring for baseline
information and monitoring of effectiveness to support active management. The uncertainty that
needs to be addressed will drive which of these two is pursued for any monitoring question.
Monitoring for baseline information gathers information needed before a management action is
taken (e.g., establishing baseline occupancy information, providing key information upon which
a management action is based, etc.). Monitoring for active management generally occurs during
and after a management action is taken (e.g., evaluate the effectiveness of the action, adaptive
management, etc.). How long the monitoring occurs depends on the information that is needed.
For example: if monitoring to evaluate effectiveness of a restoration action, monitor for a
duration sufficient to demonstrate the project has met ecological performance standards.

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Figure 10.2.2a: Decision Tree to Assist with Selecting the Appropriate Monitoring Type

The FWS’s 2013 “National Wildlife Refuge System’s Survey Protocol Handbook” is a great
resource for designing standardized survey protocols (see the HCP Handbook Toolbox).
The conceptual models developed in step 2 can be helpful in determining what will be monitored
to measure success. How well are we doing broadly or from a specific action in meeting
biological goals? The conceptual models serve as hypotheses for how the system functions and
how the system is expected to respond to management actions. This is the focus of what will be
monitored and will help determine success of our actions and to improve future decisions.
When selecting what to monitor, consider these questions:
●

What objects or individuals will be measured?
The decision of what to measure will affect cost, drive the sampling design, and
may constrain the statistical analysis. Is it possible to consistently detect the
object to be measured? If not, it may not be a good measure for the sampling
design.
It may not be possible to measure everything, in particular for large-scale plans.
Focusing monitoring on the key uncertainties and providing the information to
support decision making is helpful to develop a program of practical scale and
cost.

● What specific attribute of the object or individual will be measured and how?
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Table 10.2a: Examples of Attributes and Ways in Which They Can Be Measured
Attribute

How attribute could be measured

abundance

complete counts, plot sampling, mark -recapture, distance
sampling, occupancy models

occurrence

plot sampling, occupancy models, indirect counts (hair traps,
photo traps, etc.)

reproduction rate

complete counts or plot sampling to estimate: number of
births/unit of time/average population

sex ratio

complete counts or plot sampling

survival rate

complete counts, plot sampling, mark -recapture

In addition to the ideas in Table 10.2a, depending on what the question is, habitat or indices of
species/population health may be an appropriate way to assess the status of a population or
attribute. It’s important to understand the relationship between the habitat or indices to the
population or attribute you’re analyzing. We can’t rely on this relationship without
understanding it. In addition, we need to consider whether and how habitat-species relationships
may be altered in relation to climate change and its effects, e.g. habitat conditions may change
substantially. The types and abundance of predators and competing species may be likely to
change over time and those changes can influence the status and trend of measures of attributes
of species covered by an HCP.
Although oversimplified for this chapter, the examples below focus on the importance of
validating our assumptions about relationships when using habitat or indices to assess the status
of a species.
Example 1:
Assumptions: Pool filling depth is a good indicator of health of species x, so measuring pool
depth is a good way to assess the status of species x in the area.
Validation needed: Study to understand the relationship between pool filling depth and status of
species x.
● Are they related? Is the relationship linear between pool depth and health of species x?
Are there thresholds of pool filling that affect the status of species x?
● Does a full pool guarantee good status for species x?
● What does a half full pool mean to the status of species x?
● Are there other factors that need to be considered? For example, due to climate change,
pool depth alone might no longer be a suitable indicator for species x if it has water
temperature limitations for part of its life cycle. If that’s the case, pool depth in
combination with a certain range of water temperature may be important for species x.

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Example 2:
Assumptions: The status of two species are closely taxonomically related; therefore, monitoring
the status of species 1 is adequate to understand the status of species 2.
Validation needed: Study to understand the relationship between the status of both species.
● How closely related is the status of both species?
● Are there conditions where their status is closely related (e.g., average weather)?
● Are there conditions where their status is not closely related (e.g., drought conditions and
species 1 is more drought tolerant), or is species 1 in a location experiencing or likely to
be impacted by spread of non-native invasive species, increases in competitors, or other
responses to climate change or other stressors?
● What is the appropriate level of effort for monitoring?
In general, there are two ways to determine the appropriate level of effort for monitoring:
●
●

Focus on the statistical analysis and use the needs of the analysis (e.g., sample size)
to determine the level of effort needed for monitoring
Focus on what is feasible for monitoring and adjust the expectations regarding
anticipated results of statistical analysis to fit the expected level of data collection.

Focusing on the data needs for the statistical analysis is the more robust way to approach this
decision. If more accurate data is needed, focusing on statistically robust methods is the preferred
approach.
Step 6: Design the survey, the analytic approach, and the data management system: Integration
of all of the above is essential in executing a useful monitoring program that yields information
to improve management actions. If a statistician has not been consulted by now, this is probably
a good time to bring one in as the world of analysis can be overwhelming.
As part of step 6, a data management and delivery plan should be developed. This plan is critical
to ensuring data is collected and managed in a way that it can be efficiently accessed and used.
See Figure 10.2c and the HCP Handbook Toolbox.
Figure 10.2c: U.S. Geological Survey (USGS) Data Lifecycle Diagram

As shown in the above diagram there are many aspects to data management, each is important,
and how they will be handled should be described in each HCP’s data management plan.

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10.2.3 Implement the Conservation Program and Learn
Step 7: Collect and manage data and implement management actions. Knowing what data will
be collected, why data is being collected, and how data is being collected is crucial in making the
data useful. Documenting the implementation of management actions (who, what, when, why,
where, how) will be useful for repeating successful actions and understanding why those actions
weren’t effective in accomplishing the desired outcome. It could be the action was correct, but
implemented in a manner that was ineffective, so documentation of how that action was
implemented may be key to understanding the results later. Thus, the monitoring design and
collection of data will need to include relevant information about changed circumstances that we
expect will occur, and information about unforeseen circumstances, since these could account for
or contribute to understanding the relationship between the HCP management actions and their
effects, especially if the effects are not as expected.
Step 8: Analyze data and report results. Now that data has been collected in a certain way for a
certain purpose, we must analyze it to answer the question(s) for which it was collected.
Monitoring implemented for baseline information is used to understand fundamental questions
about how the system works or to establish a specific system state (e.g., how many of species x
are there in this area). Monitoring data collected to support active management decisions should
be collected and analyzed to evaluate the assumptions and hypotheses about the predicted system
response. Just as we monitor for a specific purpose to make better informed management
decision, reporting data in a way that is useful for managers to access them is very important!
The utility of the monitoring and evaluation effort will suffer if reports aren’t timely (within the
decision timeframe) or in a format that isn’t easy to use.
Step 9: Update models and plan action. Information gathered and analyzed must now be plugged
back into our conceptual and quantitative models to improve our understanding of the system
and how it responds to management actions. Updating the system models with the latest
information on what we have learned is important to improve future management decisions.
To check if the HCP is on track or why something may have succeeded or failed, you should:
●
●
●
●

consider your results in the context of your conceptual models,
review your assumptions of how the system works,
evaluate progress towards meeting goals and objectives,
review the conceptual models to determine if there are important factors that were not
included or monitored and that may have affected the outcome,
● identify and document what was learned about the system, and
● identify new information needs.
10.2.4 Changes to the Monitoring Program
One of the issuance criteria for an incidental take permit is that the applicant will assure adequate
funding to implement the HCP and respond to changed circumstances. This generally results in a
monitoring program developed at the same time as the HCP with an estimate of how much it will
cost to implement it. In some cases, years into HCP implementation, the permittee and the
Services may agree that the monitoring program is not on track to provide useful information to
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evaluate and provide the information needed to improve management decisions. What do you do
next?
For small scale plans, or plans that are short in duration, developing the monitoring strategy
during plan development may be feasible, but for regional plans or plans with long-term permits,
it may not be feasible. Adjustments to the monitoring program are inevitable and should be
planned for during HCP development.
For regional plans, consider writing a summary of the monitoring program, or a “monitoring
framework,” that outlines the general components of the monitoring program (not detailed or
specific monitoring protocols), including the biological goals and objectives and the estimated
costs of the monitoring program in the HCP. The detailed information about how to implement
the monitoring program could be developed as a companion document either when developing
the HCP or subsequent to permit issuance, depending on the plan and species. A process for how
the monitoring program will be developed and amended should be included in the HCP. Ideally,
changes to the monitoring program should be arranged so that they do not require permit
amendment (Chapter 17.4). The Services must be involved in the development of the monitoring
plan, and we have final approval before it is completed. How to make adjustments to the
monitoring program should be part of the original cost estimates (including inflation), so that a
plan amendment isn’t necessary. Keep No Surprises assurances in mind when developing the
HCP and monitoring program; we can’t come in later and require more. We should work with
the applicant to develop an appropriate monitoring program that can be adjusted within the
bounds set up by the HCP to meet the needs of the HCP.
10.3 Evaluation
The evaluation of monitoring data should be done as a partnership between the Services and the
applicant. As focused monitoring data becomes available, it must be analyzed. As with the
selection of monitoring methods, you should make sure the level of analysis matches the
information needs to support better decision making. You should determine the level and type of
analyses deliberately before monitoring begins and evaluate them as the monitoring program is
being developed. Don’t leave it until the end when you have a pile of data sheets that you now
must figure out what to do with. Understanding the analytical framework will make it easier to
observe and understand changes, solve problems, and make project improvements.
Any statisticians, analysts, data managers, and data collectors you involve in the process must
understand the data being collected, stored, and how it will be analyzed. Adjustments are often
needed to monitoring and analysis, and ensuring everyone understands the entire data cycle is
valuable as each party has a unique perspective and insight for keeping the effort on track.
When you are preparing for and executing the data analyses, it is important to ensure continued
involvement of the entire project team. Input from outside experts could also give useful
perspective and insight into your analyses of monitoring results.
Depending on the type of data that you have and your information needs, these analyses can
range from formal statistical studies to simple qualitative assessments. Just as with developing a

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monitoring program, finding the appropriate analysis to answer the question at hand is essential.
The range of analytical techniques is staggeringly big and ever growing.
Key to the success of the evaluation process is thoughtful design of the analysis that occurs
before the monitoring. Issues like sampling design and sample size can determine what can be
evaluated.
Keep the following suggestions in mind when considering the evaluation phase of an HCP:
● Consult a statistician early in the development of a monitoring program.
● Efficient learning can be promoted by focused, hypothesis-driven studies vs. unfocused
exploratory evaluations where data is collected without clear purpose.
● Correlation is not the same as causation. Understanding causation often requires focused
studies.
● Randomization of sampling points can help remove sampling bias.
● Stratification of sampling design by habitat type or priority level will improve efficiency
in uncovering trends and inferences.
● Opportunistic sampling can complement systematic sampling efforts.
● Species surveys have imperfect detection probability; factoring in those that are missed
can be important for evaluation of population trends.
● Traditional evaluations may not always work. For example, using a “proportion area
occupied” approach may get enough information about population status with less effort.
● Consider conducting a power analysis to determine the minimum sample size needed to
detect trends with an acceptable level of confidence.
● Thresholds suffer from:
○ uncertainty in establishing appropriate thresholds,
○ needing management before the trigger is tripped,
○ over-reaction if a threshold is exceeded, and
○ temptation to manage to the threshold rather than more biologically valid goals.
● Statistics and models should assist with decision making, but are not a replacement for
common sense.
● Take advantage of extreme circumstances to learn more about the system. How often
does a major flood event happen?
● Take advantage of monitoring data available from efforts that are at a larger scale than
the HCP and relevant to understanding conditions in the HCP area. For instance,
monitoring at landscape scales is increasingly common as a means of tracking and
understanding changes in habitat and plant-animal species composition, distribution, and
abundance in relation to climate change. If such large-scale monitoring encompasses the
HCP area (or is relevant for other reasons), it may be very useful for design, evaluation,
and interpretation of the HCP monitoring.
10.3.1 Dealing with Uncertainty in the Evaluation Process
Uncertainty is a given in any ecological condition and is important to address in the evaluation
process. However, there is not a prescription that will completely solve the challenges of
uncertainty.
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As an example of how to deal with uncertainty, if there is a high degree of uncertainty associated
with evaluation of impacts, there may be two choices the Services and the applicant should
consider:
1. increasing levels of monitoring, or
2. making assumptions of impacts that err towards the highest potential impact.
Improved confidence in survey and evaluation data can reduce the need for assumptions, but
may come at the cost of increased surveys. Balancing these factors is tricky but important. It is
important to be transparent about sources of uncertainty and any relevant assumptions made in
the evaluation process.
10.4 Reporting and Compliance Evaluations
An important element of annual reporting is for the permittee to demonstrate compliance with
the HCP. Regulations at 50 CFR 13.45 and 222.301, provide the authority for us to require
periodic reports unless we specify otherwise in the incidental take permit. As shown in Figure
10.4a, our field office staff must review reports to ensure they contain the information required
to ensure the permittee is complying with the HCP and terms and conditions of the permit, and to
evaluate whether or not the HCP is meeting biological objectives. The data and report
requirements should provide the information needed to unambiguously monitor and enforce
permit compliance.
Figure 10.4a: Services Role in Evaluating Annual Reports

Typically, all reporting requirements should be described in the HCP and the permit. In most
cases the reporting requirements in the permit are the same as those found in the HCP. The
Services and the applicant should determine and specify during HCP development the level of
detail required in the reports. Coordinate timing of HCP reports with other external reporting
requirements to help streamline multiple requirements that permittees may have, such as those

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for State wildlife agencies. We should ensure that the reporting requirements are tailored for
documenting compliance with the incidental take permit.
Information and data that the permittee shares typically occurs annually, however it can be more
or less frequent depending on the plan. Some plans have reporting requirements that are more
frequent early in implementation (when many of the impacts and conservation actions are taken)
and less frequent (as impacts and conservation actions decrease). Consider sharing the following
information:
1. Summaries of or a list of the covered activities implemented.
2. Quantify the impacts from covered activities.
3. Quantify and describe the extent of take for each covered species as a result of the
covered activity.
4. Description how the conservation commitments of the HCP were implemented
and their results.
5. Description of the monitoring results and survey information.
6. Description of any circumstances that made adaptive management actions
necessary and how it was implemented.
7. Description of any changed or unforeseen circumstances that occurred and
explain how they were addressed.
8. Summarize funding expenditures, balance, and accrual.
9. Summarize any minor or major amendments.
10. Description of any non-compliance issues and how they were resolved.
11. Include any other information as required by the permit or HCP.
10.4.1 Data Sharing
The Services and applicant should transmit data per the data management and sharing plan that
was developed early in the process. Data shared should include any relevant information for
helping us understand compliance, habitat conditions, and the status of covered species. This
data is not only important to document compliance, but it is also useful in linking conservation
efforts across bigger scales.

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Table 10.4a: HCP data sharing requirements
Data to be shared*

When to share data
draft HCP

final HCP

annual
update

required
element

Plan area boundary

X

X

Conservation areas

X

X

X

X

Impact areas

X

X

X

X

Permittee HCP tracking and reporting

X

X

Species impacts (what was impacted-

X

X

X

X

X

habitat/individuals)

Species survey information (locality,

X

X

presence/absence, abundance, etc.)

Habitat restoration data
Models inputs and outputs

X
X

X

*not all elements will be developed for each plan.

Traditionally, HCP annual reports come in paper copy or as a PDF at roughly the same time each
year. These reports demonstrate compliance and lay out basic plan implementation information.
However, we can do more with the information if it is collected and transmitted with the full data
lifecycle in mind, not just that for one particular HCP, but also for regional conservation efforts
for the species.
● All data delivered to FWS should have fully compliant metadata that meets Federal
Geographic Data Committee (FGDC) or ISO 19115 metadata standards
● What are the survey protocols? Are there other ongoing efforts to monitor the same
species? Are the methods compatible with this HCP?
● How is the data going to be housed? Can data collected for this HCP be combined with
data gathered from other ongoing conservation efforts?
● Was there geospatial information gathered for this HCP? How/where is it housed?
● Is the data going to be analyzed? What techniques will be utilized? Where will the
analysis be kept? Can it be combined with other ongoing analyses? How robust is the
analysis? Could it be improved by combining with other ongoing efforts?
● Be especially careful if the Services are going to replicate analyses independently of the
applicant (or their consultant). In this case, more data will likely be transferred and more
specific information about how the analyses were conducted should accompany the data.
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The Services and applicant should think carefully about the full data lifecycle for how and what
the permittee will collect, and the plan should identify, at a minimum, the required data
deliverables. Consider the following:
● If there are multiple efforts ongoing in an area that cover the same species or habitat
types, is there a way to link the efforts through standardized protocols and a centralized
database?
● Has a data management plan been developed (see the HCP Handbook Toolbox)? How
can data be shared with others?
● Are there adjoining HCPs in an area, or other relevant efforts? Is there a benefit for them
to work together on conservation and data collection/housing/ analysis?
In some instances linking the monitoring to ongoing monitoring efforts outside the plan area will
allow for better quality information at reduced effort and cost. USGS has prepared a useful
summary of the full data life cycle (see the HCP Handbook Toolbox).
Helpful Hints:
● Data are valued assets: We need to manage data over their entire lifecycle beyond the
immediate need.
● All delivered datasets should have fully compliant metadata.
● The goal of managing over the data lifecycle is to eliminate waste, operate efficiently, and
practice good data stewardship
● By linking to other efforts, we can be more efficient and improve conservation efforts.
● A good data management plan can help organize and plan for all phases of the full data lifecycle
(see the HCP Handbook Toolbox) for additional materials pertinent to management plans).

10.4.2 Technology and Reporting
The emergence of cloud-based data housing opens up a world of options for sharing data and for
improving how information collected or developed in the HCP can be consumed by the Services
and partners. Systems like USGS ScienceBase (see the HCP Handbook Toolbox) present
opportunities to house and manage data online in a Federal data repository where it can be made
discoverable and usable by other applications such as data.gov. Web map services like Databasin
and ArcGIS (see the HCP Handbook Toolbox) offer online map making and collaboration
services. These tools should be an integral part of sharing data between the permittee and the
Services and increasing transparency.

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Figure 10.4b: Data Sharing and Collaboration Using Cloud-Based Services

Ideally, the Services office (Regional or Field) will have developed a system for the
applicant/permittee to directly enter data through an online portal or an online database. Setting
up an online data system with proper data quality controls, allows for easy information exchange,
facilitates coordination with other HCPs and protected areas during plan development and
implementation, and allows us to roll up of many spatial analyses into landscape level planning
for species and ecosystems.
10.4.3 Outputs from Monitoring and Evaluation in Annual Reports
Annual reports must document the status of plan compliance including:
●
●
●
●

land acquisition/protection activities implemented,
management activities implemented,
monitoring activities implemented, and
funds expended for implementation.

Annual reports should document the effectiveness of plan implementation in meeting stated
biological goals and objectives, including:
● status and trends of resources (e.g., quantitative data on covered species, biodiversity,
vegetative composition and structure),
● status and trends of known threats, and
● effects of management actions in achieving the desired condition.
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Annual reports should document targeted research or studies implemented to provide
information we need to support management decisions including:
● resolving critical uncertainties to improve understanding of species or system function,
and
● results of experimental management treatments.
10.4.4 Evaluating HCP Compliance
It is incumbent on the Services to read and evaluate the annual reports that the permittee submits.
Field office staff resources should be dedicated to compliance monitoring, especially for the
larger HCPs, including the development of guidance for site visits by staff on a regular schedule
and the use of periodic independent audits for compliance reporting. Field offices should develop
HCP monitoring plans to determine staff requirements and to ensure the actions are assigned to
appropriate individuals. They may include line item budget items to ensure resources are
allocated for this important task (Chapter 17.2).
See Chapter 17.6 for more information about what to do if the permittee is out of compliance
during plan implementation.
Permittee-conducted monitoring should also include checks on when and if changed
circumstances have been triggered. For plans that have a long permit duration, the status of fire,
drought, floods, etc. provide context for implementation of the entire conservation program.
It is important to keep in mind that each HCP is different, and the approach to evaluating
compliance of HCP implementation varies between HCPs. Complex programmatic plans may
involve ongoing coordination with oversight committees, while a simple single-family lot
development may only require a one-time confirmation of an in-lieu fee payment.
10.5 Adaptive Management
We will consider adaptive management as a tool to address uncertainty in the conservation of a
species covered by an HCP. Whenever an adaptive management strategy is used, the approved
HCP must outline the agreed-upon future changes to the operating conservation program. 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 HCPs that would otherwise pose a
significant risk to the species at the time the permit is issued due to significant data or
information gaps.
Adaptive management has traditionally been viewed and designed for large-scale systems.
However, in some situations we may want to retain the flexibility of addressing uncertainty
through an adaptive management strategy at a smaller scale. In such situations, an adaptive
management strategy could take many forms including creating a simple feedback loop so that
management changes could be implemented based on results of the HCP’s monitoring program.

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Possible significant data gaps that may require an adaptive management strategy include, but are
not limited to, a significant lack of specific information about the ecology of the species or its
habitat (e.g., food preferences, relative importance of predators, territory size), uncertainty in the
effectiveness of habitat or species management techniques, or lack of knowledge on the degree
of potential effects of the activity on the species covered in the incidental take permit. Often, a
direct relationship exists 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, even though a cautious approach may limit the number of alternative strategies
that may be tested.
A practical adaptive management strategy within the operating conservation program of a longterm incidental take permit will include milestones that are reviewed at scheduled intervals
during the lifetime of the incidental take permit and permitted action. If a relatively high degree
of risk exists, milestones and adjustments may need to occur early and often. Adaptive
management should not be a catchall for every uncertainty or a means to address issues that
could not be resolved during negotiations of the HCP. There may be some circumstances with
such a high degree of uncertainty and potential significant effects that a species should not
receive coverage in an incidental take permit at all until additional research is conducted.
Figure 10.5a: Conceptual Adaptive Management Process

What exactly is adaptive management? In its simplest form adaptive management is learning by
doing, but that definition sells short the process and thought that goes into it. Adaptive
management is more than monitoring and changing management actions; as the 2009,
Department of the Interior Adaptive Management Technical Guide (see the HCP Handbook
Toolbox) describes it:
An adaptive approach involves exploring alternative ways to meet management
objectives, predicting the outcomes of alternatives based on the current state of
knowledge, implementing one or more of these alternatives, monitoring to learn about the
impacts of management actions, and then using the results to update knowledge and
adjust management actions. Adaptive management focuses on learning and adapting,
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through partnerships of managers, scientists, and other stakeholders who learn together
how to create and maintain sustainable resource systems.
The outcome is better management decisions, but the process of learning and making more
informed future decisions is what adaptive management is all about.
Increasing attention is being given to understanding, adjusting, and applying the concepts of
adaptive management in the context of climate change and its effects (see Climate-Smart
Conservation, Stein et. al., 2014, and Informing Decisions in Changing Climate, National
Research Council, 2009). This may be particularly important in light of climatic conditions
changing at rates different than current and historical trends. We must evaluate if the expected
changes are significantly different enough to require more detailed modeling and responses than
if we assumed the past or current rate of changing continuing. In some cases, greater emphasis
on proactive adaptation management to alleviate the effects of a change climate may be more
efficient and effective than reactive management that takes place after impacts have occurred.
Before we issue a permit, there must be a clear understanding and agreement between the
Services and the permittee as to the range of adjustments to the management actions that might
be required as a result of any adaptive management provisions. We should work with the
applicant to develop, in advance, a mechanism for determining the magnitude of strategy change
that may need to be employed based on the results of the monitoring and the level of deviation
significance from the desired condition. This will help to ensure all parties are clear about what
might need to happen and can communicate and react at the appropriate time. Avoiding
misunderstanding and miscommunication is the best way to minimize compliance problems
(Chapter 17.6). Changes to the conservation program should be planned to minimize the need for
amending the permit (Chapter 17.4).
Not everything can be fixed through adaptive management. Deciding when to employ adaptive
management is an important step in the process. See Figure 10.5.
Figure 10.5: Employing Adaptive Management

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Adaptive management is best employed when the objectives are clear, but there are some
uncertainties in the science about how to reach those objectives. Structured decision making
requires a commitment to a rigorous process to analyze and make decisions. More information
about structured decision making is in Chapter 3, section 3.10. There is considerable overlap
between structured decision making and adaptive management. At their best, combining these
two processes can lead to a robust decision making process and set the stage for efficient
learning and improved decisions about how to proceed with management actions.
10.5.1 How to Incorporate Adaptive Management into an HCP
Much of what we need to develop an adaptive management approach relies on the integrated
approach to developing the HCP. This integrated approach is described in depth throughout this
Handbook and can be summarized in the following way:
1. Define goals.
2. Develop conceptual models to serve as hypotheses for how the system works and to
identify key uncertainties.
3. Evaluate management options.
4. Develop a monitoring and evaluation program that can answer questions to reduce
uncertainty.
5. Implement management action and monitoring.
6. Evaluate information and incorporate it into decisions to improve system models.
7. Use updated system models for future decisions.

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Figure 10.5c: Integrated Approach to Adaptive Management and HCP Implementation

This integrated approach to goal development, monitoring plan development, data evaluation,
and adaptive management is the key to each piece working efficiently to support the entire
conservation strategy and improve future decisions. See Figure 10.5c above.
Adaptive Management Triggers
The Services must work with applicants to specify thresholds that trigger implementation of a
particular adaptive management strategy or open reassessment of an adopted strategy. For
example, Montana's Native Fish HCP requires mitigation actions if stream temperature increases
by 1.0° C. When possible, the HCP should trigger specific actions that must be taken, not merely
provide a general review of strategies.

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10.5.2 Uncertainty in Management Decisions
Very few, if any, management decisions have 100% certainty. The adaptive management
framework allows managers to explicitly acknowledge uncertainty through our conceptual
models, and lays the foundation to evaluate the importance of those uncertainties and reduce
them when appropriate. In any decision, each variable is not equally significant, so focusing on
those variables that are significant, but have associated uncertainty, can focus models or
monitoring to reduce the uncertainties and make better management decisions.
10.5.2.1 Accounting for Uncertainty
There are many types of uncertainty that can influence the management of natural resources.
Some general sources of uncertainty commonly encountered in HCPs include:
● system process: limited understanding of how the ecosystem works
● effectiveness of management action: limited understanding of how effective the
management action will be in having the desired outcome
● basic biology: limited understanding of basic biological needs or functions of a species
● occupancy: limited information/understanding about species presence in an area
● survey strength to detect individuals/trends: uncertainty of accuracy our survey methods
have to capture information about species
● model uncertainty: uncertainty inherent in models, which are simplifications and involve
assumptions about processes and relationships
Each one of these sources of uncertainty can affect or obscure the quality of information that
goes into any decision-making process in an HCP. We need to identify these uncertainties so
they can be evaluated and reduced where appropriate.
Adaptive management can help us deal with uncertainty by explicitly recognizing it and bringing
it into the decision-making process. For example, for environmental variation, we can include
environmental conditions in the resource models and assign probabilities or ranges to those that
are relevant. This gives decision makers either a probability of the information being accurate or
a range of possibilities the variable is thought to cover. If the probability is low or the range is
wide, and this particular variable is extremely important, it can be factored into the decision
making when determining how to proceed.
A few steps worth considering when dealing with uncertainty are:
1. Identify sources of uncertainty through models or relevant logic structure.
2. Characterize each source of uncertainty by type.
3. Identify which sources of uncertainty are important enough where the value of obtaining
more information is worth the investment of staff time and funds.
4. Identify appropriate solutions for dealing with the specific type of uncertainty.
Also see Table 10.5a below.

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Table 10.5a: Dealing with Uncertainty
Type of uncertainty

Potential solutions for dealing with
uncertainty

Repeat
decision?

basic biology or system
-evaluate if those uncertainties are important to
function: limited understanding the decision-making process
of biological or system function -focus research before decisions are made to
resolve key uncertainty
effectiveness of management
OR
action: limited understanding of -implement management actions as an
how effective the management experiment with hypotheses about response,
action will be in having the
monitor and evaluate, update models
desired outcome

yes

occupancy status:
limited
information/understanding
about species presence in an
area

-evaluate if those uncertainties are important to
the decision-making process
-make assumptions about occupancy
-if important enough, conduct baseline surveys
to establish occupancy status before making
management decisions

no

detectability of
individuals/trends: uncertainty
of accuracy of survey methods
to capture information about
species or system

-evaluate if those uncertainties are important to no
the decision-making process
-make assumptions about detectability
-make assumptions about trend
-if important enough, conduct research to reduce
uncertainty of survey method

Where can I learn more about adaptive management and an integrated approach to
development of a conservation strategy? The following documents are in the HCP
Handbook Toolbox.
● Climate-Smart Conservation: Putting Adaptation Principles into Practice
● Designing Monitoring Programs in an Adaptive Management Context for Regional
Multiple Species Conservation Plans, U.S. Geological Survey
● Guidance for Designing an Integrated Monitoring Program. National Park Service
● Miradi: a user-friendly program that allows nature conservation practitioners to design,
manage, monitor, and learn from their projects to more effectively meet their
conservation goals
● The Department of the Interior Adaptive Management Technical Guide
● The Open Standards for the Practice of Conservation
● The San Diego Management and Monitoring Plan

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10.5.3 Oversight Committees
For large-scale or regional, programmatic HCPs, oversight/technical/or steering committees,
made up of representatives from the permittees and the agencies that issue local permits (i.e.,
building or grading permits, etc.) are often used to ensure proper and periodic review of the
monitoring program. These types of teams also ensure that each program properly implements
the terms and conditions of the incidental take permit. They evaluate the permittee’s success in
reaching its identified goals and objectives. Technical experts or affected stakeholder groups
may also work on these teams when significant adaptive management might be expected. These
teams can be particularly helpful in advising the permittee on changes needed to the monitoring
program and how to adaptively manage the HCP to efficiently meet goals and objectives.
Committees that the applicant or a non-Federal stakeholder forms and operates are not be subject
to the Federal Advisory Committee Act. We should participate, but we should not oversee or
“manage” such committees. They should be organized by the applicant or other non-Federal
stakeholder. Oversight committees should meet regularly and review implementation of the
monitoring program and filing of reports as defined in the HCP and incidental take permit. The
committees should meet annually, although they may meet less often depending on management
results, frequency of changed circumstances, or increased confidence in the plan’s management
methods.

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Chapter 11: Implementation Costs and Funding Assurances
11.0
11.1

Introduction
Implementation costs
11.1.1 Estimating costs
11.1.2 Preserve Management Costs
11.1.3 Adjusting Funding
11.1.4 When a Mitigation Project Doesn’t Perform as Proposed
11.2 Funding Sources
11.3 Funding Assurances
11.3.1 Examples of Plan Types and Funding Assurance Approaches That May Apply
11.3.2 Categories of HCP Implementation Costs
11.3.2.1 The Effect of Stay-Ahead Provisions on Funding Assurances
11.3.3 Types of Funding Assurances
11.3.3.1 Determining Adequate Funding Assurances for a Specific Project
11.3.4 Third Party Beneficiaries
11.3.4.1 Third-Party Beneficiary Structure
11.3.4.2 Collecting Funds
11.3.5 Putting it All Together
______________________________________________________________________________
11.0 Introduction
Every plan is different. Every applicant is different. We developed this chapter to present
options, not to dictate decisions. Use the tools in this chapter when they make sense to use them.
When figuring how to fund a Habitat Conservation Plan (HCP) the applicant must first estimate
what the costs of implementing the plan will be. The applicant should use a comprehensive
process to identify and estimate costs over the life of the plan, and where necessary, estimate
costs in perpetuity (e.g., preserve management). Cost estimates should include adjustments for
inflation.
There must be funding for the implementation to be successful, so the applicant must
demonstrate how funding will be assured before we can issue an incidental take permit. The
applicant must develop a funding plan early in the planning process that will adequately cover all
aspects (financial needs) of HCP implementation and provide proof of the secured funding
sources before the plan is approved.
The Endangered Species Act (ESA) guides us on funding HCPs in the following way:
Section 10(a)(2)(A): “the applicant therefore submits to the Secretary a conservation plan
that specifies… (ii)... the funding that will be available to implement such steps”.
Section 10(a)(2)(B): (iii) “the applicant will ensure that adequate funding for the plan will
be provided.”

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The permitting regulations (see the HCP Handbook Toolbox) for both of the Services also
provide specific language on funding HCPs: 50 CFR 17.22 and 17.32 for the U.S. Fish and
Wildlife Service (FWS), and 50 CFR 222.307 for the National Marine Fisheries Service
(NMFS). Our regulations reflect the language in the ESA that requires applicants to ensure
funding for HCP implementation, including changed circumstances and other measures as
required.
HCP applicants can fully fund their plan themselves or seek funding from other sources, but all
sources of funding relied on in the HCP for implementation must be assured. For regional plans,
building a broad coalition to obtain funding from diverse interests, such as infrastructure
projects, can be useful in securing adequate funding to implement the HCP.
The Services offices should work with solicitors/general counsel to review and negotiate the
financial assurance instruments the applicant uses to support the conservation program proposed
in the HCP (see the HCP Handbook Toolbox).
11.1 Implementation Costs
The issuance criterion to “ensure adequate funding for the plan will be provided” means that the
applicant must calculate what the costs of implementing the plan will be. The complexity and
size of the plan usually dictate how many different types of HCP costs will be incurred and how
much the plan will cost to implement. In general, all plans should:
● thoroughly document the cost estimate (show your work),
○ up-front costs (hiring biologists, management, monitoring, etc.),
○ one-time costs (capital costs),
○ on-going operational costs such as salaries, benefits, consultants, and equipment
replacement,
○ costs that will be incurred in perpetuity, and
○ where these costs overlap
● be paid for or assembled (and guaranteed) by the permittee, and
● be paid for during the permit term.
The applicant should include in the HCP detailed estimates of the various categories of plan
implementation, including mitigation and how each type will be implemented, and which:
● require use of annual operating funds, such as hiring biologists, monitoring, management,
road decommissioning;
● are secured through exactions, such as land set asides, easements; and
● are a part of ongoing operations, such as timber harvest plan costs, etc.
11.1.1 Estimating Costs
The applicant first must clearly demonstrate how they will fund the costs of the elements of plan
implementation. Estimating costs for HCPs can be a daunting task. For big plans, applicants
often hire economists to help estimate costs. Below are a few tips to help estimate costs.

11-2

Use of assumptions:
Encourage applicants to use commonly held assumptions rather than trying to come up with
everything on their own. Depending on the cost, these assumptions don’t necessarily need to
come from HCPs. For example, staff and office costs for an HCP aren’t necessarily any different
than for staff and office costs of similar businesses or agencies in the area.
Time to estimate versus cost:
Spend more time estimating the high dollar costs and less time on those that aren’t significant.
For example: don’t estimate how many pens each employee might need over a 30-year period,
instead, make a quick assumption of x% for office supplies. Conversely, when estimating high
dollar costs, an in-depth analysis is warranted because the risk of being significantly off can have
repercussions for the entire funding strategy of the HCP.
Use of case studies:
Encourage applicants to use case studies to estimate the costs of certain (especially expensive)
actions (e.g., restoration of riparian habitat). Find similar HCPs or HCPs with similar actions to
use for a cost comparison. Use the cost comparison to estimate how much similar actions will
cost in your plan. When doing case studies, don’t forget to factor in the differences between the
local market costs.
Helpful Hint: finding a similar HCP with partners willing to share their cost estimates can be extremely
helpful, particularly if they have experience from plan implementation.

The following worksheet is an example of how an applicant could estimate and summarize costs
of plan implementation. This example includes a minimal amount of information needed, but not
all categories will be required for every HCP. Most HCPs will require additional detail where the
breakdown of costs and more tables are necessary. See Worksheet 11.1a.

11-3

Worksheet 11.1a: Funding Worksheet to Estimate HCP Costs
Eval?

Funding area

Annual Cost estimate
1

2

3

Total Cost
estimate
4

5

Public Outreach:
Public meetings

Written information/mailings
HCP Administration:
Annual reporting
Meetings
Permit processing
Minimization and mitigation:
Pre-construction surveys
Biological monitors
Exclusion fences
Land acquisition/ easements
Purchase credits at bank
Restoration
Monitoring
Compliance
Effectiveness
Targeted research
Adaptive management
Reporting
Time to develop
GIS
Printing/publication costs
Preserve management
Day-to-day management
Endowment
Signage
Changed circumstances
Remedial actions
Total

11-4

6

7

8

9

10

For plans that require land acquisition throughout the permit term, it may be more cost-effective
in the long run to front-load funding for the acquisition earlier in the plan. This strategy
anticipates long-term fluctuations in the value of land, while minimizing the chance that various
stakeholders will be unable to meet their long-term commitments. Ensuring that more funding is
available at earlier stages in the plan helps the applicant to better ensure funding in later stages.
For example, HCPs with ongoing land acquisition costs should include a mechanism requiring
that permittees regularly revisit and adjust fees to make sure mitigation costs can be met
throughout plan implementation. For good examples of adjusting fees throughout plan
implementation, see the Natomas Basin HCP and the East Contra Costa HCP/NCCP (HCP
Handbook Toolbox).
11.1.2 Preserve Management Costs
Applicants should prepare a detailed property analysis record (or a similar type of analysis) to
calculate the costs of land management. Cost analysis must be detailed, specific, and thorough.
Software like the one developed by the Center for Natural Lands Management (see the HCP
Handbook Toolbox) can be useful tools to help estimate these costs. In addition, the Nature
Conservancy developed Stewardship Calculator tool (see the HCP Handbook Toolbox) and
accompanying handbook that was released in 2016 and is free and available to the public. The
calculator was developed with the participation of the EPA, the Land Trust Alliance, National
Fish and Wildlife Foundation, U.S. Army Corps of Engineers, and individual land trusts and
mitigation bankers. The website also provides additional resources on land stewardship.
11.1.3 Adjusting Funding
HCPs must also consider future costs. How much will it cost to do the same activities in 20
years? To answer this question, applicants generally factor inflation into plan costs. For feebased plans, the fees must rise to meet costs. An inflationary index is often tied to the HCP cost
estimates. Market values for land, services, etc. may change at a different pace than inflationary
costs, so estimates must factor that in and funding must be adequate to meet those costs.
The HCP should also consider specific remedies to deal with changed circumstances by
including an estimate of their cost and a description of how they will be funded. Applicants must
build funding strategies with the long term in mind to ensure sufficient resources are available to
respond to changing climates, economic changes, and uncertainty in management effectiveness,
among other things.
Long-term HCPs should build rising costs into their estimates. For plans that collect fees, we
suggest applicants establish a process in the HCP with regular adjustments so the fees keep pace
with costs. It is important to note that applicants sometimes seek to establish firm caps on their
funding obligation; however, that may impede the applicant from collecting adequate funds to
meet commitments made in the HCP, so we don’t advise using caps in these situations.
11.1.4 When a Mitigation Project Doesn’t Perform as Proposed
When there is risk of mitigation not going as planned, additional assurances may be needed to
ensure the mitigation project can be remedied. These additional assurances are needed when
11-5

there is risk an applicant will complete their development project without completing their
functional mitigation requirements. For example, a 5-year, development HCP requires
acquisition and restoration of a wetland. The acquisition and initial restoration of the wetland
occurs before the impacts, but it may take 6 years to know if the restoration is meeting
performance targets. In this case, contingency funding should be assured to remedy the
restoration if performance targets are not met. Contingency funding could be assured through a
letter of credit, performance bond, or similar funding assurance (to a third party beneficiary). If
the restoration meets the performance standards, we would release the contingency fund back to
the permittee. If the performance targets are not met, the contingency funds would be used to
remedy the restoration to meet performance targets. These contingency funding assurances need
to be part of the HCP’s development, not something that is added later.
Each mitigation project should have a monitoring program funded as part of the project budget.
In the example above, the monitoring would be essential in determining if the performance
targets are met for the wetland restoration, or if more actions are needed. In addition, a
permanent maintenance and management endowment must be created for the program to ensure
permanent site protection and continued achievement of performance targets.
11.2 Funding sources
There are a number of ways applicants can fund their HCP conservation strategy commitments
and numerous potential sources of funding. Applicants should look broadly for potential funding
sources to meet their funding requirements. Land acquisition is a significant expense and
contributes to implementation delays for many applicants. Table 11.2a provides examples for
sources of funding.

11-6

Table 11.2a: Potential Funding Sources for HCPs
Source of funding

Examples

Good for:
small/
simple plan

project level/
medium size

regional/ large

X

X

X

In-lieu-fee

Alabama Beach Mouse GCP- MOA established an inlieu-fee with a local land trust. Fund works by upfront, lump sum payments by an applicant based on
number of acres disturbed from project development.

Developer fees collected per
acre/property tax assessments

Natomas Basin HCP, Balcones Canyonlands HCP,
Clark County MSHCP, Santa Clara Valley
HCP/NCCP- this funding source has been used for
many county or city lead development plan, they vary
somewhat in how they are implemented, but generally
fees are collected based on the size of property or
extent of impact from development activities.

X

X

State, county, city, or other
governmental general fund

San Diego County Water Authority HCP- funded as a
capital cost under the Capital Improvement Program
Mitigation Program approved by Water Authority
Board and/or annual operating budget, Perdido Key
County-wide Perdido Key Beach Mouse, Edwards
Aquifer Recovery Implementation Program HCP

X

X

Voter-approved bond
measures

Western Riverside MSHCP, a condition for local
agencies to access funds from a voter-approved
transportation bond measure was to "participate" in the
HCP (this "participation" equals $121 million in HCP
funding), Southern Edwards Plateau HCP, Pima
County Multi-Species Conservation Plan.

X

Energy, sales, and
development taxes

San Diego County's TransNet consists of a half-cent
sales tax that funds HCP mitigation. To offset impacts
caused by the construction of transportation projects,
the TransNet EMP set aside $40 million for the first 10
years for implementation, management, and
monitoring of the San Diego HCPs.

X

Infrastructure funding e.g.,
transportation bond money

The Federal Highway Administration and the
Secretary of Transportation have expressed interest in
facilitating area-wide HCPs because the plans enable
the prompt delivery of large-scale infrastructure,
particularly transportation projects. Recently, Title V
of the Water Resources Reform and Development Act
of 2014 authorized a pilot Water Infrastructure
Finance and Innovation Act, which included a
provision for loans and loan guarantees for HCPs in
conjunction with otherwise eligible water
infrastructure projects.

X

Special assessments

Perdido Key HCP- development with Perdido Key
beach mouse habitat will be required to pay the annual
$201 per unit special assessment payment, hotels
would be assessed $201 annually per room,
commercial developments will be assessed $201
annually per designated parking space.

X

X

Annual appropriations/ annual
funding

Stanford HCP, East Bay Municipal Utility District
HCP, North Carolina Division of Marine Fisheries CP,
Georgia Department of Natural Resources HCP,

X

X

11-7

Barton Springs Pool HCP- annually appropriated
funding was used to fund the plans. Funding is
generally set aside within their budget to make sure it
is spent on the HCP.
Landfill tipping fees

Coachella Valley MSHCP- The costs for land
management, biological monitoring, and the
establishment of an endowment were to be funded by
the existing County tipping fee on waste generated in
the area and fees generated by a local landfill. The
local landfill was expected to generate a sufficient
stream of revenue such that a loan could be made to
provide funding for the land acquisition program.

X

X

Water management fees

The Edwards Aquifer HCP (EA HCP) is an effort to
balance the need to protect threatened and endangered
species that are known to only exist in the Edwards
Aquifer and springs fed by that aquifer and the
region’s reliance on the same aquifer for its water
needs. The costs associated with implementation of the
EA HCP are provided through the assessment of a
program aquifer management fee on EA municipal and
industrial permit holders. Additional funding is
provided from downstream interests including the
Guadalupe-Blanco River Authority, the San Antonio
River Authority, the City of Victoria, the City of San
Antonio's City Public Service Board, the Guadalupe
Basin Coalition, Union Carbide, and the Nueces River
Authority.

X

X

Private foundations

The Doris Duke Charitable Foundation administers
grants in cooperation with the National Fish and
Wildlife Foundation, Wildlife Conservation Society,
and the National Council for Science and the
Environment. Most projects funded are broad scale
Statewide or regional efforts that help implement
objectives of State Wildlife Action Plans (SWAP).
Unsolicited proposals are not accepted and a letter of
inquiry must first be submitted. Multi-year grants
range from $125,000 to $3 million.

X

X

Federal - U.S. Department of
Agriculture (USDA) Forest
Legacy Program

The Forest Legacy Program (FLP) is a voluntary
private land conservation program between the USDA
Forest Service, States, land trusts, private landowners,
and others. It provides financial assistance to ensure
important forests remain intact and on the tax roles,
and that they continue to contribute to the community,
the local economy, the landowner, and the
environment. The program provides up to 75% of the
funds needed to acquire (fee or easement) forestlands
used for timber production that are threatened by
development. Goals of the program are to promote
forestland protection and other conservation
opportunities; to maintain traditional forest uses;
protect water quality; prevent development along
pristine lakes, ponds and streams; provide public
recreation opportunities; maintain productive forests;
and prevent the fragmentation and conversion of
private forest land. FLP-funded acquisitions include
protection of important scenic, cultural, fish, wildlife
and recreational resources, riparian areas, and other
ecological values.

X

Federal - USDA Farm and
Ranchland Protection Program
(FRPP)

FRPP is a voluntary program that helps farmers and
ranchers keep their land in agriculture. The program
provides matching funds to State, tribal, or local
governments and non-governmental organizations to
purchase conservation easements. Participating

X

11-8

X

landowners agree not to convert their land to
nonagricultural uses and to develop and implement a
conservation plan for highly erodible land. Grant
amounts vary but the land protected by easement must
be privately owned, be part or all of a farm or ranch,
and contain prime, unique or other productive soils.
Additional requirements apply.

11.3 Funding Assurances
The Services should conduct an independent review and must make a finding that the proposed
funding amounts and sources in an HCP are adequate, sufficient, reliable and will meet the
purposes of the conservation strategy for the permittee to receive No Surprises assurances and to
keep their permit in good standing. The permittee must fully fund and implement the HCP.
Because HCPs vary widely in scope, duration, types of take, and mitigation and minimization
measures, there have been various funding strategies to assure funding in HCPs.
The HCP must provide details for the different types of costs in the HCP, identify sources of
funding, and provide assurances for the identified funding sources. The applicant must assure
that funding is available for HCP implementation and that avoidance, minimization, and
mitigation measures can be implemented to avoid, reduce, and offset impacts to covered species
from HCP covered activities. Funding assurances are also required to ensure that mitigation
occurs and that it meets the performance standards for which it was implemented. Finally the
HCP needs to incorporate funding for monitoring and to ensure changed circumstances are
adequately addressed. Without such funding assurances, the Services cannot issue an incidental
take permit.
Some elements of the conservation plan warrant special consideration in terms of funding
assurances, including:
● when mitigation may occur after the activities that result in take,
● future operating costs (e.g., hiring consultants to conduct surveys, costs to address
changed circumstances, etc.),
● permanent management,
● monitoring,
● responses to changed circumstances, and
● any requirements that continue (e.g., in perpetuity) after the permit ends.
If there are potential indirect effects attributable to implementation of the proposed HCP covered
activities, the HCP should incorporate contingency measures that address how those impacts will
be remediated and provide the funding assurances for such measures. Examples include:
● Road work near a riparian area: the road bank may erode later and damage important
riparian habitat.
● Development near a wetland area: development may later be found to have altered the
hydrologic basin to the point that it changes the volume and refill rate of the wetland in a
way that is significant to covered species.

11-9

● Fragmentation from development: development may take place later that could impact
the connectivity of the covered species’ population in a significant way.
There are a number of factors to consider when advising applicants on how to structure funding
assurances. Plan duration is often an important consideration. For example, shorter term plans
may want to consider performance-based funding assurances to ensure all conservation measures
are completed within the shorter permit duration. On the other hand, longer term permits may
want to consider different funding assurances mechanisms such as stay-ahead provisions
(described in 9.1.8). Applicant financial solvency may influence the type and durability of
funding assurances. For example, if there is a high risk of HCP avoidance, minimization, and/or
mitigation measures not getting implemented, the Services should require the strongest funding
assurances (e.g., letters of credit, performance bonds). Whereas, if there is a low risk of not fully
implementing the HCP, less stringent funding assurances may apply (e.g., demonstration of
solvency and commitment to implement measures over the long term).
11.3.1 Examples of Plan Types and Funding Assurance Approaches That May Apply
Low-Effect HCPs and Single Project HCPs
Low-effect or single project HCPs may be for projects such as development of a single-family
residence or small housing development; small scale forestry or a site-specific oil and gas
operation; farm or ranch operations; or any other activities that would result in smaller-scale take
of listed species. Mitigation may range from preserving habitat on-site to purchasing mitigation
credits from a Service-approved conservation bank.
● Method to fund: These most often include landowner funds.
● Methods to assure funding: purchase agreements with a conservation bank, letters of
credit, conservation easements to encumber real property, endowments for management,
performance bonds, or surety bonds.
Development HCPs
These HCPs usually combine land already owned with land that must be acquired. The
conservation land is assembled into a preserve with management requirements into perpetuity.
Cost of management, both short and long-term, must be estimated in the plan. Applicants should
identify costs born during development activities to minimize effects (e.g., exclusion fencing)
separately from costs associated with those requiring additional funding, such as acquisition of
mitigation land and associated restoration, management, and monitoring costs. The latter
category requires additional assurances of funding. This may be in the form of an upfront
endowment fund to pay for permanent management and monitoring. If the mitigation land will
not be purchased prior to take, it should include enough secured funding to pay for reasonably
identified mitigation land and habitat management endowment by a certain date, or a
requirement that mitigation credits in a Service-approved mitigation bank be purchased prior to
development.
● Method to fund: landowner funds, development fees, association dues, and other types of
fees.
11-10

● Methods to assure funding: endowments for long term management, up-front payment
before development occurs, performance bonds, letters of credit, and corporate
guarantees (see details below).
Regional HCPs
Regional HCPs may also be development HCPs. The method to fund and methods to assure
funding are different from those used for development HCPs as the scale of impacts and
conservation is usually much greater.
● Method to fund: These include tax assessments, bond measures, developer fees, general
funds, and transportation funds.
● Method to assure funding: Funding assurances are made through stay-ahead provisions
(described in 9.1.8), specific ordinances or bonds passed for the sole purpose of HCP
implementation, conservation easements to encumber real property, non-wasting
endowments for management, and demonstration of ability to collect fees.
Timber HCPs
With important exceptions, the minimization and mitigation measures of timber HCPs are
connected to timber harvests and carried out as part of their timber harvest plans as they go
forward (e.g., survey requirements, tree marking, minimum stream buffer zones, requirements
for leaving large woody debris, avoiding steep slope areas prone to mass wasting). Applicants
may consider such measures as operating expenses to be factored into the costs of each timber
harvest plan. Other costs, such as road storm proofing and HCP compliance and effectiveness
monitoring, are not tied to specific timber harvest plans, must be separately funded and generally
must have more rigorous assurances. Generally HCP implementation costs, and related funding
assurances, would focus on costs of the HCP conservation strategy that extend beyond the
normal timber harvest activities that would be ongoing without an HCP.
● Method to fund: These plans are often “pay as you go” HCPs, meaning that HCP
implementation costs are wrapped into revenues from the underlying activities (e.g.,
timber sale receipts).
● Method to assure funding: Because timber plans generally don’t acquire land, their main
financial commitments are in the:
○ Manner in which they harvest, and
○ Infrastructure improvements to reduce effects of harvesting (e.g., bank
stabilization, culverts, etc.). Funding is often out-of-pocket and requires additional
assurances. For example, annually authorized letters of credit or establishment
and proof of sufficient funds in reserve accounts are methods sometimes used to
assure funding in timber plans.
Non-Federal, Governmental HCPs
Non-Federal governmental entities, such as state agencies, county governments, municipal
governments, or quasi-governmental businesses (e.g., utilities) may develop HCPs for the same

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or similar activities as private entities. These HCPs cover development activities for timber
harvest, transportation, utility lines, etc. and are often implemented by their partners.
● Method to fund: These include tax assessments, bond measures, developer fees, general
funds, and transportation funds.
● Method to assure funding: Funding assurances are made through annual appropriations,
stay-ahead provisions (described in 9.1.8), “pay-as-you-go” mechanisms (see section
specific ordinances or bonds passed for the sole purpose of HCP implementation),
conservation easements, non-wasting endowments for management, and demonstration of
ability to collect fees. In addition, some agencies have well-established programs with
environmental staff dedicated to conservation activities and functions that are paid for
through annual budgets and will provide those services for the HCP. Funding assurances
for entities that rely on annual appropriations is sometimes accomplished by a
requirement that incidental take authorization is contingent on annually demonstrating
evidence of annual funding requests and annual confirmation of adequate legislatively
approved budgets.
11.3.2 Categories of HCP Implementation Costs
HCP costs can be divided into three different categories based on the costs and type of funding
assurances needed. This may vary based on the size and complexity of the plan.
1. program administration;
2. implementation of avoidance, minimization, and mitigation measures; and
3. long-term management.
Each plan may not need to break out each of these cost categories and each category does not
necessarily have or need the same type of funding assurances. For example, small plans
sometimes purchase credits at a conservation bank, where the bank builds long-term
management costs into their fees (rather than the applicant needing to provide management costs
themselves). Before discussing fundings assurances, the Services should advise applicants to
estimate the costs of implementing the plan (see section 11.1 for more information).
1.
●
●
●
●
●

Program administration costs include items such as:

staffing,
office space,
insurance,
equipment, and
overhead.

Types of plans where this applies: These costs typically apply to all plans with
implementation commitments longer than 5 years.
Way to assure funding:
For businesses: annual appropriations, financial tests with corporate guarantees, etc.

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For municipalities: annual appropriations, financial tests with corporate guarantees,
demonstration that fees collected will be adequate to cover these costs and that they have
the authority/ability to collect those fees, etc.
2.

Implementation of avoidance, minimization, and mitigation measure

costs:
● funding for specific avoidance and/or minimization measures;
● funding for offsite mitigation;
● ensuring performance of mitigation meets intended purpose;
o performance bond, or
o letter of credit;
● habitat restoration/creation;
● monitoring, research, and scientific review;
● contingency funding (e.g., changed circumstances);
● land acquisition - new land that is acquired (in fee or by easement) or permittee owned
land that is managed to support biological goals and objectives; and
● preserve management and maintenance, including adaptive management.
Types of plans where this applies: These costs apply to all HCPs, but the mechanisms to assure
funding differs among them.
Way to assure funding: Assurances for avoidance and minimization measures often provide
funds if the avoidance and minimization measures either don’t happen or don’t meet the
performance standards. Specific instruments include letters of credit, performance bonds, surety
bonds, casualty insurance, and cash in escrow. Assurances for mitigation costs often include
stay-ahead provisions and performance-based instruments to ensure conservation achieves the
performance standards. Specific instruments include performance bonds, letter of credits (often
annually renewed), surety bonds, certificates of deposit, and in some rare cases financial test and
corporate guarantee. Municipalities often implement stay-ahead provisions and fund plans
through user fees or by bond measures. They generally have to demonstrate authority/ability to
collect fees and describe how bond measures have already been passed, on which they can draw
funds to implement the HCP.
The duration of plans is an important consideration for funding assurances. Short-term plans may
only have one project that they build and the permit ends. Funding assurances for short-term
plans need to be adequate to ensure mitigation occurs and performance standards are met.
Assurances may be needed that extend beyond the permit term. Funding assurances for longterm plans can take advantage of a permittee’s ongoing need for take authorization, which gives
the permittee incentive to ensure their permit is in good standing. Additionally, actions taken in
long-term plans have longer to ensure management actions meet performance standards during
the permit term.
Another important consideration when assessing funding assurances is the risk that an applicant
won’t implement conservation measures or ensure performance standards are met. Factors to
consider when assessing risk include: financial solvency, stability of a company or industry, cost
of HCP relative to overall applicant budget, etc.
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Stay-ahead provisions, where conservation occurs or where fees are collected (like through an inlieu fee program) before impacts, are useful to ensure minimization and mitigation measures
occur as planned. Assurances for all types of plans and applicants need to be set-up in a way that
makes sure commitments are honored, and performance targets are met without over-burdening
the applicant or the Services with unnecessary costs and administrative obstacles.
3.

Perpetual Management Costs After Permit Expiration

Plans that include management and monitoring into perpetuity (after the permit expires) must
provide funding assurances for perpetuity. Long-term management endowments are a preferred
mechanism for providing these assurances.
If there is a high risk of the HCP not being fully implemented (specifically the avoidance,
minimization, or mitigation measures) based on the level of the Services’ confidence in the
applicant, we should require more funding assurances (e.g., letters of credit, performance bonds,
etc.). Conversely, if we expect there’s a low risk of not fully implementing the HCP, we
generally require less stringent funding assurances (e.g., demonstration of solvency and
commitment to implement measures over the long term). The figure 11.3a, below, presents a way
to think about the risk associated with different types of plans and applicants, and how it may
shift the funding assurances that are required.
During HCP negotiations we must decide how much confidence we have that the applicant will
fully implement their HCP, which helps us determine the type of funding assurance we will
require. Factors that go into our risk determination are the duration of the requested permit and
the nature of the applicant. See general examples of the level of risk associated with select
applicants below.
Some examples of how you might assess risk:
● Low risk: municipalities, utilities, well-established, environmentally conscious
companies, etc.
● Moderate risk: well-established companies, companies with high profit margins, etc.
● High risk: new companies, companies in a volatile industry where companies often go
out of business, etc.

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Figure 11.3a: Generalized Risk Model to Characterize Appropriate Funding Assurances
During Plan Implementation

We need to ensure activities occur during the permit term as planned, or that assurances are in
place to ensure they take place after the permit term is over. Often the mitigation requirement,
such as ongoing preserve management, outlast the permit term, so it is important that long term
management, including funding for it, be in place well before the end of the permit term.
Sometimes applicants elect to use conservation banks or other mitigation banks to fulfill its
mitigation obligations. Conservation banks are responsible for the management of the mitigation
lands secured. On the other hand, if an applicant relies on third-party mitigation lands or
mitigation lands for which the applicant is responsible, all management responsibilities,
including adaptive management procedures associated with those lands, must be fully funded
and managed by the designated third-party entity, or the applicant, respectively.
11.3.2.1 The Effect of Stay-Ahead Provisions on Funding Assurances
Stay-ahead provisions often go together with funding assurances for conservation measures
associated with land acquisition or restoration. At their simplest, stay-ahead provisions are a
commitment to initiate conservation actions before impacts that result in take occur. Stay-ahead
provisions do not replace the need for identifying costs and assuring funding, but they do reduce
the concern that impacts will happen and conservation will not happen. Stay-ahead provisions
generally work best for plans with discrete conservation actions (e.g., land acquisition,
restoration).
11.3.3 Types of Funding Assurances
There are many different ways to assure funding, each with different pros and cons, not the least
of which include cost and security. There is no one-size-fits-all for assuring funding with HCPs.
The size of projects (impacts and conservation), type of applicant (e.g., homeowner, company, or
municipality), and activities for which funding needs to be assured (administration;
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implementation of avoidance, minimization, and mitigation measures; and long-term
management) often dictate what is the appropriate mechanism to adequately assure funding.
Below is a list of funding assurance instruments that have been used to assure funding. Some of
these terms and tools may be adjusted from their traditional use to meet the needs of HCPs.
As described more fully below in section 11.3.4, the Services lack statutory authority to accept
directly, retain, and draw upon funds from performance bonds, and/or letters of credit to ensure
compliance with permit conditions. Because of this, a third party is needed to act on the
Services’ behalf as a beneficiary of some of the funding sources described below.
We wrote this discussion based on “Implementing Financial Assurance for Mitigation Project
Success,” by Paul Scodari et. al. June 2011, Institute for Water Resources and U.S. Army Corps
of Engineers (see the HCP Handbook Toolbox). This is a good resource for short-term
assurances.
A. Cash in Escrow
Summary: For HCPs, an escrow is an agreement between a mitigation provider (the grantor,
permittee), the Services (the grantee), and a third-party beneficiary to transfer ownership of cash
from the grantor to the beneficiary if the grantor fails to meet the obligations specified in the
agreement. A neutral third party, such as a law firm or financial institution (the depositary),
receives and holds the money and assures its transfer to the grantee’s beneficiary if the grantor
fails to fulfill its obligations. Prior to a claim, legal title to the money in escrow remains with the
grantor (permittee); however, after the money has been transferred to the depositary, the cash
cannot be returned to the grantor until the grantee (Services) notifies the financial institution that
the grantor has fulfilled its obligations. In other words, the cash in escrow should be transferred
from the permittee to the beneficiary only if the permittee fails to meet the obligations specified
in the agreement and the permittee does not actively take steps to satisfy the HCP’s
requirements. In HCPs, the cash would be held as a security to ensure that certain measures are
implemented and perform as expected, and if they do not, the third party beneficiary would draw
from the funds to remedy the situation. Escrow accounts must be conditioned to be non-wasting.
If the account is interest-bearing, the involved parties must agree on the rate of the interest. This
mechanism is commonly used for short-term assurances.
Pros●

This is an excellent assurance because the money is readily available and the account
does not expire.
● Money can be added to the account for a phased process, and funds can also be drawn
down as mitigation is completed or returned to the permittee at the end.
● This has been used successfully in many HCPs.
Cons● Expensive for the permittee as full funding must be placed in the escrow account.
Appropriate for: most HCPs.

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B. Casualty Insurance
Summary: Casualty insurance is a contract between a mitigation provider (the insured) and an
insurance company (the insurer) for claims against the policy made by the Service up to a
specified dollar limit for a specified period of time. If performance measures are not met, the
Services can make a claim to draw on the funds. The insurance company may fulfill the claim
directly or by cash payment to a Services designee. The applicant would repay the insurer any
costs that result from a claim up to the amount of the deductible. This mechanism requires the
Services to identify an appropriate third party beneficiary to implement the measures that the
permittee was unable to perform. This mechanism is best used for short-term assurances.
Pros● This has an advantage over performance bonds in that the Services, not the insurance
company, determine if the permittee is in default.
Cons● This method of funding assurance has not yet been used for HCPs, so it is untested.
● Some other Federal action agencies (e.g., Seattle district of the U.S. Army Corps of
Engineers) does not accept this type of funding assurance.
Appropriate for: small projects to ensure they perform as planned (e.g., restoration).
C. Letter of Credit
Summary: A letter of credit is a document that a financial institution issues on behalf of a
mitigation provider (the permittee) that provides for payment of the permittee’s obligations.
Payment is assured up to a specified dollar amount during a specified period of time. If we
determine that the permittee has failed to fulfill its obligations in the letter, the Services can
demand payment of all or part of the dollar amount specified in the letter. Money is then drawn
from the account by the third-party beneficiary to take remediation actions where performance is
insufficient. The permittee then owes that amount to the financial institution according to the
terms of a loan agreement between the financial institution and the permittee established to
secure the letter. These loan agreements often require the permittee to post collateral with the
issuer. Typically, letters of credit have to be renewed annually. Such letters should be made
“irrevocable” (e.g., cannot be revoked during its term without agreement from the Services) to
ensure that the bank will honor all claims the third-party beneficiary makes during the letter
term. This mechanism is commonly used for short-term assurances.
Pros● This tool has been successfully used extensively in HCPs.
● Letters of credit can be adjusted over the permit period to match the remaining funding
obligation (e.g., the amount assured can decrease as the mitigation is put in place). This
can reduce the cost of the letter of credit for a permittee.
Cons● Irrevocable letter of credit is more expensive than a performance bond for the permittee.
● Must look carefully at the provisions in the letter of credit and the bank that is used.
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● Typically no longer than 5 years. Must be renewed prior to expiration if funding is still
needed to complete mitigation.
● We must preserve and safeguard the original letter of credit instrument as if it were cash.
Copies or scans cannot be used to draw funds.
Appropriate for: some minimization measures (e.g., road and stream protection), monitoring or
management actions for short-term plans, and for assuring measures in the short term.
D. Performance Bonds
Summary: A performance bond is an assurance contract with a specified dollar limit for a
specified period of time where a bonding company (the surety) assumes the obligations of a
mitigation provider (the permittee) in case the permittee fails to fulfill their obligations or meet
performance standards. The surety may fulfill the permittee’s obligations either by performing
those obligations up to the limit of the penal sum, or by paying an amount up to the penal sum
(less any costs already incurred by the surety). Payments are made to Service-approved, thirdparty beneficiary to meet the specified performance standards. To secure a performance bond,
the permittee must enter into an indemnity agreement with the surety that requires the permittee
to reimburse the surety for any loss the surety may incur under the performance bond. Indemnity
agreements often require the permittee to post collateral with the surety. This mechanism is best
used for short-term assurances.
Pros● Minimizes the Services’ oversight.
Cons● We do not recommend these funding assurances due to the problems associated with
performance claims when the principal fails to fulfill their obligations.
Appropriate for: small projects to ensure they perform as planned (e.g., restoration).
E. Endowments
Summary: Most often an endowment is established to fund the long-term management of a
preserve created from HCP mitigation after the permit term. The endowment is an interestbearing account that generates adequate yearly income to fund the annual management of the
preserve land in perpetuity. Many endowments are set up where only the interest is available for
use and the principal is not withdrawn, providing a perpetual source of funding for management
of the preserve. The endowment may be funded in full at the time of HCP approval or in
increments, but should be fully funded within a reasonable timeframe that minimizes risk that the
permit will expire before the applicant has fully funded the endowment. While endowments are
usually set up for in perpetuity post-permit management, they can be established to ensure funds
are available during the permit term for avoidance, minimization, and mitigation measures and
HCP administration. Endowments are held by different third parties including by a nongovernmental entity that holds the easement on the preserved land, by a non-governmental entity
(e.g., National Fish and Wildlife Foundation) separate from the preserved land, or by a
community bank. This mechanism is commonly used for long-term assurances.

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Pros● Endowments are a known instrument used often in HCPs and conservation banks.
● Endowments are a good mechanism for long term funding.
Cons● May require a large initial investment by the permittee.
● Endowments involve financial risk and are subject to stock market fluctuations.
Appropriate for: post-permit management and monitoring, could be established to ensure funds
are available throughout the permit term for avoidance, minimization, and mitigation measures,
and HCP administration.
F. Annual Appropriations
Summary: Annual appropriations refer to governmental agencies establishing an annual budget
where funds are dedicated to specific purposes. A government passes regular appropriations bills
annually and the funding covers 1 fiscal year. For HCPs, local governments (e.g., city, county,
water district, etc.) have used annual appropriations to fund HCPs. This funding source is
especially important for stay-ahead provisions in an HCP. For instance, certain amounts of
incidental take coverage would be contingent on annual evidence that the budgets were approved
and funded each year. This is one of the most common funding mechanisms in state and local
governmental lead HCPs. This mechanism is commonly used for long-term assurances.
Pros● Relatively easy for the permittee to set up within their annual budget process.
Cons● Support for appropriations changes through time with no guarantee that the appropriation
will continue.
● Vulnerable to legal challenge unless strong stay-ahead provisions (or other assurance) are
in place and enforced.
● May require a suspension of the permit if appropriations are not passed in a given year
(this should be described in the HCP that incidental take authorizations are contingent on
sufficient funding)
Appropriate for: covering administrative costs, large municipalities may be able to cover
conservation/mitigation actions in this manner
G. Legislatively Guaranteed Funding
Summary: Large municipal HCPs, cities, counties, or States can legislatively mandate funding
be made available for and used by HCPs. These type of funding assurances also require stayahead provisions to ensure conservation occurs before development occurs. This mechanism is
best used for long-term assurances.
Pros● Strong commitment to fund and implement HCPs.
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● May not cover contingencies (e.g., changed circumstances) unless flexibility is built in.
● Can be legislatively removed.
Appropriate for: administrative and implementation costs of municipal lead plans (e.g., county,
city, water district, etc.).
H. Certificates of deposit (CD)
Summary: A CD is a certificate issued by a bank to a person or company depositing money for
a specified length of time. It’s essentially a savings certificate entitling the bearer to receive
interest. A CD bears a maturity date and a specified fixed interest rate, and it can be issued in any
denomination. CDs are generally issued by commercial banks and are insured by the FDIC. The
term of a CD generally ranges from 1 month to 5 years. For HCPs, CDs have been used to
demonstrate the applicant has sufficient funds to implement the HCP or some aspect of it. In a
sense, money is parked in a CD to prove funding is available and that it has been set aside for the
purposes of the HCP.
Pros● Simple and straightforward to set up
Cons● Generally CDs don’t have a third-party agreement, and the permittee retains control of
the release of funds
Appropriate for: demonstrating that money is available to implement the HCP.
I. Financial Test and Corporate Guarantee
Summary: A financial test is an evaluation to establish current financial condition of a business
or municipality. The idea behind them is that based on the results of the financial test, the
business or municipality will have the financial capacity to fund implementation of the HCP. A
corporate guarantee is where the business or municipality agrees to be held responsible for terms
of an agreement, often with funds held by a bank as a security. A financial test combined with a
corporate guarantee represents a strong way to assure funding by businesses and municipalities.
Pros● Thorough financial evaluation and commitment to fund an HCP.
Cons● If funds are not held by a bank as security, the agreement may not be enforceable. Would
require the Services to go through a permit suspension/revocation process.
Appropriate for: could be used to provide funding assurances for all aspects of an HCP.
J. Irrevocable Trust
Summary: An irrevocable trust is one that can't be modified or terminated without the
permission of the beneficiary. Cash, annuities, CDs, stock, real estate, or other valuable assets
are put into the trust. The grantor (in this case the permittee), would transfer assets into the trust,
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which would effectively remove all of their rights of ownership to the assets and the trust. The
implementing entity could be set up as the beneficiary, and they would draw funds from the trust
to pay for plan implementation or post-permit management. Irrevocable trusts are set up with
constraints on when and how funds can be drawn.
Pros● Since the permittee no longer owns the funds, it is removed from taxable assets of the
permittee, so it’s no longer liable for those taxes.
Cons● In addition to the initial fees to set up the trust, there may be an ongoing fee owed to
manage the assets, as well as other accounting costs.
Appropriate for: demonstrating that funding is available to implement the HCP, funding postpermit management and monitoring.
K. Standby Trust
Summary: A standby trust is an agreement between a third-party beneficiary (approved by the
Services), a financial institution, and the permittee to provide assurance that funds will be
available if remedies are needed to fix a non-performing project or to ensure mitigation occurs if
the permittee does not implement conservation activities as agreed. The trust is established to
provide all or part of any financial assurance called upon. The specific areas or actions to be
covered by the trust must be identified. It is called a “standby trust” because the owner
(permittee) creates an investment plan and the manager of the trust (financial institution) carries
out the plan based on the terms of the trust.
Pros● It is a known instrument, used by the U. S. Environmental Protection Agency (EPA).
Cons● Not all States have standby trusts.
Appropriate for: to ensure minimization measures are implemented per the HCP, and for shortterm plans standby trusts can be used to ensure monitoring or management actions are
implemented and ensure that mitigation measures are implemented per the HCP.
L. Trust Fund
Summary: A trust fund is comprised of a variety of assets intended to provide benefits to an
individual or organization. For HCPs, the permittee establishes the trust fund to provide financial
security that the plan will be implemented according to the terms of the agreement, and if it isn’t,
funds are released to a third-party beneficiary the Services select to remedy the situation. The
trust fund can be used to both prove funds are available to implement the plan and as a security
to ensure the terms of the agreement are followed.
Pros● This is a well-known and understood financial tool.

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Cons● May require a separate agreement with a third-party beneficiary.
Appropriate for: small projects to ensure they perform as planned (e.g., restoration), prove
availability of funds for minimization and mitigation measures, and for post-permit management
and monitoring.
M. Surety Bond
Summary: A surety bond is a contract among at least three parties. For HCPs, it would be the
Service, the permittee, and a financial institution (usually a surety company) to ensure the
permittee doesn’t default. If the permittee defaulted or was unable to complete the mitigation
actions, the Service would make a claim and the surety company would be responsible for
finding an alternate entity (using the funds paid into the bond by the permittee) to implement the
mitigation actions as described in the agreement.
Pros● Surety company finds appropriate contractor to implement mitigation, which saves time
for the Service.
Cons● Surety bonds can be expensive for the permittee as they would be required to place all of
the funds necessary to implement the mitigation actions into the bond.
Appropriate for: small or medium sized plans to implement mitigation actions like restoration
or acquisition.

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Table 11.3a: summarizes the different types of commonly used funding assurance
instruments.

11.3.3.1 Determining Adequate Funding Assurances for a Specific Project
The applicant must estimate the total amount of funding needed and use one or several of the
funding assurance methods above to guarantee that funds are available. The applicant estimates
should include the following:
Annual HCP administration costs multiplied by the number of years the HCP will be in effect,
+ the cost of minimization and mitigation measures,
+ the cost of other outstanding funding needs.
Any required funding assurances should also be sufficient to cover contingency actions (e.g.,
default by the permittee, non-performance, etc.) and should be based on the size and complexity
of the project, the estimate required to remediate the proposed mitigation project, and monitoring
of the site. These contingency funds would be used if a project doesn’t meet its performance
measures. These contingency funds must be built into the HCP.

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11.3.4 Third-Party Beneficiaries
The Services lack statutory authority to accept directly, retain, and draw upon funds from
performance bonds, letters of credit, etc. to ensure compliance with permit conditions. These
limitations are a result of the Miscellaneous Receipts Statute, 31 U.S.C. § 3302(b)(see the HCP
Handbook Toolbox). Therefore, the terms of the funding assurances instrument must be carefully
crafted to ensure that the Services can direct the funds deposited to be used for providing permit
compliance, without the Services directly accepting or disbursing the funds.
11.3.4.1 Third-Party Beneficiary Structure
Funding instruments that require a third-party beneficiary should be executed with the signatures
of an additional governmental or non-governmental environmental management entity (e.g.,
NFWF, Friends Group, State Fish and Game, etc.) as a bond “surety.” The third party must agree
to ensure performance if we determine that the permittee, as the bond “principal,” has defaulted
on any of its responsibilities. The HCP should also specify that the Services stands as an
“obligee” to the principal and surety of the bond, having the full and final authority to determine
the penal sum amount. The permit and bond must also state that the Services determines whether
the permittee has specifically performed some or all of the obligations, covenants, terms,
conditions, and agreements of the bond. Finally, the funding instrument should specify that if
both the principal and the third party default in their responsibilities, the Services retain the full
and final discretionary authority to identify new parties as additional surety(ies) to the bond.
11.3.4.2 Collecting Funds
Funding assurances are to be payable at the Services’ discretion to the third party designee of the
financial instrument or to a standby trust agreement. The conditions under which funds are
payable should be clearly stated in the financial instrument and, if possible, in the HCP. The
decision to collect funds occurs in two situations—when actions were not implemented, or when
actions do not meet performance standards during the agreed upon term. Performance standards
could be based on: implementation of an action or not, or ecological performance standards.
If the performance metric is simply whether or not the action occurred, consider developing an
agreed on process and schedule that will make clear when actions must happen (by a certain
date), and what actions will be implemented if they don’t. Ecological performance standards
should be based on the best available science to determine reasonable objectives that can be
measured with an agreed upon amount of effort.
We must notify the permittee of non-compliance. If the permittee cannot come back into
compliance, funds must be called on from the financial instrument. After conditions have been
triggered to collect funds, the Services must notify the third-party beneficiary that it should
collect funds and implement remedial actions.
11.3.5 Putting It All Together
Every plan is different. Every applicant is different. We developed this chapter to present
options, not to dictate decisions. Use these tools when they make sense. The two graphics below
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are essentially decision trees. Figure 13.3b is for short-term permits (e.g. up to 10 years) and
Figure 13.3c is for long-term permits (e.g. for more than 10 years). Not every scenario can be
illustrated, but we’ve tried to represent the major ones. Use these decision trees as a starting
place to think about which types of funding assurances could go with broad plan types. Further
thought and consideration is needed about your HCP to figure out which funding assurance
instruments are appropriate.
Figure 13.3b: Short-Term Permit Cost Categories and Assurances. This is a guide to help
people think in general about what is needed. Each situation is different, care and thought
should be given with each.

Short-term permits often lack all the same cost categories as long-term permits, so not all three
cost categories above apply in every short-term permit. Not all types of funding assurances are
listed; we’ve only listed the most commonly used.

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Figure 13.3c: Long-Term Permit Cost Categories and Assurances. This is a guide to help
people think in general about what is needed. Each situation is different, care and thought
should be given with each.

Long-term permits have multiple cost categories, and funding assurances may be different for
each. Additionally, each type of applicant may need different types and levels of assurances
depending on the specific situation. Not all types of funding assurances are listed; we’ve only
listed the most commonly used.

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Chapter 12: Net Effects and Permit Duration
12.0
12.1
12.2
12.3
12.4
12.5
12.6

Introduction
Determine the Anticipated Type and Amount of Take
Describe the Impacts of the Taking
Describe the Expected Benefits of the Conservation Program
Determine the Net Effects to Covered Species and Critical Habitat
Effects Analysis and Permit Issuance Criteria
Comparison of HCP Impact of Take Analysis with Section 7 Analysis of Effects
12.6.1 Impacts to Covered Species
12.6.2 Impacts to Critical Habitat
12.7 Comparison of HCP Impact of Take Analysis with NEPA Analysis of Effects
12.8 Comparison of NHPA Section 106 Process and NEPA Analysis of Effects
12.9 Permit Duration Considerations
12.9.1 Duration of Activities Covered
12.9.2 Determining if There is Enough Available Information
12.9.3 The Extent to Which the Conservation Plan Will Enhance the Habitat and
Increase the Long-Term Survivability of Covered Species
12.9.4 How Well the Monitoring and Adaptive Management Program Addresses
Uncertainty
12.9.5 Whether the Funding Strategy for the Conservation Program Is Adequate for the
Proposed Duration of the Permit
12.9.6 Permit Duration Decision
___________________________________________________________________________
12.0 Introduction
This chapter provides guidance on determining and describing the net effects to covered species.
Net effects are the effects that remain after balancing both the negative effects of take and the
positive effects associated with the Habitat Conservation Plans (HCP) conservation program.
This analysis is needed to fulfill the incidental take permit regulation which states that the
applicant must specify in the HCP, the impact that will likely result from such taking [50 CFR
17.22 (b)(1)(iii)(A) and 17.32(b)(1)(iii)(C)(1) for U.S. Fish and Wildlife Service (FWS); and 50
CFR 222.307(b)(5)(i) for National Marine Fisheries Service (NMFS)]. It is also used to help the
Services deciding official determine if the permit application meets certain issuance criteria [50
CFR 17.22 and 17.32(b)(2) (B) and (D) for FWS and 50 CFR 222.307(c)(2)(ii) and (iii) for
NMFS] (see section 10 regulations in the HCP Handbook Toolbox).
Determining net effects to covered species can be broken down into the following steps:
1.
2.
3.
4.

Determine the type and amount of take.
Describe the impacts of the taking.
Describe the expected benefits of the conservation program.
Determine the net effects to covered species.

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The Services will review the quality of and certainty associated with applicants’ analysis of net
effects to covered species, including:
● quality of the information used to support the effects analysis;
● transparency and repeatability of calculations associated with take and effects;
● whether the effects analysis used common accounting measures related to species
reproduction, numbers, and distribution;
● whether the net effects support recovery of the species in the wild;
● strength of logical arguments used to reach conclusions; and
● high and equivalent standards.
In this chapter we also briefly compare and contrast the HCP effects analysis with that of the
section 7 intra-Service consultation processes as well as the National Environmental Policy Act
(NEPA) (see the HCP Handbook Toolbox) and National Historic Preservation Act (NHPA) (see
the HCP Handbook Toolbox) effects analysis.
The last part of this chapter addresses permit duration considerations. While permit duration
discussions usually start early in the planning process, we waited until this part of the Handbook
to discuss it because determining the appropriate permit duration is intertwined with the effects
analysis.
12.1 Determine the Type and Amount of Take
The types and amount of take are initially determined (see Chapter 8) to help make better
informed decisions during the development of the HCPs conservation program (see Chapter 9).
Like many other aspects of the HCP planning process, determining the extent of take and
development of the conservation program are a dynamic and iterative process. As the
conservation program is developed, the applicant and the Services may find more ways to reduce
take. Once the take has been minimized, the applicant can determine the final type and amount of
anticipated take. This is the amount of take that they anticipate will occur from covered activities
over the life of the permit after accounting for the minimization measures that they commit to
implement. Keep in mind that the conservation program, while intended to be beneficial overall,
may also have some take associated with it, such as harassment of individuals or temporary
habitat degradation during restoration activities that rises to the level of harm. Take from
implementation of conservation actions must be added to the total amount of take associated with
the project.
For each covered species the description of anticipated take must include:
● both direct take and indirect take, e.g., bats being killed by a wind turbine blade; bat pups
dying due to the loss of a parent bat;
● the type of take (e.g., injury, mortality, harm, harassment);
● the amount of take (e.g., number of individuals) or if this cannot be determined then
another appropriate take surrogate such as acres of habitat or stream miles;
● the age and sex of individuals taken, if known;
● the specific causes or components of covered activities associated with take; and
● the duration of the take.
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12.2 Describe the Impacts of the Taking
Once the types and amounts of anticipated take of individuals has been determined, the Services
and the applicant can analyze the impact of the taking on the covered species. As described in
more detail in Chapter 8, the impacts of the taking should be described in the HCP relative to a
species reproduction, numbers, and distribution, which are usually interdependent e.g., reducing
a species reproduction will reduce its population size; reducing a species population size will
reduce its reproduction, particularly if those reductions decrease the number of breeding females
or the number of young that recruit into the breeding population; and reductions in a species
reproduction and population size normally precede reductions in a species distribution.
Helpful Hint: Analyze the impact of the taking in a stepwise fashion e.g., impacts to individuals, local
population, recovery unit, and finally on the species as a whole. Be sure the applicant understands
that the impacts of the take analysis must consider both current and probable future conditions and
trends that span the entire duration of the requested take.

12.3 Describe the Expected Benefits of the Mitigation Program
In the HCP, the description of benefits to the species is an accounting of the expected results of
the conservation program. To determine the benefits of the mitigation program it may be
necessary to start by considering the benefits to individuals, then to the local population, and
finally to the species as a whole. This is the same approach we use to determine the impacts of
the taking on the listed entity.
Benefits associated with conservation measures that avoid or minimize take should already have
been accounted for by reducing the amount of anticipated take. It is important not to double
count them when describing the benefits of the mitigation program designed to offset impacts of
that remaining take.
You should also consider the timing of mitigation when assessing benefits. Mitigation that
occurs prior to the taking is typically more desirable than mitigation that just keeps pace with it.
As you do when assessing negative impacts, the benefits of the conservation program should be
placed in the context of current and anticipated future conditions and trends over the duration of
the permit.
Accounting for benefits should also be relevant to species reproduction, numbers, and
distribution because these factors are associated with recovery of the species in the wild.
Following are a few examples of accounting benefits related to species reproduction, numbers,
and distribution.
Examples of benefits related to reproduction include: Increase in acres of suitable breeding
habitat or numbers of breeding territories; increase in numbers of offspring or survival rates;
reduction of threats to breeding areas.

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Examples of benefits related to species numbers include: Increase in number of individuals or
breeding pairs in a population; improved sex ratios, age distribution, or other demographics.
Examples of benefits related to population or species distribution include:
Percent reduction in habitat fragmentation; enhancement of species numbers at the edges of their
distribution to allow for future range expansion, providing for stepping stone habitat and
populations that can interbreed; expanding a species range back into areas from which they were
extirpated, or into new areas that provide suitable conditions; achievement of recovery plan
distribution goals.
12.4 Determine the Net Effect to Covered Species and Critical Habitat
The net effects are an accounting of the impact of take in comparison to the benefits of the HCPs
conservation program. This gives you the expected end or net result of implementation of the
HCP.
negative impact of the taking + benefits of the conservation program = net effect of HCP
The applicant must include this accounting for each covered species in the HCP. The analysis
must be transparent, reasonable, and repeatable, and use common accounting measures. Net
effects should also account for any expected changes in structure or function of critical habitats.
If the accounting used to describe negative effects to a covered species is different than that used
to describe the benefits, you resolve this by establishing a common accounting system, which
makes it possible to compare “apples with apples.” Habitat equivalency analysis (HEA) and
resource equivalency analysis (REA) (see the HCP Handbook Toolbox) are examples of tools
that applicants may use to assist with common accounting.
The analysis of net effects must also account for the requested duration of the permit.
Anticipated positive and negative effects must be considered for the entire permit duration to
determine net effects. Predicting species populations or survival needs into the future is very
difficult and usually leads to greater uncertainty regarding effects associated with permits of long
duration or for covered species of greatest concern. The conservation program, particularly the
monitoring and adaptive management, should be especially robust in these situations.
12.5 Effects Analysis and Permit Issuance Criteria
Two of the most important and difficult decisions the Services must make are determining to
what extent the proposed minimization and mitigation offsets the impacts of the take, and
whether or not it is the maximum that can be practically implemented by the applicant.
Fundamental to making these decisions is a thorough understanding of how the taking impacts
the species reproduction, numbers, and distribution, and the point at which, if any, minimization
and mitigation become impracticable from biological, economic, or technological perspectives.
Our reasoning and conclusions are documented in the section 10 findings and recommendations
memorandum. Two of the issuance criteria: (B) and (D) found at 50 CFR 17.22(b)(2)(i) and 50
CFR 17.32(b)(2)(i) for FWS; and (ii) and (iii) found at 50 CFR 222.307(c)(2) for NMFS), are

12-4

closely tied to the impact of the taking and net effects analysis in the HCP, and the jeopardy
analysis in the section 7 biological opinion.
“(B) The applicant will, to the maximum extent practicable, minimize and mitigate the
impacts of such taking” (FWS); “(ii) The applicant will, to the maximum extent
practicable, monitor, minimize, and mitigate the impacts of such taking” (NMFS).
As discussed in Chapter 9, maximum extent practicable (MEP) is the statutory standard in
section 10 of the ESA that establishes the level of minimization and mitigation that a permit
holder must achieve to receive an ITP from the Services. For the Services, minimize and mitigate
are part of a single finding when determining MEP. In practice however, sequential approaches
are usually applied, where impacts are first avoided, then minimized, and finally mitigated.
Though not necessarily required by the ESA, sequential approaches are required by a number of
federal laws, regulations, agency directives, and policies, and thereby an important consideration
for applicants seeking efficiencies through concurrent and integrated environmental
review/permitting processes. For example, U.S. Army Corps of Engineers and Environmental
Protection Agency regulations for mitigation under Section 404 of the Clean Water Act (see 40
CFR part 230) (see the HCP Handbook Toolbox) provides that “compensatory mitigation is not
considered until after all appropriate and practicable steps have been taken to first avoid and then
minimize adverse impacts.” Further, when carrying out the procedural responsibilities under the
NEPA, federal agencies must apply the mitigation meanings and consider the hierarchal
approach in the CEQ regulations (40 CFR 1508.20).
In light of these sequential approaches, the Services responsibility is to ensure that all practicable
measures to avoid and minimize adverse effects to covered species and their habitats are
considered, in that sequence, before mitigation. Notwithstanding, there may be some limited
circumstances where mitigating for species impacts may take precedence before avoidance or
minimization. In such circumstances, mitigating for impacts may be more practicable, and better
serve the conservation needs of the species. These may include, but are not limited to:
● when a species occurs at a location not critical to achieving the conservation objectives
for that species,
● when offsetting species impacts would be much more effective off-site, or
● when the affected site will be difficult to maintain based on projected land use changes
(e.g., the site is likely to be isolated from the population in the near future) or climate
change impacts (e.g., the site is likely to be unsuitable for the species in the near future).
In other circumstances, minimization may be the only practicable way to address the impacts of
take. These may include, but are not limited to:
● when the take is associated with a critically endangered species,
● when the impacts of take are highly controversial, or unknown, or
● when practicable ways to mitigate the impacts of take simply do not exist.
Conservation of species and habitats within ecologically functioning landscapes is essential to
sustaining populations over the long-term, especially in the face of new diseases, invasive
species, habitat loss, and other threats. Minimization and mitigation decisions must be informed
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by knowledge and assumptions about factors influencing the ability of landscapes to not only
sustain covered species and produce conservation outcomes necessary to offset the impacts of
take, but also sustain ecological conditions necessary for the minimization and mitigation to
succeed. Factors to consider include, but are not limited to, the spatial and temporal extent of the
minimization and mitigation, and how it addresses ecological conditions, trends, and
conservation objectives at the landscape scale.
(D) (FWS) or (iii) (NMFs) “The taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild.”
As discussed in more detail below and in Chapter 15, the Services finding for this permit
issuance criterion is a summary of the biological and conference opinion conclusions regarding
jeopardy or destruction/adverse modification of critical habitat. The impact of the take and net
effects analysis in the HCP, and the section 7 analysis in the biological opinion, are important
parts of the administrative record for the permit decision. How well these analyses support the
findings regarding this issuance criterion is dependent on the quality of the analysis. To avoid
any surprises regarding these findings, we should include section 7 personnel early in the HCP
development process so that issues can be addressed as early as possible.
12.6 Comparison of HCP Impact of the Take Analysis with Section 7 Analysis of Effects.
12.6.1 Impacts to Covered Species
In accordance with the requirements of section 10(a)(2)(A) of the Endangered Species Act
(ESA) (see the HCP Handbook Toolbox), the applicant must specify in the HCP the impacts that
will likely result from the take of a covered species, and what steps they will take to minimize
and mitigate the impacts of the taking. Our section 7 analysis determines if the impacts of take,
when combined with other past, present, and future impacts, are likely to jeopardize the
continued existence of the covered species in the wild (also known as a “jeopardy
determination”) or result in the destruction or adverse modification of critical habitat. Under the
ESA, jeopardy occurs when an action is reasonably expected, directly or indirectly, to diminish a
species’ numbers, reproduction, or distribution so that the likelihood of survival and recovery in
the wild is appreciably reduced. Note, the Services section 7 analysis must analyze the effects of
the proposed permit on all listed species and designated critical habitat that are reasonably
certain to be impacted by the covered activities, whether included in the HCP or not. If we
conclude that the incidental take permit would result in jeopardy or destruction/adverse
modification of critical habitat, we cannot issue the permit.
Helpful Hint: When the impact of take and section 7 analysis are done simultaneously, the effects
analysis can be completed in an efficient manner. However, achieving this efficiency requires
considerable coordination and trust between the applicant and Service staff.

12.6.2 Impacts to Critical Habitat
The term “critical habitat” for a threatened or endangered species means:

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(i) the specific areas within the geographical area occupied by the species, at the time it
is listed in accordance with the provisions of section 4 of this Act, on which are found
those physical or biological features (I) essential to the conservation of the species and
(II) which may require special management considerations or protection; and (ii)
specific areas outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of this Act, upon a determination by
the Secretary that such areas are essential for the conservation of the species (ESA §3
(5)(A)).
Under section 7 of the ESA, Federal agencies must ensure that their activities, including
activities that involve a Federal authorization or permit such as an incidental take permit, are not
likely to destroy or adversely modify critical habitat. To make this determination in cases where
a formal consultation is required, our biologists evaluate the impacts that are likely to be caused
by the proposed action to the physical and biological features or the intended recovery support
function of the affected critical habitat. For multi-year HCPs, this analysis includes the extent to
which there is rigorous monitoring to detect adverse effects to habitat and specific adaptive
management measures to respond to those effects, particularly where the effectiveness of the
conservation measures are uncertain.
Starting the section 7 intra-Service consultation early in the HCP planning process and
continuing it concurrently with HCP development helps applicants to avoid or minimize negative
effects to critical habitat through project design or other measures. The applicant can then avoid
a finding of destruction or adverse modification, which would prevent us from issuing an
incidental take permit.
12.7 Comparison of HCP Impact of the Take Analysis with NEPA Analysis of Effects.
In the HCP, the applicant is responsible for addressing impacts associated with taking a covered
species (e.g., impacts on reproduction, numbers, and distribution) that could result from the
proposed issuance of the permit and implementation of the HCP (section 8.3). For example, for
the federally endangered Indiana bat, the most significant impact of take pertains to the lost
reproductive contribution of individual bats taken (e.g., females killed), that is, the reproductive
contribution female bats would have made to the species reproduction, numbers, and distribution
had they not been taken. Our analysis of effects in a NEPA compliance document addresses
impacts associated with taking a covered species and impacts to other aspects of the human
environment (40 CFR 1508.14) that could result from the proposed issuance of the permit and
implementation of the HCP (e.g., effects caused by the conservation measures on all aspects of
the human environment). Under the NEPA, we also consider effects associated with alternatives
to the proposed action (40 CFR 1505.1(e)), including effects associated with not issuing a permit
(e.g., the “no action or status quo” alternative)(40 CFR 1502.14(d)). For example, a wind energy
facility currently avoids take of Indiana bats by curtailing their wind turbines at low wind speeds
(e.g., “status quo”), which also minimizes impacts to non-listed migratory tree bats. Issuing the
wind energy facility a permit to take Indiana bats when operating their wind turbines at low wind
speeds (e.g., proposed action) could significantly impact non-listed migratory tree bats, which
are part of the human environment.

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12.8 Comparison of NHPA Section 106 Process and NEPA Analysis of Effects.
The Services’ responsibilities under section 106 of NHPA and associated implementing
regulations (36 CFR 800) are to identify historic properties that may be affected and to take into
account the effect of issuance of an incidental take permit and implementing the HCP
conservation program on these properties (e.g., the federal “undertaking”). The appropriate time
to consider effects to historic properties is early in the HCP planning process when it may be
possible to reduce or eliminate negative effects by modifying activities. The Services are also
responsible for providing all consulting parties the documentation specified in 36 CFR 800.11(e),
subject to the confidentiality provisions of 36 CFR 800.11(c), and other documentation that may
be developed during the consultation to resolve adverse effects. Consulting parties include those
with a demonstrated interest in the project.
There is overlap, but there are also differences, in the implementing regulations for section 106
of the NHPA (36 CFR 800) and the NEPA (40 CFR 1500-1508; 43 CFR 43) with regard to
conducting an effects analysis. Section 6 of the NHPA addresses potential effects to historic
properties associated with the federal undertaking (36 CFR 800.16(y)), while the NEPA
considers a broader category of resources that includes historic properties and other aspects of
the human environment (40 CFR 1508.14). More information on analysis process and standards
under each of these laws can be found in Chapter 13 (NEPA), Appendix A, and the HCP
Handbook Toolbox.
12.9 Permit Duration Considerations
The regulations for incidental take permits tell us to set the duration of permits for a period long
enough so that the permittee has adequate assurances to commit funding for the HCP, including
conservation activities and land use restrictions. In determining the duration of a permit, the
Services’ decision makers consider:
● the duration of the planned covered activities;
● whether available information is sufficient to develop a conservation program and
determine effects to covered species over the proposed permit duration;
● how much certainty there is that the conservation plan will enhance the habitat and
increase the long-term survivability of covered species [see 50 CFR 17.22 and
17.32(b)(4) for FWS; and 50 CFR 222.307(e) for NMFS];
● how well the monitoring and adaptive management program addresses risk and
uncertainty; and
● whether the funding strategy for the conservation program is sufficient for the proposed
duration of the permit.
12.9.1 Duration of Activities Covered
Applicants usually request a permit duration that spans the entire length of their planned
activities. Planned activities may not take very long, such as construction of one commercial
building; take a moderate amount of time, such as construction and operation of a wind farm
during its expected 20-year lifespan; take place over a long duration, such as forest management;
or take place into perpetuity, such as county regulated activities or human occupation of new
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homes in habitat that continues to be occupied by the covered species. Planned activities also
include the time needed to complete mitigation, monitoring, adaptive management, other
requirements or conditions, and meet goals and objectives of the conservation program. Because
conservation benefits ideally occur prior to the take, conservation activities will either precede
or, at a minimum, keep pace with other planned activities.
12.9.2 Determining if There is Enough Available Information
Sufficient quantity and reliability of information is needed for all HCPs. In general, the longer
the proposed permit duration, the more information is needed to be able to project take, analyze
effects, and develop a conservation program for the duration of the permit. When analyzing the
effects to covered species of implementing the HCP, we must do so in the context of other
threats to the species, such as the effects of climate change, and anticipated environmental
conditions over the duration of the permit. Because there is less certainty regarding predicting
future conditions and effects of implementing the HCP over longer permit durations, highly
reliable information and analysis is essential to adequately protecting covered species. Therefore,
the amount and reliability of readily available information versus the time, money, and resources
needed to gather additional information will be a factor in determining the appropriate permit
duration. It is also important to consider the likelihood that the conservation measures will be
effective, and the severity of species impacts if they are not effective. A long-term HCP with
high certainty of effectiveness and low risk to the species may not justify a large investment in
data development and analysis. We must discuss with the applicant whether it is more important
to them to obtain a permit as soon as possible for a shorter duration, or whether they’d rather
spend the time and money that may be needed to develop an HCP for a permit that lasts longer.
12.9.3 The Extent to Which the Conservation Plan Will Enhance the Habitat and
Increase the Long-Term Survivability of Covered Species
The longer the proposed permit duration, the less certain we are likely to be about take levels,
impacts of the taking, benefits of the conservation program, and the status of the covered species
over the entire duration of the permit. We gain more certainty that we are adequately protecting
covered species if the applicant can add conservation actions to ensure the species is adequately
protected over the entire permit duration, especially if it’s for a longer period. However, for
species that are critically imperiled, there may be too much uncertainty regarding their future
status to meet the permit issuance criteria for permits of long duration regardless of mitigation
commitments.
12.9.4 How Well the Monitoring and Adaptive Management Program Addresses
Uncertainty
Longer permit durations require robust and scientifically sound monitoring and adaptive
management provisions to address uncertainties that increase with the duration. Robust
monitoring and adaptive management plans that must be developed with the applicant:
●
●
●

identify uncertainties and the associated measurable parameters to be monitored;
identify parameter thresholds or trends that indicate alternative actions are needed; and
provide alternative actions to meet HCP conservation goals and objectives.
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12.9.5 Whether the Funding Strategy for the Conservation Program Is Adequate for the
Proposed Duration of the Permit
Funding assurances, which must be guaranteed prior to permit issuance, may become more
difficult to ensure over extended periods of time due to changing economies or funding sources.
This is less of a concern for permits of shorter duration or for plans where all mitigation is
completed upfront before any take occurs. If, however, the mitigation will be implemented over
a long period of time, then the funding assurances will need to account for this.
12.9.6 Permit Duration Decision
While the Services ultimately determine the duration of incidental take permits, determining
what is a necessary and appropriate duration is in close coordination with the applicant. We
review the applicant’s permit duration request in the context of the factors described above and
any other factors necessary to ensure that the species being impacted by the plan are adequately
protected for the proposed duration of the permit.
Permits of long duration can provide a commitment to conservation activities with benefits to
species over a longer period of time. They can also have more uncertainties regarding future
biological, physical, and socio-economic conditions which make it more difficult to predict longterm effects to covered species and availability of resources to achieve conservation objectives.
If the duration of planned activities suggests a permit of long duration, then it may be possible to
minimize uncertainties through additional conservation actions, a robust monitoring and adaptive
management program, and a highly certain or viable long-term funding strategy. However, there
may be circumstances, such as those that involve a critically imperiled species, a lack of
available information, or a lack of time to plan for a longer permit duration, when it is not
possible or practical to adequately reduce the uncertainty associated with the permit. Under these
circumstances, it may be more appropriate for us to issue a shorter duration permit with the
option to renew.
Other things being equal, HCPs with shorter duration permits are usually easier to develop and
process, so they usually take less time, money, and resources to complete. This may make
permits of shorter duration more attractive to applicants under some circumstances. Even though
renewing a permit requires a formal review in light of current information and conditions, the
time and costs to renew a shorter duration permit may be less than the additional time and costs
needed to develop an HCP for a permit that covers a longer period of time.
HCP No Surprises assurances apply for the duration of a permit if the HCP is being properly
implemented. When we review a renewal request, we may identify the need for amendments to
the HCP and permit, including needing additional conservation commitments on the part of the
applicant. Once the amendments associated with a renewal are finalized, No Surprises assurances
would then apply to the amended HCP and permit for the duration of the renewal period.

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Chapter 13: National Environmental Policy Act Compliance
13.0
13.1

Introduction
Purpose and Need
13.1.1 Template NEPA Purpose Statement for Incidental Take Permit Applications
13.1.2 Template NEPA Need Statement for Incidental Take Permit Applications
13.2 Proposed Action
13.2.1 Template Proposed Action Statement for Incidental Take Permit Applications
13.3 Scope and Alternatives
13.3.1 Scope
13.3.2 Alternatives
13.3.2.1 No-Action
13.3.2.2 Proposed Action
13.3.2.3 Additional Alternatives
13.4 Public Participation
13.4.1 Public Participation Requirements
13.4.2 Let Interested Parties Know about The Application’s Comment Period
13.4.3 Incorporating Public Participation During the Development of an HCP
13.4.4 Considering Tribal Interests in an HCP
13.5 Levels of NEPA Review
13.5.1 Categorical Exclusion
13.5.2 Environmental Assessment
13.5.3 Environmental Impact Statement
13.6 Preparation of NEPA Document by Consultants
______________________________________________________________________________
13.0 Introduction
In phase two of Habitat Conservation Plan (HCP) planning, we have to concentrate on the HCP
and National Environmental Policy Act (NEPA) compliance documents. Our preparation of the
NEPA documents should progress along with the HCP as we gather and analyze data. Although
Chapter 3 provided some preliminary considerations for an HCP’s NEPA review, this chapter
discusses considerations specific to HCPs intended to complement the Services’ general NEPA
policy and guidance. Also see the HCP Handbook Toolbox for general NEPA regulations and
policy.
It is critical to the NEPA process that we carefully define the proposed Federal action to ensure
that we properly address impacts and alternatives and that we do not unnecessarily analyze
impacts that are not a result of our action and over which we do not have regulatory authority.
Being careful about this analysis will help ensure proper use of ours’ and the applicant’s
resources.
13.1 Purpose and Need
As we begin our NEPA analysis, we must define its "purpose and need." NEPA purpose and
need statements articulate the goals and objectives that we intend to fulfill by taking an action
under the Endangered Species Act (ESA) (see the HCP Handbook Toolbox). Our review of an
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HCP and issuance of an incidental take permit in accordance with the ESA and its implementing
regulations provide the underlying purpose and need to which we are responding by proposing
alternatives including the proposed action (40 CFR 1502.13).
Applicants must provide a project description and alternatives they considered in their HCP
(Appendix C). This description defines the applicant’s proposed activity that would result in
incidental take - the possible incidental take is the underlying “need” for our proposed Federal
action. However, we consider our purpose and need as being distinct from that of the applicant
(43 CFR 46.420, or 40 CFR 1502.13). We do not consider the need for a particular development
or land use, but rather our more narrow need to determine whether this non-Federal activity
complies with the ESA. We can define the purpose and need as follows:
●
●

Our purpose is to fulfill our section 10(a)(1)(B) conservation obligations under the ESA.
Our need is to fulfill these legal obligations in response to an applicant’s HCP and
request for an incidental take permit.

When we cooperate or share the lead with other Federal agencies, the purpose and need may
expand to encompass that agency’s actions, and we might use a joint purpose and need
statement. An agreed-upon purpose and need statement can prevent later disagreement or
confusion that may delay completion of the NEPA process. We should invite other Federal
agencies to cooperate early in our project review so that we can benefit from their expertise in
areas such as wetlands, water quality, etc., and so that other Federal agencies can make their
decisions based on the expanded review of the EA or EIS.
We provide the following two subsections (13.1.1 and 13.1.2) as suggested template language
for drafting NEPA documentation for HCP reviews. Also see the samples from completed
actions provided in the HCP Handbook Toolbox.
13.1.1 Template NEPA Purpose Statement for Incidental Take Permit Applications
Suggested Template Language: The Service’s purpose in considering the proposed action is
to fulfill our authority under the Endangered Species Act (ESA), section 10(a)(1)(B). NonFederal applicants, whose otherwise lawful activities may result in take of ESA-listed
wildlife, can apply to the Service for incidental take authority so that their activities may
proceed without potential violations of section 9.
To carry out these responsibilities, we must comply with a number of environmental laws and
regulations, Executive Orders (EO), and agency directives and policies. As the Service fulfills
these responsibilities and obligations, we will:
● ensure that issuance of the incidental take permit and implementation of the HCP
achieve long-term species and ecosystem conservation objectives at ecologically
appropriate scales, and [Consider ecosystem partnerships or prior obligations to other
agencies. What do we want for the covered species in the plan area?]
● ensure that the conservation actions approved with issuance of the incidental take permit
occur within a spatially explicit Landscape Conservation Design capable of supporting
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species mitigation projects over the long-term, or for a period commensurate with the
nature of the impacts. [Consider any available formal recovery planning for the species
or affected species population, results of any Landscape Conservation Planning,
resiliency to climate change effects, etc. How do our purposes related to the application
fit into our greater ecosystem responsibilities?]
13.1.2 Template NEPA Need Statement for Incidental Take Permit Applications
Suggested Template Language: Section 10 of the ESA specifically directs the Service to issue
incidental take permits to non-Federal entities for take of endangered and threatened species
when the criteria in section 10(a)(2)(B) are satisfied by the applicant. Once we receive an
application for an incidental take permit, we need to review the application to determine if it
meets issuance criteria. We also need to ensure that issuance of the incidental take permit and
implementation of the HCP complies with other applicable Federal laws and regulations. We
must ensure our permit decision complies with the National Historic Preservation Act; treaties;
and Executive Orders 11998, 11990, 13186, 12630, and 12962. In addition, the Service enforces
the Bald and Golden Eagle Protection Act (BGEPA), the Migratory Bird Treaty Act (MBTA),
and other requirements of the ESA in addition to section 10. If we issue an incidental take
permit, we may condition the permit to ensure the permittee’s compliance with BGEPA, MBTA,
and all ESA requirements.
On [date], the Service received an application from [applicant] for an incidental take permit
under the authority of section 10(a)(1)(B) of the ESA. If the application is approved and the
Service issues a permit, the incidental take permit would authorize [applicant] to take [covered
species][as appropriate, any permit may also contain other measures to mitigate (avoid,
minimize, and compensate) adverse effects to other Service-jurisdiction resources, such as listed
plants, marine mammals, migratory birds, or eagles] as a result of their [list and describe
proposed covered activities]. The Service has prepared this [NEPA document name] to inform
the public of our proposed action and the effects of the proposed action and its alternatives, seek
information from the public, and to use information collected and analyzed to make better
informed decisions concerning this incidental take permit application.
13.2 Proposed Federal Action
NEPA and its implementing regulations require agencies to analyze the environmental impacts
of proposed Federal actions and to prepare an environmental impact statement (EIS) for any
major Federal action “significantly affecting the quality of the human environment.” Interior
Department regulations (43 CFR 46.30 and 46.100) provide that our proposed action is subject to
the procedural requirements of NEPA if it would cause effects on the human environment (40
CFR 1508.14).
Defining the proposed Federal action is the first step to properly determine the scope of impacts
we must consider, and to identify the alternatives we must evaluate. For purposes of decisions
we make under ESA section 10, the definition of a “major Federal action” is relatively
straightforward. The regulations define “major Federal actions” as including “actions approved
by permit ….” 40 CFR 1508.18(b)(4). The Services are responding to an “application for a
proposed Federal action;” the requested Federal action ultimately being an issuance of an
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incidental take permit based on implementation of conservation measures provided in the
associated HCP. Some of the multiple project or applicant structures described in Chapter 3.4
may need special consideration in defining the Federal action. For example, if we develop a
general conservation plan (GCP) on our own initiative then there is no applicant seeking to
become the central, master permit holder (see Chapter 3.4.3). In addition, the specific activity
that a section 10 permit authorizes, the incidental take of endangered species, may be merely one
component of a large project involving non-Federal activities that do not require Federal review
or authorization. Determining whether our NEPA analysis should consider the impacts of that
larger activity requires analysis of the extent of our “control and responsibility” over the
applicant’s overall project (40 CFR 1508.18).
Properly defining the action subject to our control and responsibility requires a qualitative
assessment of the applicant’s project and the role of the Service with respect to that project. The
Service’s ability to exercise discretion over an ESA permit applicant’s non-Federal activities is
limited to ensuring the non-Federal entity’s permit application meets the statutory and
regulatory criteria in section 10(a)(2)(B) of the ESA and 50 CFR 17.22 (b)(l) and 17.32(b)(l).
This means that our ability to exercise control and responsibility over an applicant’s nonFederal activities under the ESA is limited to what is “necessary or appropriate for purposes of
the plan” (50 CFR 17.22 (b)(1)(iii)(D)). This interpretation is consistent with the basic tenet that
the Service does not authorize the applicant’s activities causing the incidental take, but rather
the take resulting from the applicant’s activities. We have control over the Federal action via
our ESA authority to determine whether an application complies with ESA and to place
modifying conditions on the incidental take permit to ensure ESA compliance. Sometimes the
species at issue may be limited to a small geographic area of a larger project. Given the
definition of “purpose and need,” the Services’ limited regulatory role, and, possibly, our
limited geographic nexus with a project, we may not have an obligation to assess impacts of the
entire private undertaking.
The extent of the Service’s environmental review under NEPA is dictated by the environmental
effects triggered by the federal action – issuance of the ITP and required conservation actions of
the HCP. HCPs proposed by applicants can range from small (less than an acre) singledeveloper HCPs to large regional HCPs that cover a myriad of Covered Activities over millions
of acres. Decisions concerning the appropriate scope of analysis under NEPA must therefore be
made on an HCP-by-HCP basis.
For all HCPs, the Service’s range of analysis must address the impacts of the activity(ies) for
which ITP coverage is requested (i.e., the Covered Activities).
In determining whether additional NEPA analysis is required, the extent of the Service’s NEPA
obligations can be considered at two ends of a spectrum. In both cases, we must consider
whether the federal action, in this case the ITP, is the legally relevant cause of the effects which
must be analyzed. Simple “but for” causation is not enough. There must be a reasonably close
causal relationship between issuance of the ITP and the effects under consideration to require
analysis under NEPA. On one end, if the issuance of the ITP for a portion of the project is
sufficient to grant legal control over a large portion or all of the project, then all the resulting
environmental effects of the project may need to be considered under NEPA. If a project’s
viability is founded on the Services’ issuance of the ITP, then all the resulting environmental
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effects of the project may need to be considered under NEPA. For example, the geographic
location of the Covered Species may be so integral to the project (e.g., the species occur on a
portion of the project site that is critical to the entire project) that the ITP is required for the
project to proceed. Thus the Services’ analysis for NEPA purposes may include portions of the
project beyond where the Covered Species occur.
At the other end of the spectrum, if a major portion of the project could proceed without the
ITP, then the Services’ analysis may be more limited (for example, where the Covered Species
occur only in a peripheral area of the project site that is not critical to the viability of the
project). Because the ITP would not be needed for the project to occur in this case, the Service
generally would not need to analyze the effects of the entire project under NEPA, and would
issue an ITP that only covers the limited area of the project site. Thus the scope of analysis can
be narrow at this end of the spectrum, limited to the impacts of the activity(ies) associated with
issuance of the ITP and required conservation actions of the HCP.
When implementing our ESA authority, it is also within our jurisdiction to ensure that activities
covered by the permit will be in compliance with other laws under our authority, for example
the Migratory Bird Treaty Act (MBTA), Marine Mammal Protection Act, and Bald and Golden
Eagle Protection Act (see these laws in the HCP Handbook Toolbox). We must also consider
other Federal authorizations necessary for elements of a non-Federal project when defining the
proposed Federal action and identifying the scope of impacts to consider, as discussed further
below.
The Federal action for NEPA purposes includes consideration of the following components:
●
●
●
●

The covered activities that cause incidental take,
The mitigation plan,
Other procedures to support implementation of the permit and HCP, and
Other measures as required (e.g., measures for MBTA, etc.).
13.2.1 Template Proposed Action Statement for Incidental Take Permit Applications

Suggested Template Language: The proposed action being evaluated by this [environmental
assessment (EA) or environmental impact statement (EIS)] is the issuance of an Endangered
Species Act incidental take permit by the Service that would authorize take of [covered species],
incidental to [covered activities], and implementation of the conservation plan in the associated
HCP, in accordance with the statutory and regulatory requirements of the ESA.
13.3 Scope and Alternatives
Under NEPA, “scope” refers to the “range of actions, alternatives, and impacts to be considered”
in an environmental document (40 CFR 1508.25). The definition of “scope” applies to EISs, but
the same concepts are applicable to EAs. Scoping may be helpful during preparation of an
environmental assessment, but is not required (43 CFR 46.235(a)). The scope of the NEPA
document includes the impacts of the specific activity requiring the incidental take permit, i.e.
incidental take resulting from the covered activities and the impacts of the plan’s conservation
program.
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13.3.1 Scope
Scoping helps us to identify the significant issues for detailed analysis. We should only analyze
issues in an environmental document if they are related to potentially significant effects of the
Federal action, or if they help lead to a reasoned choice among the alternatives. Not all issues
that the public raises require our analysis. For us to analyze an issue, it must have a cause and
effect relationship with the proposed action. Not analyzing an issue raised by the public does not
diminish the value of their input. In such circumstances, we should document and explain that
the proposed Federal action does not have the potential to significantly impact the resource that
is of concern to the public.
For each element or aspect of the Federal action (section 13.2) we identify the following for
possible analyses:
● Direct effects caused by the Federal action at the immediate time and place (40 CFR
1508.8),
● Indirect effects caused by the Federal action later in time, or at a distance, but are
reasonably foreseeable (40 CFR 1508.8 and 43 CFR 46.30), and
● Cumulative effects due to the incremental impact of the Federal action when added to
other past, present, and reasonably foreseeable future actions (40 CFR 1508.7).
The direct, indirect, and cumulative effects within the scope of our analyses must be a reasonably
foreseeable result of the Federal action; they must have a causal connection to our action to
analyze their significance under NEPA. Once the extent of the Federal action is identified, we
identify the direct, indirect, and cumulative effects as described above. These effects must have a
reasonably foreseeable causal connection to our Federal action for us to analyze their
significance under NEPA. As we consider the significance of the relevant environmental effects,
we should not automatically prepare an EIS whenever there is uncertainty . NEPA regulations
provide approaches for dealing with incomplete information (40 CFR 1502.22) that consider the
extent of the uncertainties. If we are still unsure about certain effects, preparing and circulating
an EA for public review can help identify the significance of environmental effects. By doing so,
we can potentially reduce uncertainty, analyze fewer effects in an EIS, or possibly conclude our
analyses with a finding of no significant impact (FONSI).
13.3.2 Alternatives
Alternatives (43 CFR 1502.14) explore other ways of meeting the purpose and need for an
action. Analysis of alternatives presents the environmental impacts of the proposal and the
alternatives in comparative form, to define the issues and provide a basis for choice among
options available to the Service. As we consider a range of alternatives to include in the NEPA
environmental document we can dismiss, without detailed analysis, any alternative that fails to
meet our action’s purpose and need. We usually do not need to consider a wide range of
alternatives, but only a reasonable range that meet the purpose and need for the Federal action.
Alternatives are distinguished based on differences in their approach to resolving the purpose
and need for action and the environmental impacts of implementing them, not on mere
differences in cost, technical elements, etc. Put another way, alternatives should represent
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substantively different options for the decision maker to consider, as opposed to simply
representing different designs of a substantively equivalent option. In some smaller project sites,
or for certain projects, where any project alternative would make the site unsuitable for the
covered species, it may be appropriate to analyze only a “no-action alternative” and an “action as
proposed.” This is especially so if the applicant lacks options to move the project to another
potential site.
13.3.2.1 No-Action
A “no-action” alternative must be described in each EA and EIS for HCPs. No-action means no
Federal action. What would likely happen if we did not issue an incidental take permit? How
might the applicant's proposed activities and effects change without an incidental take permit?
The “no-action” analysis gives us a benchmark to compare the magnitude of environmental
effects of the action alternatives. We use the difference in effects between the no-action and the
action alternatives to determine the significance of effects resulting from our permit issuance.
The “no-action” alternative can have different meanings depending on the situation. There are
two distinct interpretations of “no-action” that depend on the nature of the proposed project
activities under evaluation (43 CFR 46.30):
● First, ‘‘no-action’’ may mean ‘‘no change’’ from an ongoing management direction or level
of management intensity (e.g., activities will continue at the no take level).
● Second, ‘‘no-action’’ may mean “no project.”
In either of these situations, consider what an applicant might do if we denied their incidental
take permit. They could continue with existing land uses at “no-take” levels, they could modify
their proposed project to avoid incidental take, or if there is no way for the project to avoid take,
the project would not go forward
The first situation might involve an action such as updating an applicant’s land management plan
where ongoing programs initiated under existing legislation and regulations will continue, even
as new plans are developed. In these cases "no-action" is "no change" from current management
direction or level of management intensity, assuming the existing management does not result in
take. Because constructing an alternative that is based on no management at all is a useless
academic exercise, we may think of the "no-action" alternative in terms of continuing with the
present course of action until that action is changed. Consequently, we would compare projected
impacts of alternative management proposals in our NEPA analyses to those impacts projected
for the existing situation. In this case, alternatives would include management plans of both
greater and lesser intensity, especially greater and lesser levels of resource development. In the
case of an HCP amendment proposal, “no-action” might mean “no amendment” with continued
implementation of a current incidental take permit.
If the project does not involve development, but rather some operation or maintenance regime,
no-action generally means the applicant will continue to operate in a way that avoids take.
Examples of this version of “no-action” include timber harvesting in a manner that avoids take,
parkland operation and maintenance that avoids take, utility operation and maintenance that
avoids take, operation of wind turbines in a way that avoids take, etc.
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In the second situation, if you use ‘‘no-action’’ to mean no project, three different scenarios may
result: (1) no development occurs, (2) the applicant might be able to reconfigure their project to
take advantage of another Federal requirement so that incidental take could be exempted under
section 7 of the ESA, or (3) they can change or reduce their development project to avoid take. In
the last scenario, “no-action” includes the portions of a project that would not require an
incidental take permit and are reasonably likely to move forward without the rest of the project.
In our NEPA document, we need to describe and analyze the “no-action” scenario that is most
likely to occur without the HCP and permit.
13.3.2.2 Proposed Action
The proposed action is issuance of a permit authorizing take that would result from the project,
and implementation of conservation measures to mitigate that take, as contained in the draft HCP
that we have received from the applicant, or that the applicant has developed through
negotiations with us. It should include any permit conditions we might want to ensure
compliance with the ESA and implementation of the HCP. If the applicant provides sufficient
assured conservation actions, to avoid significant impacts on the environment, we may be able to
comply with NEPA’s procedural requirements by issuing an EA and a Finding of No Significant
Impact (FONSI), or mitigated FONSI.
13.3.2.3 Additional Alternatives
The alternatives considered in addition to the no-action and proposed action alternatives must
take into consideration the applicant’s project purpose and means to implement potential
alternatives. If an HCP meets issuance criteria, we are obliged to issue a permit. This
requirement affects what we might consider as reasonable when developing a range of
alternatives (43 CFR 46.420(c)). We may consider more alternatives as might be identified by
public comments; or we might use additional alternatives to evaluate unresolved conflicts
concerning project impacts, mitigation plans, or alternative uses of available resources. Our
NEPA analysis in an EA does not need to identify any alternative as “Service preferred” or
“environmentally preferred.” However, unless another law prohibits the expression of a
preference, a draft EIS should identify the agency’s preferred alternative, if one or more exists
(43 CFR 46.250(a)); a final EIS must identify the agency’s preferred alternative (43 CFR
46.425(b)).
Additional alternatives might be:
● Other reasonable courses of action necessary or appropriate for the HCP that meet ESA
requirements. We might modify or develop alternative components of the applicant’s
HCP, such as alternative permit duration, alternative covered lands, an alternative
composite of covered activities, alternative covered species, alternative conservation
program, etc.
● Other reasonable courses of action necessary or appropriate for the HCP that cause the
least damage to the environment and best protect, preserve, and enhance the human
environment. These environmentally preferable alternatives (43 CFR 46.30) would also

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include any potential mitigation measures not already included in the proposed action or
other alternatives.
● Applicants tend to highlight the avoidance measures built into a proposal. We can
compare this in our review to an alternative that does not incorporate any avoidance or
other conservation measures.
13.4 Public Participation
13.4.1 Public Participation Requirements
The June 1, 2000, Five-Point Policy addendum to the previous HCP Handbook established
specific required public review times for each NEPA level of review. We believe that our
implementation of the program since then has increased public acceptance. Likewise, our
increased emphasis on public outreach in support of Service programs, including the guidance
presented in this Handbook, has improved our public engagement in ways that often surpass that
provided by a Federal Register notice.
Therefore, in this revised Handbook, we establish new public comment periods for review of
draft NEPA and HCP documents.
● Low-effect and EA-level HCPs need only the 30-day notice period as required by ESA
section 10(c).
● Preparation of an EIS requires:
○
○
○
○

a notice of intent to prepare an EIS,
scoping public notice (can combine with notice of intent)(30 days),
a notice of availability of the proposed HCP and the draft EIS (60 days), and
notice of availability for the HCP, final EIS, and Record of Decision (30 days).

Also, for an EIS, we must coordinate with the U.S. Environmental Protection Agency (EPA) on
concurrent notices that they publish. We require a minimum 60-day notice of availability of the
proposed HCP and draft EIS. In some unusual situations, we may want to advertise for longer
periods (Chapter 14.6).
13.4.2 Let Interested Parties Know about The Application’s Comment Period
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. We announce all complete applications received in
the Federal Register. When practicable, the Services will announce the availability of HCPs in
electronic format and in local newspapers of general circulation.
13.4.3 Incorporating Public Participation During the Development of an HCP
The Services will strongly 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
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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 encourage the use of scientific advisory committees
during the development and implementation of an HCP. The integration of a scientific advisory
committee and perhaps other stakeholders improves the development and implementation of any
adaptive management strategy. Advisory committees can assist the Services and applicants in
identifying key components of uncertainty and determining alternative strategies for addressing
that uncertainty. We also encourage the use of peer review for an HCP. An applicant, with
guidance from the Services, may seek independent scientific review of specific sections of an
HCP and its operating conservation strategy to ensure the use of the best scientific information.
13.4.4 Considering Tribal Interests in an HCP
We recommend that applicants include participation by affected Native American tribes during
the development of the HCP. If an applicant chooses not to consult with Tribes, under the
Secretarial Order on Federal-Tribal Trust Responsibilities and ESA (see the HCP Handbook
Toolbox), the Services will consult with the affected Tribes to evaluate the effects of the
proposed HCP on tribal trust resources. We will also provide the information gained from the
consulted tribal government to the HCP applicant prior to the submission of the draft HCP for
public comment and will advocate the incorporation of measures that will conserve, restore, or
enhance Tribal trust resources. After consultation with the tribal government and the applicant
and after careful consideration of the Tribe’s concerns, we will clearly state the rationale for the
recommended final decision and explain how the decision relates to the Services’ trust
responsibility.
13.5 Levels of NEPA Review
Based on the magnitude of the action and, especially, on the significance of the anticipated
effects, different processes and associated documentation are required to satisfy NEPA
requirements (e.g., an EA or EIS). If a project does not qualify for a low-effect HCP, and thus a
categorical exclusion, then an EA or EIS is required. As discussed above, the scope of NEPA
review should focus on the effects of our Federal action. We should employ the lowest level of
NEPA review that meets the requirements of our NEPA analysis. Depending on Regional U.S.
Fish and Wildlife Service (FWS) procedures, signature authority for low-effect and certain EAlevel HCPs may be delegated to FWS Assistant Regional Directors or field office Project
Leaders.
The NEPA review level controls much of the time and effort put into development of the HCP
and review of the incidental take permit application.
13.5.1 Categorical Exclusion
The Council on Environmental Quality (CEQ) defines categorical exclusions as "...a category of
actions which do not individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect in [accordance with] procedures
adopted by a Federal agency in implementation of these [CEQ] regulations and for which,
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therefore, neither an environmental assessment nor an environmental impact statement is
required."
For an HCP to qualify for a categorical exclusion, none of the “extraordinary circumstances”
listed in 43 CFR 46.215 can apply. These include:
(a) Have significant impacts on public health or safety?
(b) Have significant impacts on such natural resources and unique geographic
characteristics as historic or cultural resources; park, recreation or refuge lands; wilderness areas;
wild or scenic rivers; national natural landmarks; sole or principal drinking water aquifers; prime
farmlands; wetlands (EO 11990); floodplains (EO 11988); national monuments; migratory birds;
and other ecologically significant or critical areas?
(c) Have highly controversial environmental effects or involve unresolved conflicts
concerning alternative uses of available resources [NEPA section 102(2)(E)]?
(d) Have highly uncertain and potentially significant environmental effects or involve
unique or unknown environmental risks?
(e) Establish a precedent for future action or represent a decision in principle about future
actions with potentially significant environmental effects?
(f) Have a direct relationship to other actions with individually insignificant but
cumulatively significant environmental effects?
(g) Have significant impacts on properties listed, or eligible for listing, on the National
Register of Historic Places as determined by the bureau?
(h) Have significant impacts on species listed, or proposed to be listed, on the list of
endangered or threatened species or have significant impacts on designated critical habitat for
these species?
(i) Violate a Federal law, or a State, local, or tribal law or requirement imposed for the
protection of the environment?
(j) Have a disproportionately high and adverse effect on low income or minority
populations (EO 12898)?
(k) Limit access to and ceremonial use of Indian sacred sites on Federal lands by Indian
religious practitioners or significantly adversely affect the physical integrity of such sacred sites
(EO 13007)?
(l) Contribute to the introduction, continued existence, or spread of noxious weeds or
non-native invasive species known to occur in the area or actions that may promote the
introduction, growth, or expansion of the range of such species (Federal Noxious Weed Control
Act and EO 13112) (see the HCP Handbook Toolbox).
FWS definitions for categorical exclusions are found at 516 Departmental Manual (DM) 8 (see
the HCP Handbook Toolbox). Section 8.5 of that directive says, “Categorical exclusions are
classes of actions which do not individually or cumulatively have a significant effect on the
human environment. Categorical exclusions are not the equivalent of statutory exemptions.” The
list of permit and regulatory functions that qualify as categorical exclusions encompass “the
issuance of ESA section 10(a)(1)(B) “low-effect” incidental take permits that, individually or
cumulatively, have a minor or negligible effect on the species covered in the habitat conservation
plan.” Therefore, although take is likely to occur under HCP implementation, accounting for the
minimization and mitigation measures proposed in the HCP would result in impacts so minor as
to be negligible.
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FWS has a screening form to determine if a project qualifies as a categorical exclusion. Service
staff must complete this form and include sound justification for the answer to each question on
the form (see the Low-Effect screening form in the HCP Handbook Toolbox.
National Marine Fisheries Service (NMFS) has a categorical exclusion for low-effect HCPs at
NOAA Administrative Order Series 216-6, Section 6.03e.3(d) (see the HCP Handbook
Toolbox). NMFS’s extraordinary circumstances would preclude a categorical exclusion for
actions that involve a geographic area with unique characteristics, are the subject of public
controversy based on potential environmental consequences, have uncertain environmental
impacts or unique or unknown risks, establish a precedent or decision in principle about future
proposals, may result in cumulatively significant impacts, or may have any adverse effects upon
endangered or threatened species or their habitats (NAO 216-6, 5.05c).
13.5.2 Environmental Assessment
An EA is a concise public document, prepared in compliance with NEPA that briefly discusses
the purpose and need for an action, and alternatives to such action. It provides sufficient
evidence and analysis of impacts to determine whether to prepare an EIS or a FONSI. If we have
already determined that an EIS is warranted, we do not need to prepare an EA.
The purpose of preparing an EA is to determine whether the proposed action would result in
significant effects to the human environment. To determine whether a proposed Federal action
would require an EIS, we must consider two distinct factors: context and intensity.
● Context refers to the significance of a proposed action in different settings What are the
possible impacts to local, regional, or national interests that might result from our action?.
Significance varies with the setting of the proposed action. For instance, in the case of a
site-specific action, significance would usually depend upon the effects in the locale
rather than in the world as a whole. Both short- and long-term effects are relevant.
● Intensity is the severity of the impacts relative to these different, affected settings. We
should consider the following in evaluating intensity (40 CFR 1508.27):
○ Impacts that may be both beneficial and adverse. A significant effect may exist
even if we believe that on balance the effect will be beneficial.
○ The degree to which the proposed action affects public health or safety.
○ Unique characteristics of the geographic area such as proximity to historic or
cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers,
or ecologically critical areas.
○ The degree to which the effects on the quality of the human environment are
likely to be highly controversial.
○ The degree to which the possible effects on the human environment are highly
uncertain or involve unique or unknown risks.
○ The degree to which the action may establish a precedent for future actions with
significant effects or represents a decision in principle about a future
consideration.

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○ Whether the action is related to other actions with individually insignificant but
cumulatively significant impacts. Significance exists if it is reasonable to
anticipate a cumulatively significant impact on the environment. Significance
cannot be avoided by terming an action temporary or by breaking it down into
small component parts.
○ The degree to which the action may adversely affect districts, sites, highways,
structures, or objects listed in or eligible for listing in the National Register of
Historic Places or may cause loss or destruction of significant scientific, cultural,
or historical resources.
○ The degree to which the action may adversely affect an endangered or threatened
species or its habitat that has been determined to be critical under
○ Whether the action threatens a violation of Federal, State, or local law or
requirements imposed for the protection of the environment.
The EA process culminates with a decision by the Regional Director on one of several
alternatives developed in response to the proposed Federal action. Once the Regional Director
selects an alternative, he or she will decide whether issuance of the incidental take permit,
including subsequent implementation of the covered activities and the conservation plan
described in the HCP, will significantly affect the quality of the human environment, as defined
by the NEPA.
An EA should be prepared in any one of these situations:
● an action is not listed as a categorical exclusion, or the action is not listed as an action
normally requiring an EIS, and a decision to prepare an EIS has not been made;
● additional analysis and public input are needed to know whether the potential for
significant impact exists;
● preliminary analysis indicates there is no scientific basis to believe significant impacts
would occur, but some level of scientific controversy exists;
● the action is described on the list of actions normally categorically excluded, but one of
the extraordinary circumstances applies; or
● potential significant effects that might otherwise require an EIS could be substantially
mitigated with proven mitigation measures or alternatives with proven mitigation
incorporated into it.
CEQ has advised agencies to keep the length of EAs to approximately 10-15 pages. This may not
always be possible, but to avoid undue length, the EA may incorporate by reference background
data to support its concise discussion of the proposal and relevant issues. We should avoid
preparing lengthy EAs except in unusual cases, where a proposal is so complex that a concise
document cannot meet the goals of Section 1508.9 and where it is extremely difficult to
determine whether the proposal could have significant environmental effects.
13.5.3 Environmental Impact Statement
CEQ regulations at 40 CFR 1502.1 state “the primary purpose of an environmental impact
statement is to serve as an action-forcing device to insure that the policies and goals defined in
the Act are infused into the ongoing programs and actions of the Federal Government.” In
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practice, it is a detailed written statement required by section 102(2)(C) of NEPA that analyzes
the environmental impacts of a proposed action, adverse effects of a project that cannot be
avoided, alternative courses of action, short-term uses of the environment versus the maintenance
and enhancement of long-term productivity, and any irreversible and irretrievable commitment
of resources (40 CFR 1508.11).
Preparation of an EIS takes significantly more effort than for an EA. Public notices are required
to announce scoping for the EIS. Public notice for the availability of the draft EIS is generally
combined with the public notice of availability of the HCP as required under ESA. We must also
coordinate with EPA on EISs as they publish their own public notices that we must time with
ours. Procedures for this coordination are in Chapter 14.5.
The text of final EISs should normally be less than 150 pages, and for proposals of unusual scope
or complexity, less than 300 pages.
Our EAs and EISs can be more focused and concise by applying these strategies:
● Scoping: Determine exactly what decision we must make, and tailor the document to
provide the information necessary for that decision. Clearly defined purpose and need
will focus analyses on appropriate alternatives and impacts.
● Relevance: Describe only aspects of the human environment that are relevant to the
proposed Federal action and the environmental effects to be analyzed.
● Readability: Use plain language, and keep it simple and consistent. Move technical
analyses into appendices.
● Appendices: Only material prepared for that particular NEPA review, or another relevant
NEPA review, should be considered for inclusion, and only include material essential for
understanding the NEPA document.
13.6 Preparation of NEPA Document by Consultants
EAs or EISs associated with an HCP almost always are prepared by a contractor paid by the
applicant, because the Services typically do not have adequate resources to meet the applicant’s
timing needs. No matter who prepares the NEPA document, we are ultimately responsible for
supervising its preparation and content, and the eventual conclusion and permitting decision. The
Services need to provide leadership, direction, guidance, and supervision when consultants
prepare our NEPA documents. We want to keep document preparation on track and focused on
necessary analyses.
In accordance with 40 CFR 1506.5, 43 CFR 46.105, and 516 DM 8, contractors execute a
disclosure statement prepared by us, or a cooperating agency, specifying that they have no
financial or other interest in the outcome of the project. The disclosure statement specifying that
the contractor has no financial or other interest in the outcome of the project must be included in
the draft and final NEPA document to memorialize and ensure there has been no conflict of
interest. Under certain circumstances, an applicant that is a State agency can be the primary
preparer of the NEPA document if the agency meets the requirements of section 102(2)(D) of
NEPA.

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Refer to the HCP Handbook Toolbox) for an example of a disclosure statement from a contractor
to include in a draft and final EIS. Alternatively, electronic copies can be obtained from the
Regional HCP Coordinator. Also see 40 CFR 1506, and 43 CFR 46, in the toolbox.
The Services should work directly with the contractor on NEPA-related matters and provide
technical direction in preparing the EA or EIS. To ensure a contractor’s draft NEPA analysis is
adequate and concise we must define our expectations early and provide strong oversight of the
NEPA contractor during document development. We must make clear to the applicant and to the
contractor, that although the contractor is paid by the applicant, the contractor is obliged to
follow the direction and guidance of the Services. We should tell the contractor which factors to
include for analysis. We should also give the contractor a page limit and a time limit for draft
completion for our review (while we may or may not enforce page limits, by giving contractors
better guidelines according to our expectations, we expect to stop receiving unnecessarily
lengthy NEPA analyses).
When several parties are involved in preparing the NEPA review and the HCP, it may be
desirable to have a memorandum of understanding (MOU), project agreement, or some other
similar document to establish roles and present a project schedule. For example, the MOU should
state whether the Services, the contractor, or both would conduct scoping. The MOU should also
address who will be responsible for printing the NEPA documents. We should inform the
contractor of all NEPA compliance requirements including CEQ regulations (40 CFR 15001508), Departmental requirements (43 CFR Part 46), and the Services requirements (e.g., FWS
Service Manual and this Handbook).
All such requirements must be met, including those for public involvement. Although the
Services must respond to comments received on the EA or EIS, the contractor may organize the
comments and prepare responses for the Services’ review and approval. The Services must also
independently review the EA or EIS before we accept it and take responsibility for its scope and
contents. No matter who drafts the NEPA documents, we are responsible for writing and
approving the decision document [FONSI if EA, record of decision (ROD) if EIS] or a Notice of
Intent (NOI) to prepare an EIS, if an EA finds that a significant impact is likely.
The HCP Handbook Toolbox also contains sample Requests for Proposals (RFPs) for developing
typical EAs and EISs.

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PHASE 3: Processing, Making a Permitting Decision, and
Issuing the Incidental Take Permit
Chapter 14: Completing and Reviewing the Permit Application and NEPA
Compliance Documents
14.0
14.1
14.2

Introduction
Documents Required to Complete the Application
Permit Application Forms, Application Fees, and Instructions
14.2.1 FWS Application Form
14.2.2 NMFS Applications
14.2.3 Incomplete or Insufficient Application
14.2.4 FWS Application Processing Fee
14.3 Field Office Review of the HCP
14.3.1 ESA Requirements
14.3.2 Issuance Criteria
14.3.3 Disqualifying Factors
14.3.4 Incomplete or Inadequate HCP
14.3.5 Certification of Application by the Field Office that the HCP is Statutorily
Complete
14.4 Field Office Review of the NEPA Analysis
14.5 Federal Register Notices
14.5.1 Purpose
14.5.2 Timing of the Notice
14.5.3 Composition and Content of Federal Register Notices
14.5.4 Format of the Notice of Availability
14.6 Required Public Comment Periods
14.7 Review by Regional Office and Legal Counsel
14.7.1 Regional Office Application Processing
14.7.2 Review by Office of the Regional Solicitor and General Counsel
14.8 Getting Federal Register Notices Signed and Published
14.8.1 FWS Procedures for Federal Register Notices
14.8.2 NMFS Procedures for Federal Register Notices – Headquarters
14.9 The Freedom of Information Act and the Privacy Act
14.9.1 The Freedom of Information Act (5 U.S.C. § 552)
14.9.2 The Privacy Act of 1974 (5 U.S.C. § 552a)
14.10 Tracking Databases
14.10.1 FWS Databases
14.10.2 NMFS Databases
14.11 Implementing Agreements
14.12 Services’ Tasks During the Public Comment Period
14.12.1 Compliance with Section 7
14.12.2 Drafting the HCP-Specific Biological Opinion – Format
14.12.3 FWS Intra-Service Consultation
14.12.4 NMFS Intra-Service Consultation
14.12.5 Inter-Agency Consultation Between the Services
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14.12.6 Integrating the Section 7 Compliance Process with Development of an HCP
14.12.7 Integrating HCPs and Federal Actions
14.12.8 Drafting the Findings and Recommendations Memo
14.12.9 Drafting the NEPA Decision Document
___________________________________________________________________________
14.0 Introduction
After helping applicants develop a draft Habitat Conservation Plan (HCP) that will cover their
actions that are likely to result in take, you’ll tell them it’s time for them to submit an
application, including their HCP. Then, we will review the documents associated with the
application and HCP, beginning in the field office and moving up through the Regional office
(unless authority to process certain HCPs has been delegated to the field office), and through the
solicitor’s/general counsel’s office.
You will need to ensure that the draft HCP meets all requirements. You will also need to ensure
that the National Environmental Policy Act (NEPA) (see the HCP Handbook Toolbox) analysis
is appropriate and complete. Following document review, we must make drafts available to the
public through the Federal Register. This chapter will help you through the process.
14.1 Documents Required to Complete the Application
The application package consists of the documents listed below, which the applicant should
submit to the Services once all the draft documents are complete. The responsibility for
producing these documents may vary by Regional practice. The U.S. Fish and Wildlife Service
(FWS) Manual procedures also allow Regions latitude in assigning some of the Services’ tasks
below:
● Applicant: FWS or National Marine Fisheries Service (NMFS) permit application
form(s), or both, filled out and signed by the applicant;
● Applicant: the appropriate processing fee (FWS only);
● Applicant: draft HCP, which should be statutorily complete before it formally goes to the
Services’ Regional office;
● Applicant: implementing agreement (if there is one - see section 14.11);
● Field office: certification from the FWS or NMFS field office that the HCP is statutorily
complete (contains all of the required elements);
● Field office: draft NEPA analysis, which is our document, is often contracted and paid for
by the applicant, but any contractor producing a NEPA analysis must be under the
supervision of and responsive only to the Services;
● Field office: draft notice of availability (NOA) of the receipt of application and draft
NEPA analysis, which is drafted at the Services’ field office; and
● Field or Regional Office as appropriate: cover letter to the Office of the Federal Register
certifying that the disk contains a true unsigned copy of the signed hard copy NOA, and
is usually drafted at the Services’ Regional office.

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Helpful Hint: The Federal Register NOA and cover letter may be signed by the Regional Director, acting
Regional Director, or by whomever signature authority was delegated to (for FWS) or the Assistant
Administrator (for Fisheries), Regional Administrator, or another designated official (for NMFS). Check
with the Regional HCP Coordinator if in doubt of the appropriate official.

Guidance in this chapter assumes that applicants have been coordinating closely with the
Services throughout HCP development. For larger plans, Services’ staff should request that the
applicant submit sections (or chapters) as they are completed for early review, to help ensure the
applicant is headed in the right direction and potentially to shorten the review time. When their
HCP is complete, applicants should send a complete draft to the field office (see section 14.3
below). The field office will tell the applicant when to submit their application and application
fee (FWS only), if applicable. State and local government agencies and any individual or
institution under contract for the proposed activities to a State or local agency are exempt from
the fee. Applicants should always submit documents to the field office with whom they have
been working, unless instructed to send them to the appropriate Regional office. See section 14.3
for more information regarding field office review of the HCP and application.
The draft NEPA analysis (which is the NEPA screening document that is the basis for making a
decision on whether the project needs an environmental action statement (for a categorical
exclusion), environmental assessment (EA), or environmental impact statement (EIS)) should be
completed and ready for review about the same time as the HCP.
After field office review of the application form, draft HCP, and draft NEPA analysis, the field
office should prepare the Federal Register NOA (see the HCP Handbook Toolbox). If the field
office has requested early review from the Regional office, the NOA may be prepared during that
review. When the NOA package is complete, the field office should send the application package
to the Regional office for review and further processing (see section 14.8 for more information
regarding the Regional office and legal counsel reviews).
In some cases, the field office may request the Regional office to conduct early review of certain
documents. Early reviews may help to expedite final reviews or settle issues on certain sections
of a document (e.g., mitigation strategies, unusual conservation measures). They may also ask
for early legal counsel review, among other reviews.
Note: Authority to process certain application packages (e.g., low-effect HCPs with categorical
exclusion-level NEPA analysis) has been delegated to field offices in some Regions. If this is the
case, the field office also handles processing publication of the Federal Register NOA. Field
office staff should follow the instructions below that otherwise would occur at the Regional
office.
Helpful Hint: Consistency matters. Write the Federal Register NOA according to the Office of the
Federal Register Document Drafting Handbook. Write and review all other documents according to
the Government Printing Office (GPO) Style Manual. Use consistent terminology within and among
documents for an application package.

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14.2 Permit Application Forms, Application Fees, and Instructions
Applicants must submit a completed permit application form along with their HCP that meets
general and specific permit requirements, and the applicable processing fee (FWS only) to the
field office. The official processing timeframe begins when the Regional office receives the
complete application package from the field office. If the FWS’ Regional Director has delegated
authority to the field office, the timeframe begins when the field office receives a complete
package. See the List of Service Regional Offices in the FWS application (see the HCP
Handbook Toolbox).
14.2.1 FWS Application Form
Applicants must complete and submit a Federal Fish and Wildlife Permit Application (form 3200-56) (see the HCP Handbook Toolbox), as required at 50 CFR 17.22(b)(1) and 17.32(b)(1),
for all applications for a new, renewed, or amended incidental take permit. Submitting a 3-20056 also provides information needed for any transfer or succession of a valid permit. Following
are instructions for this form, which also appear on the form. If the applicant is an individual,
he/she must sign the application and complete blocks A and D of the form. If the applicant is a
tribe, city, county, business, consortium, or similar group, the appropriate authority responsible
for actions granted under the permit must complete blocks B and D and sign the form. There
must always be an original signature and date in blue ink in the certification block. We do not
consider the application complete without the original, signed form.
Helpful Hint: The applicant must have authority to implement the HCP and permit. This means that
the applicant must have the authority to regulate or control (e.g., owns the permit area, has a lease
on the property to implement the HCP activities) all or applicable parts of the HCP so the conditions of
the HCP and permit are enforceable.

By signing form 3-200-56, the applicant for a permit is certifying that:
● the information submitted in the application is complete and accurate,
● the applicant understands that any false statements may result in criminal penalties, and
● the applicant has read and is familiar with applicable regulations.
Applicants must send their completed application package to the field office they have been
working with throughout the development of the HCP. The field office will review the package
and send it to the Regional office along with a certification that they found the HCP to be
statutorily complete (the HCP includes all mandatory elements). The field office may fax or email an application form to the Regional office to begin the permit processing phase, but only if
the original application with an original signature is submitted immediately afterward.
Until the form itself is revised, instruct applicants to ignore the space for the appropriate
Regional office address and phone number at the top of the form where it reads “Return to: U.S.
Fish and Wildlife Service (USFWS).” If applicants send an application package directly to the
Regional office, it will cause a delay because the Regional office will send it to the field office
for review and processing.

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14.2.2 NMFS Applications
There are three different NMFS permit applications, depending on the type of species the
applicant expects to take. Applicants should contact the NMFS Headquarters office at (301) 4278400 for the most current application forms for marine mammals, sea turtles, and other listed
species. Alternatively, applicants can go to the links found in the HCP Handbook Toolbox).
1. Marine Mammals
2. Sea Turtles
3. Other listed species
14.2.3 Incomplete or Insufficient Application
Applicants must provide all required information and certify that it is complete and accurate to
the best of their knowledge (on the FWS form 3-200-56, this is at block D, number 3). Although
field office staff may do early reviews to help ensure that the HCP is on track, we do not begin
the official review process until we receive a complete application package from the applicant
(application, processing fee (as appropriate), and HCP).
Helpful Hint: It is very important to keep a good record of incomplete, insufficient, or improperly
executed applications; our communication with, and recommendations to applicants; and their
responses (or lack of response) for the administrative record. Our record will show that we performed
our regulatory duty and protect Services’ staff from litigation due to any apparent inaction.

FWS - Incomplete Application
If the 3-200-56 form is not completely and correctly filled out, FWS staff must notify the
applicant in writing and put a copy of the correspondence in the project file, or by phone and
write a memo to the file for the project file and administrative record. If the FWS requests
information (e.g., required information is missing or unclear), we must notify the applicant that if
the information is not received within 45-days of the date of notification, we will consider the
application abandoned (50 CFR 13.11(e)). To ensure the administrative record is complete, the
Service should send a letter to the applicant at the end of the 45-day period confirming that the
application is considered abandoned and the applicant must submit a new application and fee if
they want to obtain an incidental take permit.
NMFS - Insufficient or Improperly Executed Application
For NMFS, if the application is insufficiently or improperly executed, NMFS staff must notify
the applicant. The applicant has 60 days to supply the deficient information or otherwise correct
the deficiency. If they do not, the application will be considered abandoned (50 CFR
222.302(c)(1)).
14.2.4 FWS Application Processing Fee
The FWS application fee, as stated in 50 CFR 13.11(d), is for processing the application, not for
the permit, so it is not refundable if the application is abandoned or the permit is denied. FWS
14-5

may only refund the fee if the applicant withdraws the application, in writing, before FWS
begins processing the application. Money orders or checks should be made payable to the U.S.
Fish and Wildlife Service. If the check or money order has been sent to the Denver Finance
Center, the Regional office must request a refund to the applicant. Checks and money orders
must be safeguarded as if they were cash and placed in a fireproof safe, except when being
processed by employees designated as collection officers. Application fees should be deposited
in a timely manner.
The required processing fees can be found in section E of the permit application. As of this
writing, the FWS processing fee for a new permit application is $100.00.
Tribes, State, or local government agencies (counties, cities, etc.), and any individual or
institution under contract to such an entity to conduct the proposed activities are exempt from
paying the fee.
Helpful Hint: There is no processing fee for NMFS permit applications.

14.3 Field Office Review of the HCP
We must clearly state our expectations, the section 10 HCP requirements, and permit issuance
criteria to applicants at the beginning of an HCP development effort. If an applicant has closely
coordinated with the field office throughout development of the HCP, the plan should have all
the right components, have an acceptable mitigation strategy, and preliminarily meet all
requirements. If this is the case, the field office will be able to tell the applicant when the draft
HCP and related documents are ready to submit as a complete, adequate application for a permit.
When such close coordination happens, the review of the draft HCP will be thorough, but it will
also be relatively easy.
Helpful Hint: Remember that the HCP is the applicant’s document. If any substantive changes are
needed, the applicant must approve them or make them itself.

If, on the other hand, an applicant submits a draft HCP without close coordination with the
Services or insists on submitting an HCP that doesn’t meet field office recommendations, the
field office review may take additional time. If there are issues to be resolved or negotiated (e.g.,
inadequate mitigation, a listed species not covered or not adequately covered), field office staff
should coordinate with the applicant and document all discussions and decisions for the file.
Disagreement between the applicant and field office staff may also be elevated to the Regional
office for assistance. The field office may also want to elevate any questionable issues before
making final agreements with an applicant.

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Helpful Hint: During the review of the HCP (and associated documents), use the information provided
to start (or add to) both the draft section 7 biological opinion (BO) and the section 10 findings and
recommendations memo (also known as “set of findings”, “HCP findings”, or “findings”). Although
these documents may not be completed until the public comment period has closed and any
comments submitted have been addressed, collecting information during this review will save time
and effort later. If an HCP is changing substantively, only include sections of draft BO and findings that
are not likely to change.

Things to consider when reviewing the HCP at the field office:
● if the HCP is low-effect, ensure that it meets the statutory requirements for a NEPA
categorical exclusion (use the screening form for low-effect incidental take permits and
NEPA environmental action statement located in the HCP Handbook Toolbox);
● whether the draft HCP is statutorily complete and meets applicable regulatory and policy
requirements (to the best of your understanding);
● ensure all required sections are in the HCP–see the required HCP elements and
recommended HCP format in Appendix C;
● ensure that climate change considerations (changes in climate and related direct and
indirect effects) are adequately addressed;
● make sure numbers add up and are consistent among all documents;
● make sure maps are correct, show the HCP and permit areas (if they’re different), and
indicate where they are on the larger landscape;
● ensure all definitions in the HCP meet Endangered Species Act (ESA) definitions (as
opposed to NEPA definitions);
● make sure all negotiated points are presented in the HCP as agreed upon (if not, clarify
with the applicant);
● ensure the publication-ready quality of all draft documents that will be sent to the
Regional office;
● manage materials for the official administrative record (although at this point the
documents are part of the file record, we advise that you maintain them with the
possibility of future litigation in mind—maintaining well-organized files is a standard
practice);
For FWS:
● enter the HCP into the Environmental Conservation Online System (ECOS) (entry of
HCP information to ECOS) (see the HCP Handbook Toolbox); and
● route the application package to the Regional office using the Data Tracking System
(DTS) (if the Region uses DTS) or whatever data tracking system is in use. If the HCP is
low-effect and signature authority has been delegated to the field office, the field office
completes the process as described as Regional office duties, below.

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14.3.1 ESA Requirements
FWS ESA HCP application requirements are described in 50 CFR 13 and 17.22(b)(1) for
endangered species and 17.32(b)(1) for threatened species (see the HCP Handbook Toolbox) and
include:
● a physical address or location of activities, such as section/township/range, county tax
parcel number, or some other formal legal description (50 CFR 13.12(a)(2)). The
applicant must also provide shapefiles of the plan area and permit area (if they’re
different). The field office will provide the applicant with specific requirements;
● a complete description of the activity(ies) for which incidental take will be authorized;
● the common and scientific names of the species requested for the permit to cover, as well
as the number, age, and sex of such species, if known; and
● a conservation plan that specifies:
o the impact that will likely result from the incidental taking (ESA section
10(a)(2)(A)(i)). This is not a tally of how many individuals (or surrogate, e.g., acres
of habitat) will be taken, but instead is a robust analysis of what impact the taking of
those individuals will have on the species or population, as appropriate;
o what steps the applicant will take to monitor, minimize, and mitigate such impacts;
the funding that will be available to implement such steps; and the procedures that
they will use to deal with unforeseen circumstances (ESA section 10(a)(2)(A)(ii));
o what alternative actions to such incidental taking have been considered and the
reasons the applicant rejected those alternatives (ESA section 10(a)(2)(A)(iii)). The
alternatives to the taking are not the same as the NEPA alternatives, but may be
similar. The ESA required alternatives are described, not analyzed,
▪ applicants need to tell the story of why they need a permit, describe the situation
and state why other options don’t work for them. For instance, at least one reason
an applicant would reject a no action alternative is that not doing the project
doesn’t meet the applicant’s needs (and it wouldn’t provide benefits to the
species); and
● other measures that the Director may require as being necessary or appropriate for the
purposes of the plan (ESA section 10(a)(2)(A)(iv)).
NMFS ESA Permit Application Procedures are outlined in 50 CFR 222.307(b) (see the HCP
Handbook Toolbox) and include:
● the type of application (marine mammals, sea turtles, or other listed species);
● the applicant’s name, address, and telephone number;
● the species or stocks, by common and scientific name, and a description of the status,
distribution, seasonal distribution, habitat needs, feeding habitats, and other biological
requirements;
● a detailed description of the proposed activity; and
● a conservation plan that specifies:
○ the impact that will likely result from the incidental taking (ESA section
10(a)(2)(A)(i); 50 CFR 222.307(b)(5)(i));
○ the anticipated impact of the proposed activity on the habitat of the species or stocks
(CFR 222.307(b)(5)(ii));

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○ what steps the applicant will take to monitor, minimize, and mitigate such impacts,
the funding that will be available to implement such steps; and measures (ESA
section 10(a)(2)(A)(ii); 50 CFR 222.307(b)(5)(iii));
○ what alternative actions to such incidental taking have been considered and the
reasons these alternatives are not being used (ESA section 10(a)(2)(A)(iii); 50 CFR
222.307(b)(5)(iv)). The alternatives to the taking are not necessarily the same as the
NEPA alternatives, although they may be nearly the same (e.g., a no-action
alternative does not meet the applicant’s needs and doesn’t provide benefits to the
species, or an applicant considers moving or decreasing a development project that
would result in no take or significantly reduced take, but those alternatives are not
financially viable options). The applicant describes these alternatives in the HCP, but
doesn’t have to analyze them; and
○ a list of all data sources used in preparation of the plan (50 CFR 222.307(b)(5)(v)).
14.3.2 Issuance Criteria
After the opportunity for public comment, the Services must find that the following requirements
are met [(ESA section 10(a)(2)(B); 50 CFR 17.22(b)(2), 17.32(b)(2), and 50 CFR
222.307(c)(2)]:
● the taking will be incidental to, and not the purpose of, carrying out an otherwise lawful
activity (50 CFR 17.3);
● the applicant will, to the maximum extent practicable, minimize and mitigate the impacts
of such takings;
● the applicant will ensure that adequate funding for the conservation plan (implementation
and mitigation) and procedures to deal with changed circumstances will be provided
(including what the applicant will do in the face of changed circumstances and the
funding to implement those actions);
● the taking will not appreciably reduce the likelihood of the survival and recovery of the
species in the wild;
● FWS:
o such other measures that the Director may require as being necessary or
appropriate for purposes of the plan; and
o the Director has received such other assurances that the plan will be implemented.
● NMFS:
o the applicant has amended the conservation plan to include any measures (not
originally proposed by the applicant) that the Assistant Administrator determines
are necessary or appropriate; and
o there are adequate assurances that the conservation plan will be funded and
implemented, including any measures required by the Assistant Administrator.
14.3.3 Disqualifying Factors
When the Services get an adequate draft HCP that meets all requirements, with a complete and
correctly filled out application for a permit, we process the HCP through the steps described in
this handbook and eventually issue a permit unless the HCP does not meet issuance criteria or
there are disqualifying factors.
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Helpful Hint: During initial discussions, staff should also inform applicants about disqualifying factors.
Do not wait until an HCP has been developed (see section 3.3). Applicants must self-certify that they
do not have any disqualifying factors in block D.3.

For FWS, review the factors described in 50 CFR 13.21(b) and (c). If the applicant does not
qualify for a permit because of any of the disqualifying factors, we should notify the applicant in
writing and put a memo to the file in the administrative record.
Disqualifying factors or reasons to deny a permit for NMFS are identified in 15 CFR 904 and 50
CFR 222.303(e)(1) (see the HCP Handbook Toolbox). We may deny a permit because of
violations of law or settlement agreements, nonpayment of fines, or other circumstances listed in
the regulations.
14.3.4 Incomplete or Inadequate HCP
Although rare, despite our best efforts, some applicants may choose to prepare and submit a draft
HCP without coordinating with the Services. If the HCP is incomplete (missing one or more
required elements), then the application is incomplete. If an applicant submits an incomplete
draft HCP, we must notify the applicant as soon as possible after receipt of the application. We
should send a letter to the applicant to explain all of the inadequacies and request that the
applicant revise the HCP to make it complete. If, on review, it is unlikely that the HCP will meet
issuance criteria, we must issue a notification letter to the applicant that specifically details how
the HCP would likely not meet issuance criteria. Be sure to include all of the issues in the
notification; it is unfair to applicants to piecemeal requests and will increase workload for staff.
It may be better to meet with applicants to help them get through the issues, but it is important to
keep good records of any meetings, discussions, or decisions for the administrative record. If the
application is complete, we must process it and make a permit decision.
Helpful Hint: If the applicant does not correct the inadequacies in a timely manner, consider
establishing a deadline, generally 30 days, after which we would consider the application abandoned.

Any notification of denial we give to the applicant should be in a formal letter, signed by the
permit signatory or Deputy Regional Director or Assistant Regional Administrator, stating that
we are denying the permit and the basis for denial. As an alternative, we may attach a letter of
denial (for the record), which will be effective in 30 days if the applicant doesn’t respond, to a
letter providing guidance on how to resolve the inadequacies. This gives them the opportunity to
do so if they choose to continue.
● Where possible, provide guidance on how any issues may be addressed to meet issuance
criteria and resolve any other inadequacies.
● State that the applicant is responsible for providing a response to the Service within 30
days as to whether or not they plan to address the identified issues.
● State that if the applicant does not respond within 30 days, the Services will consider the
permit application denied.
● If the applicant notifies the Services that it will not revise the application, we must send a
letter of permit denial to the applicant within 30 days. The permit denial letter should also
explain the bases for denying the permit application.
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o The permit denial letter must inform the applicant of the right to request
reconsideration (see below). Such an administrative appeal is required by FWS
regulations before the applicant can sue the FWS in Federal court.
o Provide information on what they need to supply in the appeal.
The FWS Regional office may coordinate with the Regional solicitor’s office on a denial
determination, as appropriate. The FWS does not have to publish a notice of permit denial in the
Federal Register.
NMFS must use the process in 50 CFR 222.303(e)(2) to deny permits. NMFS must notify the
applicant in writing of the denial of the permit request and include the reasons for it. If
authorized to do so in the notice of denial, the applicant may submit further information or
reasons the permit should not be denied. Such further information is not a new application.
NMFS must publish a notice of denial in the Federal Register within 10 days after the date of the
denial (50 CFR 222.303(d)).
If the applicant responds with the intent to address the inadequacies, the Services should work
closely with them to help resolve issues in a timely manner and to prevent further delays. During
this collaborative process, Services’ staff should document attempts to resolve inadequacies and
provide any interim determinations or resolutions to the applicant in writing. These written
communications inform and contribute to the administrative record if we cannot resolve
problems and have to deny the permit application. In addition, these written communications
provide support for our changes in position regarding the adequacy of the application, which is a
very important part of the administrative record.
14.3.5 Certification of Application by the Field Office that the HCP is Statutorily
Complete
When field office staff are ready to send the application package to the Regional office, they
must include a memo stating that they have reviewed the HCP and that they believe it is
statutorily complete and otherwise meets regulatory and policy requirements applicable to a
permit application (see an example Field Office Certification in the HCP Handbook Toolbox.
If authority to issue permits has been delegated to the field office, include a memo to the file
with the certification signed by at least one supervisory level below the field supervisor.
14.4 Field Office Review of the NEPA Analysis
Whether the Service wrote the draft NEPA analysis or a consultant developed the draft NEPA
analysis in close coordination with the Service, the field office review of the draft should be
relatively easy. See Chapter 13 for more information on NEPA and NEPA contractors.
Helpful Hint: The NEPA analysis is the Services’ document. No matter who wrote it, we can make any
changes we deem necessary.

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Things to consider when the field office reviews the NEPA analysis:
● If the NEPA analysis is a screening form, it must be brief, but also must contain enough
information for a decision maker to determine that it does indeed meet the categorical
exclusion level of NEPA.
● The summary section (as described in 40 CFR 1502.12 for an EIS) must adequately and
accurately summarize the NEPA analysis (EA or EIS) by:
○ stressing the major conclusions,
○ highlighting areas of controversy (including issues raised by agencies and the
public), and
○ highlighting the issues to be resolved (including the choice among alternatives).
Helpful Hint: although the summary section is only required for an EIS, also include it for a CatEx or EA
for quick reference.

● Verify that the draft in review is likely the proper level of NEPA for the HCP.
● An environmental assessment (EA) is a concise document and should not contain long
descriptions or detailed data (should be no more than 10-15 pages long) (40 CFR 1508.9,
40 Questions (36 a-b) (see the HCP Handbook Toolbox).
● An environmental impact statement (EIS) should be less than 150 pages, or for a very
complex HCP or one with an unusual scope the EIS should be less than 300 pages (40
CFR 1502.7).
● The NEPA analysis must be written in the Service’s voice.
● All required sections must be in the NEPA analysis (see Section 4. Writing NEPA
Documents in NEPA for National Wildlife Refuges: A Handbook in the HCP Handbook
Toolbox.
● All definitions in the document must meet NEPA definitions.
● Verify that numbers add up and are consistent among all documents.
● Make sure maps are correct, show the HCP and permit areas (if they’re different), and
show where they are on the larger landscape.
● Ensure that all draft and final documents forwarded to the Regional office are
publication-ready.
● Manage materials for the official administrative record.
● Be sure the purpose and need is the Service’s purpose and need (see section 13.1.1 for a
template purpose and need statement).
● There must be a reasonable range of alternatives considered, based on the purpose and
need for the proposed action.
● Be sure the impacts are actually analyzed, not just described.
● The cumulative effects section must consider all actions (Federal and non-Federal) that
have occurred, are occurring, and are reasonably certain to occur.
● The analysis must consider whether impacts are significant (includes context and
intensity) and provides the reason (i.e., it is [or is not] significant because . . .).
● Ensure that the analysis makes sense (connect the dots).
● Mitigation measures for impacts to the human environment must consider why, what,
who, where, and when.
● All conclusions in the NEPA document must be rationally connected to the facts used to
reach those conclusions.
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14.5 Federal Register Notices
Under section 10(c) of the ESA and Federal regulations (50 CFR 17.22 and 17.32 or 50 CFR
222.302 and 222.303), the Services must publish in the Federal Register a notice of receipt for
each section 10 permit application received (remember that the HCP is part of the application
package, so we make the HCP available for public review). NEPA regulations (40 CFR 1506.6
and 43 CFR 46.435) and our policy also require publication of an NOA of our NEPA analysis.
We fulfill both these requirements with a single NOA. A Federal Register NOA should be brief,
but it should provide enough information to agencies and the public so they will know whether
they want to review and comment on available documents (see the approved short NOA in the
HCP Handbook Toolbox). In addition to the NOA we publish for each HCP and application, if
the NEPA analysis leads to an EIS, the U.S. Environmental Protection Agency (EPA) publishes
a notice that an EIS is available for review. See the EIS Filing Instructions in the HCP Handbook
Toolbox for more information.
14.5.1 Purpose
Federal Register notices regarding HCPs may announce scoping, the receipt of applications, the
availability of documents for review and comment, meetings, or final permitting decisions (e.g.,
issuance, denials, revocations). The Services may also request comments on specific elements of
an HCP (e.g., adequacy of the mitigation plan, the conservation measures).
14.5.2 Timing of the Notice
Federal Register NOAs should be published as soon as possible after submission of the complete
application package and final review of the application package by Regional office staff.
For FWS NOAs, other than those for low-effect HCPs with categorical exclusions, they must be
reviewed and surnamed by the solicitor’s office. The Division of Policy, Performance, and
Management Programs (PPM) must also review and send them to the FWS Director’s and
Secretary of the Interior’s offices for authorization to publish the NOA. See PPM’s Web site in
the HCP Handbook Toolbox).
NMFS NOAs must be approved and cleared for publication through the relevant Regional
Protected Resources Division or Assistant Regional Administrator. Check with the Regional
HCP Coordinator for specific routing and process.
14.5.3 Composition and Content of Federal Register Notices
A Federal Register NOA generally consists of several parts, including the billing code, headings,
text, and a signature block. See Federal Register Notices (HCP Handbook Toolbox) that expands
on the guidance provided in the Office of the Federal Register Document Drafting Handbook
(HCP Handbook Toolbox) for how to write a Federal Register NOA. It describes what the NOA
should include, and includes examples of billing codes, department names, and subagency
names. A short NOA, already reviewed and approved by the PPM is also available in the HCP
Handbook Toolbox) (short NOA).

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There are slight differences between FWS NOAs, NMFS NOAs, and joint agency NOAs. When
filing a joint agency NOA there are additional specific coordination issues to consider. See the
Coordination Process and Example of a Joint Federal Register Notice in the HCP Handbook
Toolbox).
14.5.4 Format of the Notice of Availability
Formatting for a Federal Register NOA is very specific (see Federal Register Notices in the HCP
Handbook Toolbox ) for specific formatting examples. Federal Register NOAs must be written
according to the Office of the Federal Register Document Drafting Handbook first, and where
that is silent, then use the GPO Style Manual (see the HCP Handbook Toolbox). In addition, if
the signature block isn’t correct, the Office of the Federal Register will reject it. If that happens,
you have to get new signature copies and repeat much of the process. Seek a courtesy review by
PPM to be sure you won’t have problems that delay your process.
14.6 Required Public Comment Periods
The information received by the Services as part of an application package (e.g., application,
HCP, maps, background information, standard operating procedures, etc.) must be made
available for public review (ESA section 10(c)). We have established requirements for the length
of the public review/comment period for NOAs. If we involved other agencies and the public by
doing early scoping or public meetings, we must offer the public at least 30 days to comment on
the HCP and application supported by a categorical exclusion, EA, or mitigated EA (i.e., we
consider mitigation measures in an EA to avoid or lessen potentially significant environmental
effects of proposed actions that would otherwise need to be analyzed in an EIS) . Service policy
requires at least a 60-day comment period for a draft EIS, or on an EA for HCPs that are largescale or regional. If the public hasn’t been involved, we may need to add 30 days to the comment
period. For HCPs that are exceptionally complex or precedent-setting, we recommend a 90-day
public review/comment period. If we anticipate a lot of interest in an HCP, it may be prudent to
add 30 or 60 days to the comment period so you don’t have to reopen or extend it. Discuss this
with the Regional HCP Coordinator.
14.7 Review by Regional Office and Legal Counsel
Helpful Hint: When Regional office staff and legal counsel are reviewing and commenting on the draft
HCP, any substantive changes must be returned to the field office. Field office staff must seek
approval by the applicant, and typically the applicant makes those changes.

14.7.1 Regional Office Application Processing
Processing an incidental take permit application at the Regional office consists of reviewing the
application, draft HCP, and draft NEPA analysis. When the Regional office is satisfied that the
documents are complete, they announce receipt of the application and availability of the draft
NEPA analysis and draft HCP in the Federal Register and request public review and comment
on the draft HCP, draft NEPA analysis, and the application.

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The FWS - Regional Office:
● gets an application number from the Service Permit Issuance and Tracking System
(SPITS) and works with the HCP Coordinator;
● reviews the HCP and NEPA analysis according to the same considerations that the field
office uses, meaning that they must ensure it meets all statutory, regulatory, and policy
requirements (or document where requirements are not likely to be met);
● reviews the Federal Register NOA;
● sends the draft HCP, implementing agreement (if there is one), draft NEPA analysis, and
NOA to the Regional solicitor’s office for review and surname. This request may be
formal or informal, depending on Regional guidance (check with the Regional HCP
Coordinator); and
● processes the NOA by publishing it in the Federal Register by:
○ putting the NOA on surname for concurrence and signature (in DTS if your Region
uses DTS);
○ after signature, getting PPM to provide a courtesy review; and
○ processing the NOA as appropriate according to the NEPA level:
■ Categorical exclusion, EA, or mitigated EA: send the NOA package to the
Federal Register with a cover letter and a CD with the MS Word version of
the NOA with the signer’s name and title typed in under the signature line (see
Federal Register Notices in the HCP Handbook Toolbox);
■ EIS: upload the EIS to the EPA’s e-portal (CDX) (see EIS Filing and
Distribution in the HCP Handbook Toolbox); and
● send the NOA package (i.e., NOA, cover letter, and a CD with the
MS Word version of the NOA with the signer’s name and title
typed in under the signature line) to the Federal Register. Include a
letter to request publication on a certain date (to correspond with
EPA’s publication date).
NMFS - Regional Office
● ideally, NMFS field office staff will work with the applicant to develop a permit
application and conservation plan before it is submitted to the relevant Regional office;
● gets an application number from the Authorizations and Permits for Protected Species
(APPS);
● reviews the application and works with the applicant to make necessary changes or
requests additional information;
● after the application is complete and sufficient, NMFS publishes a notice of receipt and
request for comments in the Federal Register; and
● prepares the draft NEPA analysis document, and publishes an NOA of a draft EA (or
EIS) and request for comments in the Federal Register.
14.7.2 Review by the Office of the Regional Solicitor and General Counsel
Legal review of the permit application package ensures that the draft HCP and associated
documents meet the legal requirements of the ESA and NEPA. It is especially important to get
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legal review for large-scale, regional, multi-regional, or joint-agency HCPs, which are often
complex and address a variety of activities and species.
For FWS, the need for legal review of low-effect HCPs is less critical, and they may not need
legal review since these projects are by definition minor in scope and impact (e.g., permanent
impacts to a small area of low quality habitat within the plan area or temporary impacts to habitat
as long as they have minor or negligible effects on covered species). Although not standard
practice, and even if permit signature authority has been delegated to a Field Supervisor, a loweffect HCP and associated documents may need legal review. Seek advice from your Regional
HCP Coordinator. For NMFS, legal review of low-effect HCPs should be discussed with the
legal counsel to determine whether review is needed.
If we use an implementing agreement, it should have legal review. Though implementing
agreements are not contracts and have no independent legal force and effect, they are
incorporated into the incidental take permit as terms and conditions. A failure to comply with one
or more terms of an implementing agreement may be grounds for considering the revocation of
the incidental take permit. In all cases, the terms of an incidental take permit are controlling.
FWS Legal Review
It is FWS policy to require Department of the Interior (DOI) solicitor’s office (legal counsel)
review of all ESA section 10 permit application packages. However, solicitor’s review of HCPs
may be waived if the HCP meets all applicable criteria for low-effect HCPs and is categorized as
such. For other exceptions, discuss the HCP with the Regional HCP Coordinator.
The Regional office may request the solicitor’s review of certain parts of the HCP package,
formally or informally, and you should coordinate with the solicitor to determine which parts of
the package he or she should receive to complete an adequate legal review (or you may provide
the entire package). Typically that includes:
●
●
●
●

the draft HCP (and implementing agreement if there is one),
draft NEPA analysis,
NOA, and
eventually for the signature package, you must include the public comments, Service
response to comments, BO, findings, incidental take permit, NEPA decision document,
and real property documents, such as conservation easements, that will be used to
implement the plan.

Other than NOAs for low-effect HCPs with categorical exclusion level NEPA analysis, all draft
Federal Register NOAs must be reviewed and surnamed by the solicitor’s office. PPM also must
review all NOAs prior to publication.
Helpful Hint: It is important for the solicitor's office to review comments and responses to comments
because the comments often forecast potential litigation.

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● Coordination with the solicitor’s office on a permit application package should begin as
soon as possible in the permit processing phase and ideally during the development phase
of unique, large, unusually complex, or precedent-setting HCPs.
● The Regional HCP Coordinator (or field office staff, depending on the process in each
Region) should contact the Regional solicitor’s office either by official memorandum
(see example in the HCP Handbook Toolbox) or via email to request primary legal
counsel for review of a specific permit application package.
● The FWS can furnish a template implementing agreement to the applicant for initial
development (see template in the HCP Handbook Toolbox), and then the FWS and the
solicitor’s office will work with the applicant and the applicant's counsel, if any, to craft
the final implementing agreement.
● The legal counsel reviews the documents, as necessary, throughout the HCP process to
ensure regulatory and statutory compliance and to avoid problems found at the last
minute in documents submitted for final approval.
● In some Regions the solicitor’s office will forward a memorandum to the appropriate
official stating that the review is done and that the documents meet statutory and
regulatory requirements (or not), and if applicable, have been surnamed. Alternatively,
the solicitor may send an e-mail stating that the reviewed documents meet statutory and
regulatory requirements and the e-mail serves as a surname. Some Regional solicitors do
not send such memos or surname documents. Each Regional HCP Coordinator can
provide information on the process in his or her Region.
Helpful Hint: If the solicitor puts comments in track changes in a document you have provided for
review, those comments are protected by the attorney-client privilege and should NOT be released
outside the FWS. Solicitor comments are directed to the FWS. If comments are on the HCP, the field
office should coordinate with the solicitor to determine the appropriate way to communicate the
issues to the applicant. Generally, restating the comments using the FWS’s voice and removing the
solicitor’s comments is sufficient.

NMFS Legal Review
A NMFS section 10(a)(1)(B) incidental take permit application package, including supporting
ESA and NEPA analysis documents, must have legal review by the NOAA office of the general
counsel (legal counsel) either in the appropriate Regional office of the general counsel or the
General Counsel-Fisheries and Protected Resources Section. Legal review of low-effect HCPs
should be discussed with the legal counsel to determine whether review is needed.
Documents that should receive legal review include:
●
●
●
●
●

HCPs,
implementing agreements,
incidental take permits,
NEPA analyses, and
ESA section 7 consultations.

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Early involvement of the general counsel, starting in the HCP/incidental take permit planning
stage, is valuable to help steer development of the HCP and accompanying documents in a
direction that will assure that they meet the statutory and regulatory requirements for section
10(a)(1)(B) permits. Additionally, general counsel will provide guidance on compilation of the
administrative record. General counsel involvement in discussions with the applicant and NMFS
throughout the development process is helpful for the review process because the documents will
be developed in a legally sufficient manner, avoiding last minute issues in documents submitted
for approval.
In particular, NMFS will:
● contact the Regional NOAA general counsel office or NOAA General Counsel Fisheries and Protected Resources Section as appropriate, to learn which attorney will be
advising NMFS and reviewing the HCP and associated documents when a potential
applicant appears to be seriously interested in developing an HCP;
● involve the attorney in the development of the HCP, BO, NEPA analysis, implementing
agreement, incidental take permit, agency decision document, and response to comments.
The attorney should take the lead in developing the implementing agreement; and
● request and receive general counsel clearance of the HCP, BO, implementing agreement,
NEPA analysis (and corresponding finding of no significant impact (FONSI) or record of
decision (ROD), as applicable), incidental take permit, and decision memo before issuing
the permit and approving the associated documents.
The responsible attorney, after reviewing these documents, provides the requesting official
written clearance, stating that the incidental take permit and associated documents are legally
sufficient under applicable laws and regulations.
14.8 Getting Federal Register Notices Signed and Published
The Services have different procedures for getting Federal Register NOAs signed and published.
If you are using regulations.gov to collect public comments, for your convenience PPM will
publish the associated documents (see the HCP Handbook Toolbox).
14.8.1 FWS Procedures for Federal Register Notices
This section describes the procedures that the FWS Regional office should follow once they have
a draft NOA ready for publication. See the Federal Register Notices & (Entire) Process for
Publishing an NOA in the HCP Handbook Toolbox for additional information. The NOA must
go through the normal routing for the appropriate official’s signature. Check with the Regional
HCP Coordinator to determine who should sign the NOA.
1. The Regional HCP Coordinator, or assigned staff, reviews and edits the draft Federal
Register NOA of the:
○ draft surname package, including the draft NEPA analysis (or screening
document), draft HCP, implementing agreement (if any), and receipt of an
application for an incidental permit, and
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○ final surname package, including the final NEPA analysis (or screening
document), final HCP, and draft decision documents (findings memo and EAS,
FONSI, or ROD, or combined findings memo and NEPA decision document).
The Regional office then submits it to PPM for a courtesy review and requests a notice tracking
number (N#), by e-mail. An N# is appropriate for an HCP package where you don’t expect a lot
of comments. If you expect a lot of comments and will be using regulations.gov to collect and
compile those comments, request a docket number via FWS Form 3-2198 (see the HCP
Handbook Toolbox).
2. PPM will return the NOA with the N# or docket number.
3. The Regional office staff or HCP Coordinator makes changes to the NOA (final before
publication) and submits the surname package (in the following order) to:
i.
ii.
iii.
Iv.

Branch Chief, or acting (surname process goes through DTS if your Region uses it);
Division Chief, or acting
Assistant Regional Director – Ecological Services, or acting; and
any other affected Assistant Regional Director.

**Where the Regional office has delegated signature authority to field offices, check with the
Regional HCP Coordinator for the correct routing.
**Other documents include a note to reviewers, routing/surname sheet (if not part of the note to
reviewer), and the communications plan. Some Regions also include a news release, White
House/week-ahead report, and communication strategy. Check with the Regional HCP
Coordinator for the specific documents needed in the surname package.
4. The Regional office gets the appropriate officer’s signature on:
● 3 copies of the NOA (in blue ink), and
● Disk certification memo to the director of the Federal Register.
5. The Regional office staff types in the signer’s name and title on the hard copy and on the
electronic copy of the NOA. If a date is put on the hard copies, the same date must be
typed into the electronic copy. The hard copies and electronic copy must have identical
information in the signature block.
6. See the Federal Register Notices & (Entire) Process for Publishing an NOA in the HCP
Handbook Toolbox for additional information prior to completing the steps below.
To publish an NOA for an EA go to step 11.
If the NEPA analysis is an EIS, the following steps are also required:
7. The Regional office prepares the EIS filing documents (to publish an NOA for an EA go
to step 11);

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8. Get signatures of the appropriate official on EIS filing documents, including the letter
from the Region to the correct EPA regional office and memos to the DOI Library and
the NEPA Coordinator at Headquarters;
9. Upload the EIS onto e-NEPA at https://cdx.epa.gov (see e-NEPA Electronic Submittal
instructions in the HCP Handbook Toolbox);
● Ensure that courtesy copies of the EIS and NOA have been or are being sent to the
appropriate parties prior to publication:
○ 2 copies (1 paper, 1 CD) of the EIS and courtesy photocopy of the NOA to the
EPA’s Regional office (see the list of offices in the HCP Handbook Toolbox,
○ 2 copies (CDs) of the EIS and courtesy photocopy of the NOA to the National
NEPA Coordinator, and
○ 2 copies (1 paper, 1 CD) of the EIS (plus HCP and implementing agreement, if
appropriate) and courtesy photocopy of the NOA for the DOI Natural Resources
Library.
11. The Regional office submits the NOA to the Federal Register so it will publish on the
same date as EPA’s notice. The submission must include:
● 3 copies of the NOA (single-sided & double spaced) with each signed by the
appropriate official;
● CD with MS Word file on it (only). The name and title of the signer (and the date if it
is included on the signed copies) must be typed into the e-copy;
● A letter to the Office of the Federal Register certifying the Word version on the CD,
and in the letter are the same; and
○ If the NEPA analysis is an EIS, a letter requesting a specific date for publication
to correspond with the EPA’s notice (which may be signed by the Assistant
Regional Director – Ecological Services or field supervisor).
12. The Office of the Federal Register publishes the NOA.
14.8.2 NMFS Procedures for Federal Register Notices – Headquarters
The Regional office must ensure that all memoranda/letters/notices, etc., have been prepared
according to guidance in the Examples Package for NMFS Federal Register Documents (see the
link in the HCP Handbook Toolbox), Federal Register Document Drafting Handbook,
Operational Guidelines, and other policies and procedures issued by the Assistant Administrator
(AA) or NMFS/NOAA related to the review and clearance of regulatory actions, including
Protected Resources (PR) Intranet Writing Regulations (see the HCP Handbook Toolbox).
14.9 The Freedom of Information Act and the Privacy Act
14.9.1 The Freedom of Information Act (5 U.S.C. 552)
The Freedom of Information Act (FOIA) (see the HCP Handbook Toolbox) gives any person the
right, enforceable in court, to obtain access to Federal agency records, unless those records (or
portions of them) are protected from public disclosure by one of nine exemptions or by one of
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three special law enforcement record exclusions. People can make FOIA requests for any agency
records.
Prior to us publishing an NOA of the draft HCP, the HCP and supporting documents are not
generally made available to the public in the absence of a FOIA request. The applicant may
release their HCP if they so choose, but unless we’re doing so in response to a FOIA request, we
should not. The NEPA analysis can be withheld under FOIA until released under the NOA,
unless we release it to the applicant in which case it is no longer protected.
Most information cannot be protected after we take possession of the data including species
occurrence locations, which are often thought of as sensitive data. The following are examples of
exemptions that we can typically use to withhold proprietary, financial, and personal information
from being released when a FOIA request is submitted (not all [i.e., (1), (2), (7), and (8)]
exemptions are relevant and thus are not presented here):
(3) covered by a statute, which means information specifically exempted from disclosure
by another statute, such as the National Parks Omnibus Management Act of 1998, the
Archaeological Resources Protection Act of 1979, the Federal Cave Protection Act of
1988, or the National Historic Preservation Act Amendments of 1966, as amended
through 2006;
(4) trade secrets, commercial or financial information (confidential business information);
(5) deliberative/predecisional and attorney-client privileged documents;
(6) personal information affecting an individual's privacy; and
(9) geological and geophysical information, including maps, concerning wells.
Note that any determination we make to withhold information can be appealed in accordance
with each Department’s FOIA appeals process. Refer applicants or requesters to your FOIA
officer.
To access information about FOIA and the Services (see the HCP Handbook Toolbox).
14.9.2 The Privacy Act of 1974 (5 U.S.C. 552a)
The Privacy Act (see the HCP Handbook Toolbox) establishes a code of fair information
practices that governs the collection, maintenance, use, and dissemination of information about
individuals that Federal agencies maintain in systems of records. A system of records is a group
of records under the control of an agency from which information is retrieved by the name of the
individual or by some other identifier assigned to the individual. The Privacy Act prohibits the
disclosure of a record about an individual from a system of records without the written consent
of the individual, unless the disclosure is covered by one of twelve statutory exceptions (see the
full list of exceptions in the HCP Handbook Toolbox. For our purposes, we must not release
personal identifying information (e.g., social security/tax identification numbers, personal home
or cell phone numbers, dates of birth) provided to us in application forms.
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14.10 Tracking Databases
14.10.1 FWS Databases
The FWS uses several databases for tracking HCP information and permit numbers.
ECOS: The Environmental Conservation Online System (ECOS) tracks impacts and
conservation on the ground through both a conservation plans module and the Tracking and
Integrated Logging System (TAILS), which is the module that tracks impacts and conservation
through consultations (at this time TAILS does not include a section 10 module, but does include
a section 7 module). See Updating ECOS in the HCP Handbook Toolbox for specific
instructions.
The field office should enter the required information on each HCP into ECOS as soon as
possible in the planning stage. The Regional office will validate the information and add it to the
anticipated workload for the Region. If you need assistance with ECOS, discuss it with the
Regional HCP Coordinator.
TAILS: TAILS is the Service-wide tracking system for section 7, conservation planning, and
contaminants activities. Currently, tracking authorized take under section 7 in support of HCPs is
required at the field office level. We anticipate that eventually an HCP module will assist in
tracking authorized take and conservation in HCPs. If you need assistance with TAILS, discuss it
with the Regional HCP Coordinator.
DTS: The Data Tracking System is a national database for tracking documents as they move
through the FWS and the Department of the Interior. Discuss the use of DTS with the Regional
office administrative staff.
SPITS: The Service Permit Issuance Tracking System is the national database from which the
Regional office generates permit numbers. You may discuss SPITS with the Regional HCP
Coordinator. Generally, only Regional HCP Coordinators and Regional office staff have SPITS
access. However, some field office staff have read-only access to SPITS to help them track
incidental take permits and research permits for which they have implementation responsibilities.
If you need such access, contact the Regional HCP Coordinator.
14.10.2 NMFS Databases
The NMFS uses several databases for tracking and permit numbers.
ECOS: ESA-listed species for which NMFS has jurisdiction appear in ECOS; however, NMFS
does not use this system as widely for HCP purposes as FWS does.
APPS: The Authorizations and Permits for Protected Species is the NMFS-wide protected
resources permit tracking system. This online application system covers NMFS permits and
authorizations for federally protected species under the ESA and Marine Mammal Protection Act
(MMPA). It also covers Oregon State scientific taking permits.

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RTS: The Department of Commerce Regulatory Tracking System tracks the status of each
Department of Commerce rulemaking, facilitates the transmission of rulemaking documents to
Commerce, and collects regulatory information for submission to the Office of Management and
Budget (e.g., data required for the Unified Agenda of Regulatory and Deregulatory Activities).
These functions help streamline the agency’s development and implementation of regulatory
actions.
14.11 Implementing Agreements
Implementing agreements are joint Service/applicant documents that clarify the provisions of an
HCP and specify how the HCP will be carried out. Implementing agreements are not required
under Section 10 and are typically reserved for more complex, or multi-party plans. There is no
need for an implementing agreement where all of the agreed-upon measures are spelled out in
the HCP and permit. In many cases, legal counsel takes the lead in negotiating implementing
agreements, which are appended to the HCP. If the applicant wants an IA or you think we need
one, check with the Regional HCP Coordinator to determine the path forward.
We use these agreements at times between the Services and applicants or among applicants
where there are multiple parties involved in an HCP. Although implementing agreements are
technically not contracts, and have no independent legal force and effect, they must have legal
counsel review before we can sign them. When used, implementing agreements are incorporated
by reference into the incidental take permit as a term and condition and failure to comply with
the implementing agreement may be grounds for suspending or revoking the incidental take
permit. The terms of an incidental take permit are always controlling.
An implementing agreement can give the applicant or the Services a chance to clarify the
minimization and mitigation commitments in the HCP, the time frames for completion of
specific tasks, and the role assigned to the Services in reviewing and approving post-HCP
documents, such as required management plans, contours of specific covered activities, etc., to
minimize future disputes. However, it’s important to note that this information should also be
clear in the HCP and permit. Because the HCP is the applicant’s document and is written from
the applicant’s perspective, it may require clarification. While we may include all clarifying
provisions in the permit itself, doing so will typically require an amendment to the permit if the
Services and permittee later seek to modify the provision, whereas it can be easier to make those
changes to an implementing agreement as long as the Services and permittee agree.
Well-crafted implementing agreements may be incredibly helpful in sorting out the actual
commitments of the HCP. Legal counsel review almost always forces the applicant and the
Services to clarify the parameters, requirements, timeframes, and funding obligations.
Developing an implementing agreement can be a time-consuming process, but it forces clarity,
which is key for long-term, complex HCPs. If the HCP is filled with “should” and “mays” and
imprecise language, the ambiguity can be cleared up in the permit terms. However, since the
permit is drafted at the end of the process and implementing agreements are drafted early on, it
may be prudent to use an implementing agreement for complex, regional HCPs to fix the
problems (e.g., spell out who is responsible for each activity and when those activities must be
done) early.

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If the Services and an applicant decide to use an implementing agreement, all parties must agree
on its contents. If a draft implementing agreement is included with the application, it should be
made available for public review when the NOA for the draft HCP and draft NEPA analysis is
published.
14.12 Services’ Tasks During the Public Comment Period
After the NOA is published in the Federal Register and during the public comment period, the
field office should prepare drafts of the BO, findings and recommendations, and NEPA decision
document (EAS, FONSI, or ROD). These documents are only preliminary and are subject to
revision after we review public comments received on the draft HCP and draft NEPA analysis.
However, for large, complex HCPs, where there are numerous covered species or where there
are staffing constraints (e.g., same staff members are working on multiple documents), the
following documents may take considerably longer than the public comment period.
14.12.1 Compliance with Section 7
Section 7(a)(2) of the ESA requires Federal agencies to ensure their actions, such as the issuance
of an incidental take permit for an approved HCP, are not likely to jeopardize the continued
existence of listed species or adversely modify designated critical habitat. When a Federal
agency determines their proposed action may affect listed species and critical habitat, they must
consult with the Services. If the agency determines their proposed action may affect, but is not
likely to adversely affect species and the Services concur, the consultation process is complete.
However, if the proposed action is likely to adversely affect listed species or designated critical
habitat, we must develop and issue a BO that reaches a jeopardy or no jeopardy (or adverse
modification or no adverse modification) finding. A BO for an HCP must consider both listed
and non-listed, covered species; non-covered listed wildlife and plants species where adverse
effects are likely; and any designated critical habitat within the plan area.
The content and format of a BO are briefly discussed below. The section 7 consultation process
is discussed in detail in the Endangered Species Consultation Handbook (Consultation
Handbook) (see the HCP Handbook Toolbox), U.S. Fish and Wildlife Service and National
Marine Fisheries Service, 1998, and in our recent final rule revising the Definition of Destruction
or Adverse Modification of Critical Habitat (81 FR 7214). In addition, Regions 4 and 6 have
developed guidance for section 7 documents (R4 - Tips for Writing Biological Opinions and
Conference Opinions and R6 - Advice for Writing and Reviewing Endangered Species
Consultation Documents - both are available in the HCP Handbook Toolbox.
The Jeopardy Analysis
In accordance with policy and regulations, the jeopardy analysis in a BO addressing the
Services’ proposed issuance of an incidental take permit relies on four components:
1. the Status of the Species, which evaluates the range-wide condition, the factors
responsible for that condition, and the survival and recovery needs of the affected
species;

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2. the Environmental Baseline, which evaluates the past and present factors influencing the
current condition of the species, its habitat, and ecosystem within the area likely to be
affected by the proposed action (i.e., the action area), the factors responsible for that
condition, and the relationship of the action area to the survival and recovery of the
species;
3. the Effects of the Action, which assesses the direct and indirect impacts of the proposed
Federal action and the effects of any interrelated or interdependent activities on the
species; and
4. Cumulative Effects, which evaluates the effects of future, non-Federal activities
reasonably certain to occur within the action area on the species.
We make the jeopardy determination by evaluating the effects of the proposed Federal action in
the context of the species’ current status, taking into account any cumulative effects. This helps
us to determine if implementation of the proposed action is likely to cause an appreciable
reduction in the likelihood of the survival and recovery of the species in the wild.
The jeopardy analysis in the BO should emphasize consideration of the range-wide survival and
recovery needs of the species and the role of the action area relative to those needs. This is the
key context for us to evaluate the significance of the effects of the proposed Federal action and
cumulative effects.
An example of a jeopardy analysis in a BO addressing an HCP permit action is presented in the
HCP HCP Handbook Toolbox.
The Destruction or Adverse Modification Analysis
In accordance with policy and regulation, the destruction/adverse modification analysis in a BO
relies on the following four components:
1. the Status of Critical Habitat, which evaluates the range-wide condition of the affected
critical habitat in terms of its physical or biological features, the factors responsible for
that condition, and the intended recovery function of the critical habitat overall, as well as
the intended recovery function in general of critical habitat units;
2. the Environmental Baseline, which evaluates the condition of the critical habitat in the
action area, the factors responsible for that condition, and the recovery role of critical
habitat units in the action area;
3. the Effects of the Action, which assesses the direct and indirect impacts of the proposed
Federal action and the effects of any interrelated or interdependent activities on the
critical habitat in terms of how the physical or biological features (PBF), are likely to be
affected and how that impact is likely to influence the recovery support function of any
affected critical habitat units; and
4. Cumulative Effects, which evaluates the effects of future, non-Federal activities
reasonably certain to occur in the action area on the critical habitat in terms of how the
PBFs are likely to be affected and how that impact is likely to influence the recovery
support function of affected critical habitat units.

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Although the FWS formerly considered primary constituent elements (PCE), we now consider
the PBFs that support the life-history needs of the species, including but not limited to water
characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other
features. Features may:
● be a single habitat characteristic or a more complex combination of habitat
characteristics;
● include habitat characteristics that support ephemeral or dynamic habitat conditions;
● be expressed in terms relating to principles of conservation biology, such as patch size,
distribution distances, and connectivity.
Be aware that when assessing effects to critical habitat designated in older critical habitat rules,
many critical habitat designations may not include a detailed identification of physical or
biological features that are essential for the conservation of the listed species, or rely on PCEs to
identify such features. In consultations on actions that involve this type of critical habitat
designations, it may be necessary to use other best available scientific and commercial data to
more fully determine and document these elements or habitat qualities.
For the adverse modification determination, we evaluate the effects of the proposed Federal
action on the critical habitat in the context of the range-wide condition of the critical habitat. To
do this we take into account any cumulative effects to determine if that habitat would remain
functional (or would retain the current ability for the PBFs to be functionally established in areas
of currently unsuitable but potential suitable habitat) to serve its intended recovery role for the
listed species.
The destruction/adverse modification analysis in the BO should place an emphasis on using the
intended range-wide recovery function of the critical habitat and the role of the action area
relative to that intended function. This helps us to evaluate the significance of the effects of the
proposed Federal action and any cumulative effects to make our adverse modification
determination.
14.12.2 Drafting the HCP-Specific Biological Opinion – Format
For the most part, the following only addresses intra-Service specifics that differ from other BOs.
Refer to the Consultation Handbook for general instructions and either “Tips for Writing
Biological Opinions and Conference Opinions” (R4 – January 5, 2015) or “Advice for Writing
and Reviewing Endangered Species Act Consultation Documents” (R6 – July 2015) for more
specific advice. Both documents are in the HCP Handbook Toolbox.
The timeframes and data requirements in the following procedures are the same for all Federal
agencies and follow the section 7 consultation regulations at 50 CFR 402, except that as an
internal policy, Service actions must include consideration of candidate species as though
proposed for listing.
Helpful Hint: Every BO for an HCP should be as concise as possible while including all required sections
(show the analysis, show your work, connect the dots). Therefore, limit information to that which is
necessary and important for the decision maker. Incorporate background information by reference.

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Helpful Hint continued: Where possible, use tables or figures to illustrate complex information with
brief explanations, rather than extensive blocks of text.

Cover Memo – Since a BO for an HCP is intra-Service, it needs a brief cover memo (as opposed
to a cover letter) from the Service official signing it (the field office working with the applicant)
to the “action agency” official receiving it (generally the Regional office that issues the permit,
unless signature authority has been delegated to the field office). For FWS, be sure to include the
full TAILS number (e.g., 02E00000-2015-F-0001) on the memo and the title page of the BO.
Title Page – Although this requirement depends on which Region you’re in, adding a full title
page to precede the body of the BO is more professional. Include a signature block and date near
the bottom of the title page (or at the end of the BO, depending on Regional preference). A
signature and date on both the transmittal document and the title page of the BO is a redundancy,
but it is also practical because:
● it allows the BO to stand alone as an official report apart from the transmittal document;
● it immediately verifies that this is the final version; and
● if it is on the title page, the signature isn’t buried somewhere later in the document.
This approach can require the manager signing a BO to sign both the cover memo and the title
page. If both the cover memo and title page are dated, the dates should match. Also, depending
on the Region, there may be a requirement for a concurrence/non-concurrence signature line for
the “action agency” official processing the consultation and making the permit decision. Check
with the Regional HCP Coordinator for the Region in which the proposed action occurs.
Table of Contents (TOC) – Consider including a TOC if the BO exceeds 15 pages. It makes the
document more professional and shows the reader at a glance its overall structure. Our BOs are
increasingly distributed widely in electronic formats. Headings marked for inclusion in a word
processor-generated TOC can also become electronic bookmarks for quick navigation in the
document. For readers who are focused on particular aspects of a BO, this convenience is one
easy way to limit the frustration they may otherwise experience because the document can be
lengthy.
Executive Summary – Consider writing a short (no more than 1 page) summary of the action,
overview of the findings regarding adverse effects, and our conclusion. Including this section for
large and complex BOs is a useful and courteous addition for some of our higher level reviewers
and approving officials who have a limited opportunity to review biological opinions.
Consultation History – Since these BOs are intra-Service and for HCPs, this section is not
usually necessary, but Regional variations occur. If it is used, it should include the date formal
consultation is requested.
Description of the Proposed Action – The proposed action is the Service issuance of a section
10(a)(1)(B) permit to the applicant. It is necessary to state which species we will authorize
incidental take for and which species are otherwise covered under the plan (e.g., plants). The
activities that would cause take or impacts to the species are those proposed in the HCP, and
mandatory conditions (permit terms and conditions) are part of the Services’ proposed action.
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Briefly state what activities are covered in the HCP and refer to the HCP and NEPA analysis for
detailed descriptions.
The species-specific subsections include:
● Status of the Species,
● Environmental Baseline,
● Effects of the Action (be sure to consider a discussion of the effects pathway
methodology),
● Cumulative Effects, and
● Conclusion.
These are standard sections, and they should not include everything known about the species.
Ensure that the species lead is involved with development or review of all species-specific
information.
Incidental Take Statement – The Federal action taken in this instance is issuance of the
incidental take permit. We are required to do an intra-Service consultation to ensure that issuance
is not likely to result in jeopardy to a species or adverse modification of critical habitat. Because
incidental take is reasonably certain to occur as a result of issuing an incidental take permit, an
incidental take statement must be included with the BO. We use the following standard language
with respect to species covered in an HCP and associated ITP:
“The proposed [name] HCP and its associated documents clearly identify anticipated
impacts to affected species likely to result from the proposed taking and the measures that
are necessary and appropriate to minimize those impacts. All conservation measures
described in the proposed HCP, together with the terms and conditions of any section
10(a)(1)(B) permit or permits issued with respect to the proposed HCP, are incorporated
herein by reference as reasonable and prudent measures and terms and conditions within
this incidental take statement as stated in 50 CFR 402.14(i). Such terms and conditions
are non-discretionary. The amount or extent of incidental take anticipated under the
proposed [name] HCP, associated reporting requirements, and provisions for disposition
of dead or injured animals are as described in the HCP and its accompanying section
10(a)(1)B) permit(s).”
Helpful Hint: Although the standard language above is slightly different from that suggested in the
Consultation Handbook, we recommend using this language to prevent confusion.

The “Amount or Extent of Take” and “Effect of the Take” sections are standard as described in
the Consultation Handbook.
Reasonable and Prudent Measures and Terms and Conditions – For an HCP, use the
following standard language for covered species:
“The HCP permit contains all measures necessary to avoid, minimize, and mitigate
incidental take of [insert names of covered species] to the maximum extent practicable
and requires that the HCP be fully implemented. Monitoring will be conducted as stated
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in section (X) of the HCP. Therefore, no additional reasonable and prudent measures and
terms and conditions are necessary for [insert names of covered species].”
Reinitiation Notice (use standard language from the Consultation Handbook)
Literature Cited – The “Literature Cited” section reflects the best available scientific and
commercial data that the Services relied on to prepare the BO.
14.12.3 FWS Intra-Service Consultation
For purposes of the section 7 consultation, the Regional office is typically treated as the “Federal
action agency” and the lead field office is recognized as the “consulting agency.” The field office
that led the negotiation of the HCP usually conducts the intra-Service consultation and ultimately
signs the BO and the Regional office concurs (or not) to finalize the BO. However, each FWS
Region has established initiation and coordination requirements for when formal consultation is
initiated, and the levels of surname and signature of the BO, which varies.
This framework does not apply in situations where the Regional Director has delegated signature
authority to field office Project Leaders. In such cases, the FWS Regional Director must provide
guidance and procedures for implementing the delegated signature authority, including
conducting intra-Service consultation, at the time of delegation. Consultations for low-effect
HCPs must be consistent with national FWS policy as described in the Endangered Species
Consultation Handbook (FWS and NMFS 1998).
14.12.4 NMFS Intra-Service Consultation
For NMFS, the Regional (or Headquarters) office overseeing HCP development and related
processes conducts the consultation. All NMFS inter- or intra-agency consultations under ESA
section 7 are governed by a national policy directive (NMFS No. 02-110-12, December 12,
2005) issued in 2005 (see the HCP Handbook Toolbox). The policy directive delegates the
conduct of formal and informal consultation to each of the five NMFS Regional Administrators,
where applicable, and establishes process requirements for delegated consultations.
If unforeseen circumstances arise or new information becomes available after permit issuance,
and it leads NMFS to believe that the effects of the permittee’s activities on a covered species
will be sufficiently more severe than originally analyzed in the BO and may jeopardize the
species, NMFS shall proceed as follows:
1. it shall utilize its resources to conserve the species;
2. it shall work with the permittee to voluntarily reduce the effects of covered activities on
the species; and
3. NMFS shall reinitiate section 7 consultation on the permit and shall document its analysis
of the new effects in a biological opinion.
Conservation efforts undertaken by NMFS or the permittee shall be considered in the analysis, as
well as any information provided by the permittee regarding the probability of jeopardy. If

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reinitiation of consultation results in a finding that covered activities are likely to jeopardize the
species, then NMFS will:
(i) consult with the permittee to identify a reasonable and prudent alternative (RPA), and
modify the HCP accordingly; or
(ii) remove that species from the ITP, after which any prohibitions against take would
apply.
14.12.5 Inter-Agency Consultation Between the Services
The covered activities in a proposed HCP may affect species or critical habitat under the
jurisdiction of FWS and NMFS. In those situations, the Services should work together to ensure
that the impacts to all listed species are addressed. For example, if the proposed covered
activities in an HCP application submitted to FWS may also result in take of NMFS species,
FWS should notify the applicant of the need to contact NMFS and obtain an incidental take
permit from NMFS as well. Applicants should not assume that take of NMFS species will be
exempted through an inter-service Section 7 consultation between FWS and NMFS on the FWS
incidental take permit application, and it may be necessary to obtain authorization through an
incidental take permit that NMFS issues separately.
14.12.6 Integrating the Section 7 Compliance Process with Development of an HCP
In an effective application of the HCP process, we should provide technical assistance to the
applicant early in the process to guide the development of the HCP and to facilitate the
simultaneous preparation of key sections of the BO. We must ensure consistency between the
two documents and use the best available information and analytical findings. If it’s possible, it
is best to have a different biologist working on the BO than the one working with the applicant
on the HCP, but it’s not absolutely necessary (especially given workload and staffing
constraints).
Based on an understanding of the area likely to be affected, directly or indirectly, by the
proposed covered activities (i.e., the action area), and as a result of early coordination with the
applicant, we can develop a list of the species and critical habitats known or likely to occur
within the action area.
Relying on that list, we coordinate with the applicant to evaluate the condition of affected listed
species and critical habitat in the action area, the factors influencing that condition, and the role
of the affected area in the survival/recovery of those species and the recovery support function of
critical habitat. That evaluation constitutes the “Environmental Baseline” section of the BO and
will give us better information to help with the assessment of the status of covered species in the
HCP area, which is included in the HCP.
The baseline and status assessments provide key context for evaluating the significance of the
effects of the proposed HCP on those species for which the applicant is requesting coverage. It
also helps with the evaluation of the measures the applicant includes in the HCP to monitor,
minimize, and mitigate such impacts. In turn, these mandatory sections of the HCP give us better
information as we analyze the effects on listed species and critical habitat in the BO. This
integration should maximize consistency between these two documents.
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14.12.7 Integrating HCPs and Federal Actions
HCPs can set up the side boards or best management practices (BMPs) through their
conservation program for various kinds of development and activities within the plan area. They
can also offer streamlined approaches for Federal projects within the plan area. Not considering
other Federal agencies where overlap may result in delays. Taking the time and effort to explain
and collaborate closely with another Federal agency may be useful, but we should consider how
an approved HCP could inform or expedite a future related section 7(a)(2) consultation.
There are three basic approaches for including Federal Projects in an HCP or streamlining
section 7 compliance through the HCP process.
1. Including affected Federal agencies in the HCP and planning process. Federal agencies
cannot be provided with No Surprises assurances through a section 10(a)(1)(B) incidental
take permit, but they can be included in the HCP (but do not receive a permit; for an
example, see the Lower Colorado River Multi-Species Conservation Plan). This has been
done on several occasions, including the NiSource MSHCP and the Lower Colorado
River Multi-Species HCP. The Federal agencies are fully involved with the development
and implementation of the HCP. In processing the HCP package, their actions are
included in the HCP, the NEPA analysis and decision, and the intra-Service section 7
consultation, findings, etc.
2. Federal agencies request consultation under the intra-Service section 7 consultation with
the Service designated as the lead Federal agency. This approach is best used when the
Federal agency does similar actions as covered by the HCP, but was not completely
involved in the development of the HCP. This situation may come about due to the lack
of resources to commit to the HCP planning process, the agency’s desire to maintain
some separation from the HCP, or the agency is just not sure of the utility of early
involvement in the HCP process. Regardless of how it happens, this is a second chance
for an agency to gain a programmatic approach to its actions within an HCP planning
area. It is best used when the conservation plan in the HCP matches with the BMPs the
agency uses for its actions (i.e., industry standards). To use this approach the Federal
agency would send a letter to the Service requesting consultation for the actions they
carry out that are covered in the HCP, and including a statement that they accept all
conservation measures in the HCP and designate the Service as the lead agency for the
consultation.
3. A Federal agency requests consultation with the Service for an action, and incorporates
the HCP conservation measures into their Biological Assessment. This approach is useful
if the action agency did not want to be involved in the HCP, but after the incidental take
permit was issued decided that participation would streamline the process. This is
commonly done with the Army Corps of Engineers and Federal Highway Administration
projects. Since the effects of the action have already been analyzed in the HCP intraService consultation, all that may be required is an update to the species status and the
incidental take statement in the BO for the HCP.

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These three options provide pathways for Federal agencies to streamline their consultation
process by integrating their approaches and compliance with the HCP process. There are a few
things to keep in mind.
● First, consultation under section 7 is the Federal agency’s responsibility. Assuming that
the applicant desires an HCP integrated with other Federal actions, the other Federal
agency has their own discretion in implementing their section 7 responsibility. The
Services or the Applicant cannot force a Federal agency to participate or define how the
Agency will participate in the HCP planning process.
● Second, the consultation process for the Federal agency must be complete before it can
commit any irreversible and irretrievable commitment of funds or other resources that
may foreclose the formulation or implementation of any reasonable and prudent
alternative measures in accordance with section 7(d) of the ESA. That means that if the
Agency uses option 3 above, prior to the start of any action or mitigation the consultation
must be concluded.
● Finally, one of the concerns of the Federal Agency may be that participation in HCP
planning process may lock them in and limit their options on future actions. While the
goal would be for the majority of their projects to be covered through these approaches,
nothing in the process removes the Federal agencies’ discretion. Therefore, if a project
comes in that includes activities that are not covered activities in the HCP or the
conservation program of the HCP, the Federal agency could initiate section 7
consultation as it normally would without an HCP covering the project area.
14.12.8 Drafting the Findings and Recommendations Memo
Service staff should also draft the findings and recommendations memorandum during the public
comment period (see the findings and recommendations memo template in the HCP Handbook
Toolbox). This draft document is preliminary and should not be completed until after thorough
review and consideration of public comments submitted during the public review period to
ensure all relevant issues have been addressed.
14.12.9 Drafting the NEPA Decision Document
If the Service hasn’t started work on the NEPA decision document, we should begin during the
public comment period (see the NEPA decision documents template in the HCP Handbook
Toolbox). However, keep in mind that this document is preliminary and should not be completed
until after thorough review and consideration of public comments submitted during the public
review period to ensure all relevant issues have been addressed.

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Chapter 15: Finalizing the Habitat Conservation Plan (HCP) and
Environmental Compliance Documents
15.1

15.2

15.3

15.4
15.5

Reviewing and Responding to Public Comments
15.1.1 Comments on the HCP
15.1.2 Comments on the NEPA Analysis
15.1.3 No Comments Received
15.1.4 Controversy
15.1.4.1 Public Objection
15.1.4.2 Scientific Controversy
Finalizing the HCP and NEPA Analysis
15.2.1 FWS Final Review
15.2.2 NMFS Final Review
Completing the Section 7 Biological and Conference Opinion
15.3.1 Relationship Between the Incidental Take Permit and the Incidental Take
Statement
15.3.2 Conferencing on Potential ESA-Listed Species (Proposed, Candidate, or Unlisted
Species)
15.3.3 Including Plants
Completion of National Historic Preservation Act Section 106 Requirements
NEPA Decision Documents
15.5.1 Environmental Action Statement
15.5.1.1 When to Prepare an Environmental Action Statement
15.5.1.2 Content of the Environmental Action Statement
15.5.1.3 Processing the Environmental Action Statement
15.5.2 Making the Decision on an Environmental Assessment
15.5.2.1 Finding of No Significant Impact
15.5.2.2 Content of the Finding of No Significant Impact
15.5.3 Making the Decision on an Environmental Impact Statement
15.5.3.1 Record of Decision Checklist
15.5.3.2 Content of the Record of Decision
15.5.4 Joint Federal-State Processes

____________________________________________________________________________

15.1 Reviewing and Responding to Public Comments
If the Services received comments resulting from the notice of availability (NOA), meetings or
hearings, workshops, etc., staff should screen the comments to determine whether any important
new issues, reasonable alternatives, or mitigation measures have been suggested.
There are two options for documenting the response to comments (either may mean changing the
Habitat Conservation Plan (HCP) or National Environmental Policy Act (NEPA) document (see
the HCP Handbook Toolbox):
● Summary of Comments (see example in the HCP Handbook Toolbox)
● Comment Matrix (see example in the HCP Handbook Toolbox)
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Check with the Regional HCP Coordinator for recommendations on the preferred method of
responding to comments. Whatever process you use, response summaries should clearly state the
name of the NEPA analysis and its date, as well as the Federal Register (FR) reference (volume
number FR first page number: e.g., 80 FR 18226, 78 FR 38895).
A summary of comments may be a stand-alone document or an appendix to the NEPA analysis
or decision document. If it is more than a few (6-8) pages, it should have a table of contents for
easy reference. It should include:
● comments (in total) from each commenter;
● whether comments were on the NEPA analysis, HCP, general comments, or unrelated
comments (you only need to thank them for an unrelated comment);
● how the comment was addressed; and
● where (in the appropriate document) the comment was addressed.
A comment matrix is usually an appendix to the NEPA analysis, the HCP, or both. The matrix
should have a column for:
● the commenter’s name and affiliation (if provided);
● a comment number (in case any commenter has more than one comment);
● whether the comment and response is on the:
○ HCP,
○ application, or
○ NEPA analysis;
● where (page or section) the comment was addressed in the HCP or NEPA analysis; and
● the Services’ response (a column for each FWS and NMFS if both need to respond).
Helpful Hint: Be sure to actually address the comments in the preferred format, not just state where
the issue is discussed in the HCP or NEPA analysis. If not incorporating suggestions from comments
into the HCP or NEPA analysis, explain why.

15.1.1 Comments on the HCP
The Services bear the responsibility for both requesting and responding to public comments.
Collaborating with the applicant may be the most efficient and effective way of developing a
response to comments on the HCP, especially when the comments are about the applicant’s
proposed activities. An applicant’s input may also strengthen the Services’ permit decision, and
help protect it from legal challenges. However, any formal response to public comments on the
HCP will ultimately come from the Service issuing the permit.
15.1.2 Comments on the NEPA Analysis
If comments identify major substantive issues, or suggest new alternatives not adequately
covered in the NEPA analysis, we must rewrite the NEPA analysis to incorporate them if:

15-2

● They are new, reasonable alternatives that are substantially different from current
alternatives that also serve our purpose and need (Chapter 13.3.2.3), or
● The new issues have a cause and effect relationship to our permit action (Chapter 13.3.1).
Changes made under these circumstances mean that before reaching a permit decision we must
republish the NEPA analysis for another round of public review and comment. If any of the
issues point to the potential for unmitigated, significant impacts in an environmental assessment
(EA), we should discuss potential mitigation with the applicant and incorporate necessary
changes. If the applicant will mitigate for the significant impacts, thus bringing them to a level of
insignificance, we should incorporate those changes and proceed with the EA. If the applicant is
unwilling or unable to mitigate for the significant impacts, we must write a notice of intent to
prepare an environmental impact statement (EIS) (Chapter 13.4.3). In either case, after
authorization to publish the notice (FWS only), we must send it to the Federal Register for an
additional 30-day review and comment period. If no substantive issues arise from comments,
there is no need for a second review period.
If comments offer corrections or add factual information that does not bear on the determination
of significant impact, the information should be added to the text of the NEPA analysis where
possible. The combination of the NEPA analysis with revisions (if any) and the response to
comments are the complete and final record on which we base the finding of no significant
impact (FONSI), decision to prepare an EIS, or record of decision (ROD). If the HCP is loweffect and categorically excluded, we must provide a response to comments, attach comments
and our response to the findings, and place a copy in the file. It should also be placed on our Web
site along with the rest of the HCP package.
The NEPA decision document itself is not an appropriate document to use to respond to public
comments. Instead, those responses are attached to the NEPA decision document to complete the
record, or we summarize and address them in an appendix to a final EA or EIS. We must
maintain a full administrative record of all comments and responses in the administrative file.
We must make all NEPA comments and responses on an EA or EIS available to the public when
the FONSI or ROD and permit decision is announced to the public.
To streamline the process, when we notify the public of the availability of the draft HCP and
draft NEPA analysis, we may also make available the draft NEPA decision document
(environmental action statement (EAS), FONSI, or combined findings/NEPA decision). If we do
this, we include information in the NOA about when the final documents will be available and
how to request them. For instance, the NOA may state that during the public comment period
readers may request copies of drafts for review (EA, HCP, and FONSI), and then 30 days after
the public comment period closes, readers may request copies of the final documents. That gives
the Services’ staff time to complete the documents before the public requests copies of final
versions. We should make final, signed documents available on the Services’ Web sites to satisfy
the requirement to make documents available to the public. This also allows for a batched notice
that announces the decision and availability of final documents on an annual, or more frequent,
basis that will come out of the Headquarters office.
We can also use this streamlining method for a final EIS, ROD, and HCP, but remember that the
U.S. Environmental Protection Agency (EPA) still needs to publish a notice of the final
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documents and permit decision at least 30 days before the ROD and permit can become effective
(see 550 FW 3).
15.1.3 No Comments Received
If there were no comments, document that fact in the NEPA decision document and in the set of
findings and recommendations memorandum (FWS) or decision memorandum (NMFS).
15.1.4 Controversy
The definition of significantly (40 CFR 1508.27(b)(4)) includes controversy as an intensity
factor when determining the degree of the effects on the quality of the human environment. This
may enter into the decision between an EA or EIS (Chapter 13.5). The appropriate standard is
not whether the project is controversial, but whether the effects on the quality of the human
environment are likely to be highly controversial.
Generally, there are two types of controversy that may arise during the public comment period,
public objection and disagreement within the scientific community (NEPA for National Wildlife
Refuges: A Handbook, pg. 28) (see the HCP Handbook Toolbox)
15.1.4.1 Public Objection
Just because members of the public oppose the project does not mean the environmental impacts
of the project are controversial. To be considered such under NEPA, opposition must focus on
the anticipated environmental effects. If the controversy is subjective, depending on factors such
as a dislike of a project, comments do not require substantive response. On the other hand, the
Services must evaluate comments on objective factors, such as the size, nature, or effects of the
project on the human environment and either address the issues or provide reasonable written
explanations for dismissing them.
15.1.4.2 Scientific Controversy
Scientific controversy may or may not be considered significant. Typical disagreements in the
scientific community may arise over:
●
●
●
●
●

proper scientific methodologies,
the reliability of data generated,
the interpretation of data,
environmental impacts within or outside of an affected ecosystem,
the advisability of pursuing a particular course of action in light of other possible
alternatives, and
● the ability to calculate or reasonably estimate impacts in the face of uncertainties (e.g.,
some end-of-the-century or late century projections related to climate change and its
direct or indirect effects may be in this category, although they may not be relevant
depending on the timeframe of the HCP).

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The courts have typically deferred to the Services as the subject matter experts, as long as we
have given a reasonable explanation for our decisions (be sure to connect the dots). If legitimate
scientific controversy raises credible points of disagreement over method or analysis, we must
address those opposing views and provide support for our conclusions in the administrative
record.
15.2 Finalizing the HCP and NEPA Analysis
15.2.1 FWS Final Review
To finalize the HCP and NEPA analysis, both documents need field office review and Regional
office review and approval unless signature authority has been delegated to the field office. They
may also need legal review (however, if draft documents were reviewed prior to the public
comment period and there were no substantive changes made, it may not need further legal
review). An overall review of the HCP for consistency with the NEPA analysis and other
supporting documents, paying special attention to any sections where comments were addressed,
should be adequate.
Unless comments raised questions about the adequacy of the NEPA analysis (leading to the
conclusion that a categorical exclusion should have been an EA, or an EA should have been an
EIS), a general review at this point should be adequate. Again, pay special attention to any
sections where comments were addressed.
15.2.2 NMFS Final Review
For NMFS, the staff point of contact gets approval of the final NEPA analysis from the NMFS
NEPA office, and in some cases may need legal review from the NOAA Office of General
Counsel. If the HCP met issuance criteria and all other requirements before the public comment
period, an overall review of the HCP for consistency with the NEPA analysis and other
supporting documents, paying special attention to any sections where comments were addressed,
should be adequate.
The staff point of contact routes the entire package with the NEPA analysis, permit application,
conservation plan, and implementing agreement, if applicable, through the relevant Division,
general counsel, Regional Administrator or Director, Office of Protected Resources, and NMFS
Deputy Assistant Administrator for Regulatory Programs or NMFS Assistant Administrator.
When the entire package is signed, the staff point of contact publishes a Notice of Issuance in the
Federal Register.
15.3 Completing the Section 7 Biological and Conference Opinion
By this point in the process, the biological opinion (BO) for listed species or conference opinion
for non-listed species (included with the BO if applicable) should be close to completion.
Although the analysis should have been in development concurrent with the HCP process, the
BO should not be completed and signed until the public comment period has closed so that we
can ensure that all relevant issues have been considered. The BO must be signed prior to sending
it to the Regional office and before issuing the incidental take permit. However, before having
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the BO signed, ask the Regional HCP Coordinator whether an early review of the BO would
save time and effort later.
The key to compliance with section 7(a)(2) for any proposed Federal action is ensuring that it is
not likely to jeopardize the continued existence of the listed species or destroy or adversely
modify designated critical habitat. Actions should be compatible with the survival and recovery
needs of the affected listed species and the recovery function of any affected designated critical
habitat. Characterizing those needs and the role of the area affected by the HCP in terms of
conserving the affected listed species and any affected designated critical habitat is essential to
making sure we have the best information for the assessment of anticipated impacts and the
proposed mitigation.
Helpful Hint: An early review of the BO and conference opinion at the Regional office may ensure that
there are no last minute surprises that could cause delays. As is the case with any BO, early
coordination is the key to success.

15.3.1 Relationship between the Incidental Take Permit and the Incidental Take
Statement
The fact that the Services issue an incidental take permit to authorize incidental take of listed
species under section 10(a)(1)(B) of the Endangered Species Act (ESA) (see the HCP Handbook
Toolbox) and prepare an incidental take statement following ESA section 7 consultation can be a
source of confusion. The ESA gives the Services the authority to issue permits for incidental take
of listed species. The incidental take permit serves to authorize such take for applicants.
As stated in section 14.12.1, under section 7 the Services do a jeopardy/adverse modification
analysis. Therefore, although we do an intra-Service consultation, the BO incidental take
statement does not exempt take for the applicant because the take is authorized through the
incidental take permit.
Helpful Hint: The Services’ intra-Service section 7 consultation prepared in conjunction with incidental
take permit issuance will not include an incidental take exemption for non-HCP covered species.

Again, the Services require applicants to include as HCP covered species all ESA-listed wildlife
species for which incidental take is reasonably certain to occur, unless take is addressed through
a separate ESA mechanism (e.g., section 7 consultation with another Federal agency, separate
incidental take permit, etc.) (see Chapter 7.0 and the HCP Handbook Toolbox). Therefore, the
HCP must include and adequately consider those species for the Services to cover them under
the incidental take permit. Alternatively, the HCP may be revised to include measures to avoid
any take of non-covered listed species.
15.3.2 Conferencing on Potential ESA-Listed Species (Proposed, Candidate, or Unlisted
Species)
HCPs may include conservation measures for non-listed species. Typically, the HCP applicant,
with technical assistance from the Services, considers non-listed species that might become listed
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during the term of the proposed incidental take permit so they can be covered under the HCP. A
non-listed species covered in the HCP must be treated as if it were already listed and all
conservation measures described in the HCP for that species must be fully implemented. If it is
adequately addressed in the HCP, and we determine that section 10 issuance criteria have been
met for the species, it is included on the incidental take permit and becomes effective if and
when the species is listed. We must complete a conference opinion according to the provisions of
50 CFR 402.10(c)-(e) (see the HCP Handbook Toolbox, to affirm that the proposed incidental
take permit action is not likely to jeopardize the continued existence and recovery of the nonlisted species and incorporate the conference opinion into the BO in the decision record for the
incidental take permit action.
15.3.3 Including Plants
HCPs often cover listed and unlisted plants and impacts to such species should be addressed in
the BO even though impacts to plants do not fall under the definition of “take” and, therefore,
impacts to or loss of plants is authorized under section 10 incidental take permits. Plants
adequately covered by an HCP receive No Surprises assurances (see Chapter 7.4.6).
15.4 Completion of National Historic Preservation Act (NHPA) Section 106 Requirements
We noted the early consideration of historic properties above in Chapter 3.7.4. Coordination
procedures for section 106 are detailed in Appendix A. By this time in our HCP review, we
should have concluded consultation with the affected State (SHPO) and Tribal (THPO) historic
preservation officers, the Advisory Council on Historic Preservation (ACHP), and others as
required (Appendix A.B.4). Ideally, we will have concurrence by the SHPO, THPO, ACHP, any
Indian tribe or Native Hawaiian organization, or other concerned entities in our determination of
cultural resource effects and any proposed resolution. These responses become part of the
administrative record of our HCP review. Our section 106 consultation can be presented in the
NEPA analyses and findings.
If resolution of historic properties effects requires a memorandum of agreement (Appendix A),
this should be finalized for signature. If we cannot reach agreement with a SHPO or THPO, we
may proceed as also described in the appendix.
15.5 NEPA Decision Documents
This section addresses the preparation of the EAS, FONSI, and ROD; and implementation of the
Services’ decision. The NEPA decision documents should summarize the reasons for selecting a
particular alternative. Services’ personnel involved in making and implementing decisions on an
action should establish an appropriate administrative file that includes a record of the Service’s
decision and rationale. The following establishes procedures to ensure that decisions and their
implementation are made in accordance with the Council on Environmental Quality (CEQ)
Regulations for Implementing the Procedural Requirements of NEPA (40 CFR 1505),
Department of the Interior's NEPA Implementing Procedures (43 CFR 46; 516 DM 1-3), and
DOC/NOAA/NMFS NEPA procedures (Department of Commerce Administrative Order 216-6,
May 20, 1999) (see these regulations in the HCP Handbook Toolbox.

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The NEPA decision documents contain not only the Services’ decision, but also the rationale for
it (i.e., they show your work). They may be stand-alone documents or they may be added to the
findings and recommendations memorandum to streamline the process by reducing duplication
and paperwork (40 CFR 1506.4). Check with the Regional HCP Coordinator for Regional
guidance.
15.5.1 Environmental Action Statement
For NEPA analyses performed by FWS, an EAS briefly documents the use of a categorical
exclusion or whatever other NEPA decision was reached (e.g., decision to prepare an EIS
because of significant impacts brought to light during a public comment period for an EA). It
also provides an appropriate administrative record of NEPA-related decisions at all management
levels of the FWS (see 550 FW 3.3C).
15.5.1.1 When to Prepare an Environmental Action Statement
The Services’ office responsible for preparing the NEPA analysis should prepare an EAS (see
550 FW 3.3.C):
●
●
●
●
●

to facilitate internal inter-program review and final approval for a FONSI that will be
signed at the Regional office level;
to document an action that is normally categorically excluded, but that may be
controversial;
when, after the review of an EA, a decision is made to publish a notice of intent to
prepare an EIS in the Federal Register;
when a proposed action is not approved because of unacceptable environmental damage
or violation of the Services’ mandates, policy, regulations, or procedures; and
whenever additional internal review or documentation of the NEPA administrative record
is desirable.
15.5.1.2 Content of the Environmental Action Statement

The EAS should be a 1-page document that includes the proposal, the Services’ decision,
references to supporting documents (if any), and a signature block (see 550 FW 3.3.C(3)). If
doing a stand-alone EAS, it should be formatted in accordance with the example in the HCP
Handbook Toolbox - Example Environmental Action Statement. However, to cut down on
paperwork and streamline the process, you may add the EAS to the findings and
recommendations or decision memo.
Helpful Hint: Relatively simple HCPs can be designated as low-effect. For instance, a small scale HCP
where the applicant intends to remove marginal habitat for a species includes plans to mitigate by
buying credits from a conservation bank that preserves high quality habitat. As noted in Chapter
13.5.1, we may consider minimization and mitigation measures in determining a CatEx.

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15.5.1.3 Processing the Environmental Action Statement
The EAS must accompany the decision documents for the action through the surname and
signature process. It must be signed no sooner than when the decision is made on a CatEx, or
when the FONSI or ROD is signed.
15.5.2 Making the Decision on an Environmental Assessment
An EA serves as the basis for determining whether implementation of the proposed action would
constitute a major Federal action significantly affecting the quality of the human environment. A
positive finding requires us to develop an EIS. There are no hard-and-fast rules available to
conclusively label an action as significant, or not, because determining if a Federal action will
have significant effects is based on the facts for a particular case. The need to prepare an EIS is a
matter of professional judgment requiring consideration of all of the issues in question,
particularly all information documented in the EA.
For a negative finding (no significant impacts, so no need for an EIS), we prepare and sign a
FONSI. The text of the EA should provide sufficient factual material to support the finding.
15.5.2.1 Finding of No Significant Impact
A FONSI is based on the combination of the EA and responses to public comments, which
comprises the complete and final record. The Services must notify the public that the EA process
has been completed and a FONSI has been issued. You can accomplish the notification
requirement through mailings, publication in a visible location in the local paper of record, a
Federal Register notice, a news release, or a meeting with concerned tribes, agencies, and
individuals.
It is not necessary to notify the public that the completed EA and FONSI are available before we
issue the permit, unless the following circumstances apply. In accordance with Council on
Environmental Quality (CEQ) NEPA regulations 1501.4(e)(2)) and 550 FW 3, in certain limited
cases we must make the draft FONSI available to the public for at least 30 days before we decide
whether to implement the FONSI or prepare an EIS. Following are the situations where we have
to give the public 30 days:
● It is a borderline case (i.e., there is reasonable argument for preparation of an EIS).
● It is an unusual case, a new kind of action, or a precedent-setting case (i.e., it is without
precedence).
● There is either scientific or significant public controversy over the proposal (see 516 DM
2, for FWS and NOAA’s Environmental Review Procedures and NOAA Administrative
Order Series 216–6 for NMFS).
● The FONSI involves a proposal which is similar, or is closely similar, to one which
normally requires an EIS or has required an EIS in the past.
In these limited circumstances, we should publish an NOA of the draft FONSI in the Federal
Register, and we should also publish it in the local newspaper of record. Alternatively, the
issuing office may decide to make a draft FONSI available with the draft EA for the 30-day
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public review and comment period. This may streamline the public review and comment period,
but keep in mind that we still can’t make the decision about issuing the permit until the public
comment period closes and the FONSI is signed.
Helpful Hint: There is no time limit for publishing an NOA of the signed FONSI (unless as described in
the four circumstances above). As long as the draft FONSI is made available with the draft HCP and
draft EA, the final notice may be published annually, or on a more frequent schedule, with the notice
of permit issuance.

15.5.2.2 Content of the Finding of No Significant Impact
The content of the FONSI is discussed in 40 CFR 1508.13. See an example of a FONSI in the
HCP Handbook Toolbox.
A FONSI serves two functions. It documents the Agency’s finding that no significant impacts
would occur if the proposed HCP is implemented, and it explains the rationale used in selecting
the alternative for implementation.
The FONSI states which alternative has been selected, very briefly describes other alternatives
considered in the EA, and discusses how criteria were used and how they were weighed in the
selection process. The FONSI should be based on the EA, comments from agencies and the
public, the BO, and the findings and recommendations memorandum. However, the FONSI is
separate from the EA, and it is detailed enough to stand alone. The FONSI is signed by the
Deputy Regional Director (FWS), Assistant Regional Administrator (NMFS), their acting, or the
delegated entity (e.g., Field Supervisor).
In most cases, 5 pages are adequate to provide the specific rationale required in a FONSI.
However, if we have prepared a “mitigated EA” and the impact has been reduced to below a
“significance threshold” through the use of mitigation, 5 pages may not be adequate.
Sometimes the environmentally preferable alternative is not the preferred alternative proposed in
the HCP. However, if the preferred alternative in the HCP meets all other requirements and
issuance criteria, the Services must issue the permit on the proposed alternative (50 CFR
17.32(b)(2)).
15.5.3 Making the Decision on an Environmental Impact Statement
Following completion of a final EIS, the Services must prepare the ROD. The ultimate choice of
an alternative, mitigation measures, and the decision rationale are documented in the ROD. If the
EIS is a joint agency document, each of the Services prepares its own separate ROD. The ROD
is a concise public record of the decision, which may be integrated into any other record
prepared by the FWS or NMFS. Procedural and substantive guidance for RODs is included in
CEQ regulations (40 CFR 1505.2) and FWS policy (550 FW 3.3A.).

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15.5.3.1 Record of Decision Checklist
The ROD is the NEPA decision document for an EIS level review. To help ensure that the ROD
is complete, we developed a checklist (see the checklist in the HCP Handbook Toolbox). It
provides more detail than CEQ regulations and we recommend you use it.
15.5.3.2 Content of the Record of Decision
CEQ regulations (40 CFR 1505.2) require that RODs:
●
●
●
●

state the Service’s decision;
provide a summary description of all alternatives analyzed in the EIS;
identify the environmentally preferable alternative;
provide the decision rationale—what the criteria were (e.g., cost, degree of environmental
impacts, technical considerations, degree to which objectives were met, logistics) for
selecting an alternative, how each alternative measured up against these criteria, how the
criteria were weighted, and so forth;
● provide a clear statement of which mitigation measures will be implemented if they are
not obviously integral to the alternative selected, and a summary of any monitoring or
other enforcement programs or plans. The description of mitigation and monitoring
should be specific enough to enable the public to determine whether measures have been
effectively implemented, but not be so specific as to duplicate the EIS; and
● provide a statement about whether all practical means to avoid or minimize
environmental harm from the selected alternative have been adopted, and if not, why not.
An average ROD should be no more than 10 pages. It should give enough information on the
alternatives and their impacts, the rationale in selecting the chosen alternative, and the extent of
mitigation and monitoring the public can expect so that the reader can understand these major
issues without referring to the EIS. Any conditions adopted for monitoring or enforcement must
be addressed in the ROD (40 CFR 1505.3). See an example ROD and NOA for a ROD that is
published in the Federal Register in the HCP Handbook Toolbox.
Helpful Hint: Public comments and the Services’ responses may be attached to the ROD, or they may
be included as an appendix to the final EIS.

15.5.4 Joint Federal-State Processes
Some States have laws that parallel or expand NEPA requirements at the State or local level
(e.g., the California Environmental Quality Act). CEQ regulations (40 CFR 1506.2), Department
of the Interior procedures (516 DM 4.18), and NOAA policy require us to cooperate, to the
fullest extent possible, with the applicant and State and local officials to reduce duplication
among NEPA, State and local environmental requirements, and ESA requirements. We should
cooperate with State and local agencies to avoid duplication and reduce the time and costs of
planning by:
● conducting joint planning,
● conducting joint environmental research and studies,
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● conducting joint public hearings, and
● producing joint environmental documents (however, the Services are responsible for
submitting Federal Register notices).
Helpful Hint: Follow the guidance above when State or local laws require a similar analysis for
authorization by a State or local jurisdiction. This does not require you to include State or local
jurisdictions in the NEPA process as cooperating agencies, nor does it prohibit us from doing so. The
involvement of a State or local entity would typically be that of an interested party.

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Chapter 16: Making a Permit Decision
16.1

Documenting Our Findings - Section 10 Findings and Recommendations
Memorandum
16.1.1 Introduction and Project Description
16.1.2 Section 10(a)(2)(A) HCP Criteria – Analysis and Finding
16.1.3 Permit Issuance Criteria – Analysis and Finding
16.1.3.1 The taking will be incidental – section 10(a)(2)(B)(i)
16.1.3.2 The applicant will, to the maximum extent practicable, minimize and
mitigate the impacts of such taking – section 10(a)(2)(B)(ii)
16.1.3.3 The applicant will ensure that adequate funding for the conservation plan
and procedures to deal with unforeseen circumstances will be provided.
16.1.3.4 The taking will not appreciably reduce the likelihood of the survival and
recovery of the species in the wild.
16.1.3.5 The measures, if any, required under paragraph (A)(iv) of this section
will be met (FWS); and The applicant has amended the conservation plan
to include any measures (not originally proposed by the applicant) that
the Assistant Administrator determines are necessary or appropriate
(NMFS)
16.1.3.6 He or she has received such other assurances as he or she may require
that the plan will be implemented (FWS); and There are adequate
assurances that the conservation plan will be funded and implemented,
including any measures required by the Assistant Administrator (NMFS)
16.1.4 Disqualifying Factors
16.2 Writing the Permit
16.2.1 Permit Terms and Conditions
16.2.2 Reporting Requirements
16.3 Federal Register Notice of Availability - Final HCP, Final NEPA Analysis, and Draft
or Final Decision Documents
16.4 Preparing and Processing the Signature Package
16.4.1 Contents of the Signature Package
16.4.2 Who Signs the Documents and Why
16.4.2.1 FWS
16.4.2.2 NMFS
16.4.3 Timing – When Documents are Signed
16.4.3.1 Environmental Action Statement and Permit
16.4.3.2 Finding of No Significant Impact and Permit
16.4.3.3 Record of Decision and Permit
16.5 Implementing the HCP and Executing the NEPA Decision
16.6 Permit Issuance and Distribution of Copies of the Permit
16.7 Permit Denial, Review, and Appeal Procedures (Who Signs the Permit and Why)
16.7.1 Permit Denial
16.7.2 Request for Reconsideration of a Permit Denial
16.7.3 Copies of Denials
16.8 SPITS, APPS, and ECOS
______________________________________________________________________________
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16.1 Documenting our Findings - Section 10 Findings and Recommendations
Memorandum
The findings and recommendations memorandum (also known as the “set of findings” or
“findings”) documents the Services’ conclusions on permit issuance in response to an application
and Habitat Conservation Plan (HCP). Although it is not a statutory requirement, it is a key
component of the administrative record demonstrating that the HCP satisfies statutory and
regulatory requirements, including section 10(a)(2)(B) issuance criteria and responses to public
comments received (if any). It should also include a recommendation from the appropriate
official on whether to issue or deny the permit.
Do not confuse the set of findings with a National Environmental Policy Act (NEPA) finding of
no significant impact (FONSI) or record of decision (ROD). They address different decisions.
However, they also contain much of the same background information. To streamline the HCP
process by reducing duplication and paperwork, you can add the NEPA decision document to the
set of findings (40 CFR 1506.4) (see Combined Findings and Recommendations and NEPA
Decision Document in the HCP Handbook Toolbox.
16.1.1 Introduction and Project Description
The introduction to the set of findings provides litigation references to the authority under which
we may issue an incidental take permit. It provides a very brief description of covered activities,
the location of covered activities, covered species, and anticipated take. It also incorporates the
HCP by reference.
This is an appropriate place to provide any other relevant project history that affected our review
of the HCP.
If there is a lot of controversy and a high likelihood of litigation challenges, this section may be
written as a guide to the administrative record to explain the purpose and function of all the other
documents. Since this is not common practice, seek advice from the Regional HCP Coordinator
before writing the set of findings this way.
16.1.2 Section 10(a)(2)(A) HCP Criteria – Analysis and Findings
Although the HCP was certified as complete prior to public notice, it is helpful to formally
document that the HCP addresses each of the required elements of section 10(a)(2)(A):
i. The impact to result from such taking: As noted in Chapter 14, the impact of the taking is
not merely a quantification of take. This section of the findings should summarize the
amount of take anticipated for each species covered in the HCP and then describe the
expected impacts from such taking (i.e., the results). If the HCP uses impacts to habitat as a
surrogate for take, use that common currency for this description.
ii. The steps taken to minimize and mitigate such impacts, and the funding that will be
available to implement them: Summarize the proposed measures to minimize and mitigate
for unavoidable take resulting from the impacts of implementing the HCP. Briefly discuss the
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sources of funding for the minimization, mitigation, and implementation of the HCP,
including adaptive management and changed circumstances.
iii. Alternative actions to the taking considered by the applicant and reasons why such
alternatives are not being used: Briefly summarize any alternatives the applicant considered
and that are described in the HCP, with reasons those alternatives were rejected by the
applicant. The alternatives to the taking (e.g., not doing the project doesn’t meet the
applicant’s needs and doesn’t provide benefits to the species) are not the same as the NEPA
alternatives. These alternatives are described, not analyzed.
iv. Other measures the Secretary may require as being necessary or appropriate for purposes
of the plan: Describe any additional measures we determined are necessary (e.g., requiring
that the HCP be fully implemented).
Alternatively, you may insert a paragraph at the end of the project description stating that the
applicant submitted an HCP that meets the requirements of section 10(a)(2)(A).
16.1.3 Permit Issuance Criteria – Analysis and Findings
Section 10(a)(2)(B) (see issuance criteria in the HCP Handbook Toolbox of the Endangered
Species Act (ESA) requires the following criteria to be met before the Services may issue an
incidental take permit. If these criteria are met, and there are no disqualifying factors, we must
issue the incidental take permit (ESA section 10(a)(2)(B)(v)). The results of our analysis must be
thoroughly presented in the findings and recommendations document.
16.1.3.1 The taking will be incidental – ESA section 10(a)(2)(B)(i); 50 CFR
17.22(b)(2)(i)(A)/17.32(b)(2)(i)(A); 50 CFR 222.307(c)(2)(i)
Per 50 CFR 17.3, incidental taking means any taking otherwise prohibited, if such taking is
incidental to, and not the purpose of, carrying out an otherwise lawful activity. For example, take
of a covered species resulting from use of heavy equipment during home construction that is in
compliance with all other applicable Federal, State, or local laws generally would be considered
incidental to an otherwise lawful activity and could be authorized by an incidental take permit.
Although compliance with those other laws is the applicant’s responsibility, we must be able to
reasonably assume that their activities are otherwise lawful. Conversely, deliberately shooting or
wounding a listed species because it is disrupting a landowner’s business is not incidental take
and does not qualify for an incidental take permit because: (1) it is deliberate, not incidental; and
(2) it is not an otherwise lawful activity.
Briefly describe the proposed activity(ies) and document that the covered activities are lawful
and proposed take is incidental to those activities.
16.1.3.2 The applicant will, to the maximum extent practicable, minimize and
mitigate the impacts of such taking – ESA section 10(a)(2)(B)(ii); 50 CFR
17.22(b)(2)(i)(B)/17.32(b)(2)(i)(B); 50 CFR 222.307(c)(2)(ii)

16-3

While the applicant is responsible for determining what type and amount of minimization and
mitigation to include in their HCP, we are responsible for determining whether or not the
proposed minimization and mitigation satisfies this statutory issuance criterion.
The Services cannot issue permits based on alternative versions of the HCP that the applicant did
not propose. For example, some have argued that if a project proponent who plans to develop a
100-home subdivision could practicably reduce the subdivision to 10 homes based on financial
viability, the Services could only issue an incidental take permit for the 10-home subdivision
according to the practicability standard. This argument ignores that the level of mitigation
required is, in the first instance, directly dependent on the take anticipated to result from the
proposed covered activities. Where we conclude that the plan does not fully offset the impacts of
the taking, we would certainly attempt to get the project proponent to avoid or minimize take
where possible, reduce the number of homes, and reconfigure the design to further reduce
impacts. However, even if the developer agrees to reduce the number of homes and reconfigure
several of the lots to further reduce impacts, the ESA still requires an evaluation of any
remaining biological impacts. We should identify what minimization and mitigation is required
to fully offset the biological impacts of the taking, and then evaluate whether the conservation
measures the applicant has proposed are either fully commensurate with the level of impacts, or
if not, whether they minimize and mitigate those impacts to the maximum extent practicable.
Note that differing interpretations of the minimization and mitigation to the maximum extent
practicable standard often result in confusion and can become a source of delay during the
development of the conservation program in an HCP. Some have interpreted the statute to mean
that the applicant must minimize the impacts of take to the maximum extent practicable first and
then second mitigate the remaining impacts to the maximum extent practicable. The 2016 Union
Neighbor’s decision [Union Neighbors United, Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 2016)]
held that the “sequential” interpretation is not required by the statute and affirmed the Services’
interpretation that the phrase “minimize and mitigate” should be considered jointly, rather than
as independent findings. This decision supports the Services’ interpretation as originally
provided for in the 1996 HCP handbook. Regardless of the approach, our responsibility is to
ensure that the types and amounts of minimization and mitigation in an HCP produce a
reasonable biological outcome for the covered species. See Chapter 9.5 for a full discussion on
maximum extent practicable.
16.1.3.3 The applicant will ensure that adequate funding for the conservation plan
and procedures to deal with unforeseen circumstances will be provided - ESA
section 10(a)(2)(B)(iii); 50 CFR 17.22(b)(2)(i)(C)/17.32(b)(2)(i)(C); 50 CFR
222.307(c)(2)(v).
To demonstrate adequate funding the applicant should identify the costs necessary to implement
all components of the conservation program, including minimization and mitigation measures,
adaptive management and monitoring plans, maintenance of conservation easement lands, and
measures to address changed circumstances. They must also identify the funding mechanisms
that they will use to ensure payment of those costs. The applicant must identify the specific
financial/legal documents (e.g., letters of credit, corporate guarantees, performance bonds, nonwasting endowments, endowment for management, etc.) that they will use to ensure that funding
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will be available in appropriate amounts at appropriate times throughout the life of the permit
and into perpetuity. See Chapter 11 for more specific information regarding funding.
The applicant must provide sufficient documentation so we can reasonably conclude that the
conservation plan will be fully implemented. We should also make it clear to the applicant that
once the permit is issued, it is the permittee’s responsibility to implement the plan, including
providing the funds necessary for implementation. The HCP and permit (and implementing
agreement, if there is one) should contain a clear commitment on the part of the applicant to fund
the plan even if the estimates included in the applicant’s budget prove to be inaccurate. An
underestimate of funds needed is not a valid reason to not fully implement the HCP and permit.
For instance, instead of the HCP and permit stating that “the applicant agrees to provide $100K
to protect 10 acres of habitat for covered species" it should state that "the applicant agrees to
provide 10 acres of habitat...”.
No Surprises assurances only apply to an HCP that is being properly implemented. If the HCP is
not being properly implemented due to funding lapses, the No Surprises assurances no longer
apply.
Helpful Hint: Check the changed circumstances for reduced funding availability. If it is part of the
changed circumstances, it must either be removed or clearly stated that No Surprises will not be in
effect if full funding is not provided. We can also state that the permit coverage may lapse during any
period that full funding is not provided.

16.1.3.4 The taking will not appreciably reduce the likelihood of the survival and
recovery of the species in the wild - ESA section 10(a)(2)(B)(iv); 50 CFR
17.22(b)(2)(i)(D) /17.32(b)(2)(i)(D); 50 CFR 222.307(c)(2)(iii); 50 CFR
222.307(c)(2)(iii)
Include the following template language in every set of findings:
“This criterion incorporates the ESA Section 7 jeopardy standard, which is defined at 50
CFR 402.02: “Jeopardize the continued existence of means to engage in an action that
reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood
of both the survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species.” In accordance with section 7 of
the ESA, the Service(s) prepared an intra-agency biological opinion to evaluate whether
the taking associated with the HCP would jeopardize the continued existence of any
covered species. In the biological opinion, which we have attached and incorporated into
this document by reference, the Service(s) concluded that the proposed incidental take of
the (name covered species) is not likely to jeopardize the continued existence of
this/these species.”
Helpful Hint: While the criterion states “the species” in reference to the covered species, it applies to
all listed species in the plan area. If implementing the HCP would jeopardize any listed species
(including plants) or adversely modify critical habitat, we cannot issue the permit .

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16.1.3.5 (FWS) The measures, if any, required under subparagraph (B)(1)(iii)(D)
will be met (50 CFR 17.22(b)(2)(i)(E)/17.32(b)(2)(i)(E)) and (NMFS) the
applicant has amended the conservation plan to include any measures (not
originally proposed by the applicant) that the Assistant Administrator determines
are necessary or appropriate (50 CFR 222.307(c)(2)(iv))
This section refers to the requirement that the HCP application include “other measures such that
the Director may require as being necessary or appropriate for purposes of the plan.”
Other measures may still be deemed “necessary or appropriate” in addition to the issuance
criteria above so that the applicant can assure full implementation of the HCP's conservation
plan, monitoring, etc., or to meet the Services’ other legal obligations. These obligations include
such things as avoiding jeopardy of listed plant species, destruction or adverse modification of
designated critical habitat, jeopardy or take of listed wildlife species not covered by the HCP or
incidental take permit, and avoiding take of migratory birds or eagles, or Marine Mammal
Protection Act (MMPA) concerns. Discuss these issues with the Regional HCP Coordinator.
16.1.3.6 (FWS) He or she has received such other assurances as he or she may
require that the plan will be implemented (50 CFR 17.22(b)(2)(i)(E)
/17.32(b)(2)(i)(E)) and (NMFS) There are adequate assurances that the
conservation plan will be funded and implemented, including any measures
required by the Assistant Administrator (50 CFR 222.307(c)(2)(v))
Other assurances would be project-specific. Discuss any specific needs with the Regional HCP
Coordinator. We recommend working with applicants to determine if other measures would be
appropriate to complement the HCP strategy, such as developing and implementing a bird and
bat conservation strategy where there is a high likelihood of significant impacts to non-listed
migratory birds or bats, either in the HCP or as a stand alone agreement; providing conservation
measures for an unlisted species not covered in the HCP; or contributing funds for research
above and beyond that needed for the HCP’s adaptive management program.
16.1.4 Disqualifying Factors
If the HCP meets issuance criteria and all other requirements, and the Services have no evidence
that the HCP should be denied on the basis of the criteria and conditions in 50 CFR 13.21(b)-(c)
(disqualifying factors), we must issue the incidental take permit. However, in some instances you
may have indications (or even knowledge) of an applicant’s civil penalty or criminal conviction
of any statute or regulation relating to the activity for which the application is filed, that could be
considered evidence of a lack of responsibility. If the applicant didn’t provide all required
information or is found to have lied about information in the permit application, failed to
demonstrate a valid reason for having a permit, or is not qualified to have a permit, we would
deny the application. Regulations allow us to use such knowledge for further inquiry or
investigation. You may request that your servicing Office of Law Enforcement search their
database for records of applicable violations. A conviction, or entry of a plea of guilty or nolo
contendere, for a felony violation of the Lacey Act, the Migratory Bird Treaty Act, or the Bald
and Golden Eagle Protection Act disqualifies an applicant from receiving or exercising the

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privileges of a permit. Be sure to do due diligence (see the HCP Handbook Toolbox ). It is much
easier to deny a permit for cause than revoke an issued permit for the same reason.
If an applicant has violated statutes or regulations relating to the activity for which the
application is filed that do not rise to the level of a felony, and those violations are remedied
(e.g., violation for killing birds in an oil pit, but the oil pit was covered and required restitution
was made), that may not be grounds for denying a permit. However, if the applicant has been
assessed a civil penalty or convicted of any criminal provision of any statute or regulation
relating to the activity for which the application is filed, it may show a lack of responsibility,
which is grounds for denying a permit (50 CFR 13.21(b)(1)). Another example might be that of
an applicant who has been convicted of savings and loan fraud, but has made restitution. The
felony (it’s not related to the permit application) wouldn’t provide cause for permit denial, but if
the applicant didn’t make restitution, that might show a lack of responsibility.
If there are no disqualifying factors you may use the following template language:
“The Service has no evidence the incidental take permit application should be denied on
the basis of criteria and conditions set forth in 50 CFR 15.21(b)-(c).”
Note that applications for renewed permits or amendments to active permits have a record of
compliance to consider when making the permit decision.
16.2 Writing the Permit
The permit is the controlling document in the HCP package. There are very specific
requirements for a valid permit:
The incidental take permit, together with its attached (or included) terms and conditions, must
clearly identify the scope and extent of the authorized taking. The face of the permit has specific
blocks for some of this information. Additional, clarifying information can be inserted into the
terms and conditions section of the permit. If you use attachments, they should be uploaded into
the Services Permit Issuance and Tracking System (SPITS) or Authorizations and Permits for
Protected Species (APPS) so all parts of the permit are together and readily available to the
Services and law enforcement.
Following are the main categories of information that are needed on the face of the permit:
Permittee. Name, address, and telephone number of the permittee goes on the face of the permit
in block 1. You may include an email address. Additional information may be included under the
conditions section such as the affiliation of the permittee and how they directly control activities
covered under the permit.
Permit Area. Describe the area(s) where take associated with covered activities is authorized in
block 10 of the permit. Additional location details or a map may be attached to the permit.
Dates. Include permit signature date, effective date, and expiration date, as well as report due
dates (e.g., annually on January 31).
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Permittee Signature Line. The following standard condition should be on the face of the permit
and requires the permittee to sign for the permit (signature must be in blue ink) with the
following understanding (see example in the HCP Handbook Toolbox):
“Acceptance of the permit serves as evidence that the permittee agrees to abide by all conditions
stated.”
The permittee must sign for the permit to acknowledge receipt and signify agreement to fully
abide by and implement the permit.
16.2.1 Permit Terms and Conditions
The Services have the authority and responsibility to impose terms and conditions in the permit
necessary to carry out the purposes of the HCP, including but not limited to, monitoring and
reporting requirements necessary for determining whether the permittee is complying with such
terms and conditions. The permit should describe all activities likely to result in take under the
HCP, including those necessary for the conservation program, and the amount of take authorized
for each covered species. The terms and conditions placed in the permit should be the same as, or
a summary of, those described in the final HCP, with the exception of standard conditions that go
into all permits. In some rare cases the Services may need to incorporate additional conditions,
but that should be avoided, if possible. If we intend to include terms and conditions not proposed
in the HCP, we should fully explain our intentions to the applicant—don’t surprise them. Many
times the applicant will add them to their HCP if approached and asked to do so.
SPITS will generate standard conditions applicable to all FWS permits. We must add all other
conditions needed to clarify the scope of the project, including, but not limited to, details
associated with the above categories. Alternatively, depending on Regional preference, permit
terms and conditions may require full compliance with the approved HCP, including changed
circumstances. Check with the Regional HCP Coordinator for your Region’s policy.
Generally, FWS uses the following additional standard terms and conditions:
● Upon locating a dead, injured, or sick [covered species] or any other endangered or
threatened species, the permittee must contact the Service’s [insert name of field office or
law enforcement office and phone number], for care and disposition instructions. Use
extreme care when handling sick or injured individuals to ensure effective and proper
treatment. Also take care in handling dead specimens to preserve biological materials in
the best possible state for an analysis of cause of death. Along with the care of sick or
injured endangered/threatened species, or preservation of biological materials from a
dead specimen, the permittee is responsible for ensuring that evidence intrinsic to the
specimen is not unnecessarily disturbed.
● Terms and conditions of the permit are inclusive; take resulting from any activity not
specifically covered is prohibited. Please read through these conditions carefully as
violations of permit terms and conditions could result in your permit being suspended or
revoked. Violations of your permit terms and conditions that contribute to a violation of
the Endangered Species Act (ESA) could also subject you to criminal or civil penalties.
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● The authorization granted by this permit is subject to full and complete compliance with,
and implementation of, the (name of HCP) HCP and all specific conditions in this permit.
The permit terms and conditions supersede and take precedence over any inconsistent
provisions in the HCP or other program documents.
FWS routinely issues consolidated ESA and Migratory Bird Treaty Act (MBTA) permits for
ESA-listed bird species. In those cases, FWS includes the following in the conditions of issued
incidental take permits:
“This permit also constitutes a Special Purpose Permit under 50 CFR 21.27 for the take
of [provide species' common and scientific names; species must be ESA-listed] in the
amount and/or number and subject to the terms and conditions specified herein. Any such
take will not be in violation of the Migratory Bird Treaty Act of 1918, as amended (16
U.S.C. 703-712).”
Helpful Hint: We may provide a template condition for eagle “incidental take” similar to the MBTA
one above, but we do not have a final rule to base such language on at this time. Although the current
50 CFR 22.11 language seems to eliminate the need at this point, we must remind Service HCP
practitioners and permit applicants that there are additional requirements for covering eagles under
an ESA permit.

Standard conditions in all NMFS permits include:
●
●
●
●
●

permit duration;
conditions to monitor, minimize, and mitigate impacts to listed species;
reporting requirements;
requirements for interactions with FWS species (usually manatees); and
general permit conditions under 50 CFR 222.301.

There may also be other Regionally required terms and conditions for each Service. Check with
the Regional HCP Coordinator for other standard terms and conditions.
For both Services, these are some things to remember when writing permit terms and conditions:
● use language a non-expert will understand.
● be very specific—the permit must be enforceable.
● don’t equivocate or use ambiguous words (e.g., may, if possible, at the permittee’s
discretion, to the maximum extent practicable).
● use descriptive headings to organize the permit (e.g., species 1, conservation measures,
minimization measures, mitigation strategy, etc.).
Terms and conditions specific to the HCP are written on the following topics (lengthy
descriptions may be incorporated by reference from the HCP into the permit):
● covered species—common name, scientific name, ESA status;
● amount of incidental take authorized for each covered species—describe the level of take
authorized in measurable and enforceable terms for each species covered by the permit;
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●

●
●
●
●

●
●
●
●
●

This can be done using numbers of individuals, stream miles, acres of habitat, or another
appropriate habitat unit. If you’re using a surrogate, it must be fully explained in the
HCP;
minimization and mitigation measures for each species covered in the permit;
○ type and amount of minimization measures for each species;
○ type and amount of mitigation for each species; and
○ negotiated conservation measures;
permit area – area under the permittee’s control where take may occur;
as needed for multiple-party, co-permittee arrangements, define areas of responsibility,
coordination measures, and address severability (if applicable);
minimization/mitigation measures for all take (including any indirect take outside the
permit area, e.g., downstream siltation);
covered activities – name the activities or project for which we’re authorizing take and
include conditions related to those activities. You may restate in detail or briefly
summarize conditions in the HCP. If the permit has more than one permittee and
activities are different for each permittee, spell them out per permittee;
changed circumstances and the permittees’ proposed responses;
monitoring requirements;
reporting requirements;
any conditions the Services require; and
if the permit has more than one permittee, describe terms and conditions for each
permittee (if they’re different).

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The following table provides an “at a glance” set of requirements for terms and conditions for a
10(a)(1)(B) permit.
Table 16.2a: Requirements for Terms & Conditions
Terms & Conditions
(T&Cs)

Components

Sub-components

Standard T&Cs

see above

may also include Regionallyspecific T&Cs

Species-specific

amount of take authorized for
each covered species

use common currency – # of
individuals, stream miles, acres of
habitat

conservation
measures/mitigation strategy

minimization measures for each
species
mitigation measures for each
species

Multi-party
requirements

Identify other permittees or copermittees and their geographic
and/or project-related areas of
responsibility

as appropriate, delineate spheres of
responsibility and coordination
among multiple parties/copermittees

Permit Area

description

where activities that may result in
take are conducted

Plan Area

offsite impacts (not a
conservation bank unless the
permittee is also the banker)

the permit area plus the location
of off-site conservation measures
(e.g., offsite mitigation lands not
owned by the permittee)

Covered Activities

per permittee, if different

n/a

Changed
Circumstances

permittee response to changed
circumstances

per permittee, if applicable

Monitoring
Requirements

for species, effectiveness, &
compliance

specific information needed

Reporting
Requirements

specific information needed

required format

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Helpful Hint: In some cases, activities in the HCP will require hands-on work with species (e.g., moving
fish from site to site, monitoring populations or individuals of covered species, building artificial nests
within occupied habitat). If the Services agree to such activities, they should be listed in the permit
along with any restrictions or stipulations. For some sensitive species, certain activities may require
specialized experience and handling by a permitted biologist (i.e., has an ESA section 10(a)(1)(A)
permit). The permit for the HCP should state specifically that those activities must be conducted by (or
under the direct, on-site supervision of) an experienced, permitted biologist (e.g., nest surveys,
translocations, moving species out of harm’s way to a safe location).

16.2.2 Reporting Requirements
The ESA emphasizes the necessity for “reporting requirements … for determining whether the
incidental take permit terms and conditions are being complied with” (section 10(a)(2)(B)(v)). In
addition, an applicant’s HCP must include steps to monitor and then report on the effects of take
(50 CFR 17.22(b)(1)(iii)(B), 17.32(b)(1)(iii)(B), and 222.307).
The permit must include the reporting requirements described in the HCP to ensure permittee
compliance. If the Services have other requirements, they also must be in the permit terms and
conditions. Permittees are usually required to submit annual reports with very specific
information in required formats (as described in in Chapter 10). However, for some small (e.g.,
single family residence) or low-effect HCPs, we may just require one report after project
completion.
Helpful Hint: To ensure that they accurately reflect the content of the HCP, we recommend that you
send the draft permit terms and conditions to the applicant for review.

16.3 Federal Register Notice of Availability–Final HCP, Final NEPA Analysis, and Draft or
Final Decision Documents
The process for developing the notice of availability (NOA), is described in Chapter 14.5 and
14.8 (FWS & NMFS) and the Federal Register Notices & (Entire) Process for Publishing an
NOA is in the HCP Handbook Toolbox Federal Register Notices and Process for Publishing a
Notice of Availability (NOA) and Notice of Intent (NOI) for FWS.
For final low-effect HCPs and categorical exclusion (CatEx) packages, we only have to notify
the public that we issued the permit. There is no timing requirement for the notice, so we
recommend that these notices be batched on an annual basis as a streamlining measure. The
Headquarters office will compile and publish the annual notice. The field or Regional office
should put final approved and signed HCPs and associated documents on their local Web sites to
satisfy the requirement to make documents available to the public.
For final HCPs with an environmental assessment (EA), we are required to notify the public that
we have approved the HCP, finalized the EA, and issued a FONSI and permit. There is no timing
requirement for this notice either, so we recommend that these notices be batched on an annual
basis with notices of permit issuance on HCPs that the Headquarters office will compile and
publish. However, to ensure we meet the requirements in 40 CFR 1506.6(b), we recommend that
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the NOA on the draft HCP and draft EA state that FONSIs will be available along with HCPs
and EAs on the Services’ Web sites as soon as they are finalized.
If the NOA is for a final HCP and final environmental impact statement (EIS), it should be
published when those documents are finalized and draft decision documents are completed. If the
NOA for the draft ROD and draft permit and terms and conditions are published with the final
HCP and final EIS, the notice can include a date (30 days after publication date) that the public
can request copies of the final ROD and permit (they will not be signed and effective until after
the 30-day waiting period). They should also be available on the Services’ Web site as soon as
they are signed. If done this way, the final notice of permit issuance may also be batched with the
other notices described above. Again, the Headquarters office will compile and publish the
annual notice.
16.4 Preparing and Processing the Signature Package
16.4.1 Contents of the Signature Package
The signature package consists of the following documents:
●
●
●
●

●
●
●

●

HCP;
NEPA analysis;
biological opinion;
FWS:
○ findings & recommendations memorandum, and
○ NEPA decision document (unless it was combined with the set of findings);
○ transmittal memo from the field office to the Regional Office (draft permit
terms and conditions) (see example in the HCP Handbook Toolbox)
NMFS – decision memo documenting statutory findings, considerations, and
determinations;
implementing agreement (if there is one);
NOA of the final HCP, final NEPA analysis, and draft decision documents:
○ We recommend batching notices of issuance of an environmental action
statement (EAS) and permit issuance annually. We must notify the public
of the issuance of a FONSI, but if the public were invited to request final,
signed copies in the NOA for the final HCP and final EA, this could also
be added to the annual notice that the Headquarters office will compile
and publish.
○ cover letter to the Office of the Federal Register
for an EIS you must also have cover letters (see Example Letters in the HCP HCP
Handbook Toolbox) to:
○ EPAs Regional office (see examples and addresses in the HCP Handbook
Toolbox),
○ FWS – DOI Library,
○ NMFS – NOAA Library,
○ National NEPA Coordinator (for FWS, or NMFS, or both),
○ note to reviewer, and
○ draft permit and draft terms and conditions
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You can find a table that outlines the contents of the signature package and identifies who signs
each document for FWS and NMFS in the HCP Handbook Toolbox.
Helpful Hint: For an EIS the ROD cannot be signed and the permit cannot become effective until 30
days after publication of a notice in the Federal Register. The NOA should state that the final, signed
ROD will be available for review on the Service’s Web site. The draft ROD may be placed on the Web
site, then should be replaced by the final, signed version.

16.4.2 Who Signs the Documents and Why
While the NOA for draft or final packages may be signed by the Regional Director, Regional
Administrator, and their acting officials, or anyone that has been delegated authority to do so, the
final supporting/decision documents should not be signed by the Regional Director or Regional
Administrator because of the appeal process (50 CFR 13.29) (also see Chapter 17.6).
Helpful Hint: Neither the Regional Director or Regional Administrator should sign the permit as
they may later be called upon to review and make the final decision on any appeal of a permit
decision. This allows the final decision to remain in the region.
16.4.2.1 FWS
Depending on whether the Regional Director has delegated signature authority, the appropriate
official to sign the decision documents (NEPA decision, set of findings, and permit) would be
the Deputy Regional Director or whomever else it was delegated to (see example signed
delegation in the HCP Handbook Toolbox).
If permittees disagree with the terms and conditions of the issued permit (e.g., because the
requested amount of take was not authorized, one or more of the requested activities was not
approved, etc.), they have the right to request reconsideration or to refuse the permit.
Reconsideration is finalized by the issuing officer (that signed the permit) (50 CFR 13.29(d)). If
that decision is appealed, the Regional Director would review and make the final decision.
16.4.2.2 NMFS
The appropriate official to sign the decision memo (NEPA decision, set of findings, and permit)
would be the Assistant Regional Administrator, or whomever it was delegated to within that
NMFS Region.
16.4.3 Timing – When Documents are Signed
If the NEPA conducted is a CatEx or EA, all of the documents in the signature package may be
signed at the same time, and they become effective upon signature. On an annual basis the
Headquarters office will compile and publish a batch Federal Register notice of issued permits
and NEPA decision documents that will satisfy the Services’ requirement to notify the public (40
CFR 1506.6(b)).

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If the NEPA conducted is an EIS, the final signature package includes:
● the Federal Register NOA (of the final HCP, final EIS, and draft decision documents);
● final HCP & final EIS; and
● draft ROD, draft permit with terms and conditions, and draft findings memo (if not
combined with the ROD).
All decision documents are reviewed at this point and the findings and recommendations memo
is signed (unless it has been combined with the ROD). The ROD and permit are not signed or
dated pending the close of the final 30-day public notice period (40 CFR 1506.10(2)) and
Services response to any comments made. The EPA’s notice is the official opening of the 30-day
notice.
The ROD becomes effective immediately upon signature. The permit becomes effective on the
effective date on the face of the permit (block 7) after signature. Final documents should be
made available to the public by request and on the issuing Services’ Web site, as soon as they are
signed and as stated in the Federal Register notice.
Helpful Hint: This is a change from previous procedures. However, as a streamlining measure it should
cut considerable time in the surname process (one round instead of two).

If the NEPA decision is of national interest, after all documents are signed, we must publish a
notice of our ROD in the Federal Register (40 CFR 1506.6(b)(2)). This may include multi-State
or multi-Regional HCPs.
16.4.3.1 Environmental Action Statement and Permit
There are no requirements to publish an NOA for a signed EAS (which is the decision document
for a CatEx), but it should be added to the annual NOA for signed permits that the Headquarters
office will compile and publish. Final documents should be put on the Services’ Web sites so
they are available to the public.
16.4.3.2 Finding of No Significant Impact and Permit
The draft FONSI may be made available to the public with the final EA. Since the signed FONSI
is an environmental document under 40 CFR 1506.6(b) and must be made available to the
affected public, the NOA can inform the public that they may request a copy of it on the closing
date. Signed FONSIs should also be placed on the Services’ Web sites as soon as possible after
signature.
You may use a combination of methods to provide notice, tailored to the needs of the particular
case, such as local mailings, publications in newspapers, radio announcements, and other means,
in addition to publication in the Federal Register.

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16.4.3.3 Record of Decision and Permit
The decision to implement the action in the final EIS cannot be made sooner than 30 days
following EPA’s publication of the NOA of the final EIS in the Federal Register. We should
make the draft ROD and draft permit with terms and conditions available when the NOA of the
final HCP and final EIS is published, with a 30-day notice period. The ROD and permit may be
signed immediately following the closing date. The NOA should advise the public that they may
request a copy of the final signed copies on the closing date and that we will put final documents
on our Web site to satisfy the requirement under 40 CFR 1506.6(b). Alternatively, the signed
ROD and signed permit may be made available by other means (e.g., newspaper, on the
Services’ Web site, etc.).
16.5 Implementing the HCP and Executing the NEPA Decision
● a low-effect HCP may be implemented as soon as the permit is signed.
● an HCP with an EA may be implemented as soon as the FONSI and permit are signed
(550 FW 3(B)(4)).
● an HCP with an EIS may be implemented on whichever of the following dates is later—
the date the ROD is signed or the effective date on the permit.
16.6 Permit Issuance and Distribution of Copies of the Permit
As soon as the decision documents and permit are signed, we must copy them for the
administrative record and send the original permit to the permittee. Provide copies to all affected
offices.
16.7 Permit Denial, Review, and Appeal Procedures (Who Signs the Permit and Why)
FWS permit denials should be signed at the Deputy Regional Director or Assistant
Administrator-level or below to allow the Regional Director or Regional Administrator to be the
final administrative decision maker on a denied, suspended, or revoked permit appeal. If the
Regional Director signs the permit denial and it is appealed, it would have to go to Headquarters
for a decision.
16.7.1 Permit Denial
If we must deny the permit for any reason (i.e., doesn’t meet issuance criteria or other
requirements, or has disqualifying factors), we must notify the applicant of the denial in writing.
The letter must describe the reasons for the denial, including reference to the applicable
regulations we relied on when denying the application. It should also include information
indicating the applicant's right to request reconsideration of the permit application denial.
For NMFS, denials must be made in accordance with 15 CFR 904.

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16.7.2 Request for Reconsideration of a Permit Denial
For FWS, anyone who has received written notice of denial may request reconsideration. The
process is described in detail in the regulations at 50 CFR 13.29 (see the HCP Handbook
Toolbox). The reconsideration and appeals processes are the same as those used for permit
suspension and revocation decisions, as summarized in Chapter 17.6. Such an administrative
appeal is required by FWS regulations before the applicant can sue FWS in Federal court. The
request must be in writing, be signed by the person requesting reconsideration, and submitted to
the issuing officer within 45 days of the notification that the application was denied.
The issuing officer must notify the applicant of the decision on their request for reconsideration
within 45 days. If the decision is adverse, the applicant has 45 days to appeal to the Regional
Director. The Regional Director will notify the applicant of his/her decision within 45 days. The
decision of the Regional Director is the final administrative decision of the Department of the
Interior.
For NMFS, if the permit has been denied under 50 CFR 222.303(e)(1), the applicant must be
notified in writing. If authorized in the denial letter, the applicant can submit further information
or reasons why the permit should not be denied. The final action by the Assistant Administrator
is the final administrative decision of the Department of Commerce (50 CFR 222.303(e)(2)).
16.7.3 Copies of Denials
For FWS – A copy of all section 10 permit denials, including denial of reconsideration and
appeal requests, should be sent to all affected field offices, the Special Agent in Charge - Law
Enforcement, and the Headquarters Ecological Services office in Falls Church, VA.
For NMFS – Copies should be sent to affected field offices, Regional offices, and the
Endangered Species Division in Silver Spring, MD.
16.8 SPITS, APPS, and ECOS
Enter final terms and conditions and dates into SPITS (see instructions in the HCP Handbook
Toolbox).
Enter final information into the Environmental Conservation Online System (ECOS) for tracking
(see instructions in the HCP Handbook Toolbox). Upload electronic copies of the HCP, final
NEPA analysis and decision documents, biological opinion, and signed permit.

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PHASE 4: Implementing the HCP and Compliance Monitoring
Chapter 17: Implementing the HCP, Compliance Monitoring, and Making
Changes, If Necessary
17.1
17.2

17.3
17.4

17.5
17.6

Implementation and Administration of the HCP
HCP Monitoring Program: Ensuring the Funding, Conservation Commitments,
Mitigation, and All Other Aspects of the HCP Are Being Fulfilled; Review of
Annual Reports
17.2.1 Biological Effectiveness Monitoring
17.2.2 Incidental Take Permit Compliance Monitoring
Adaptive Management, Changed Circumstances, and No Surprises in Practice
Permit Amendments, Renewals, Transferals
17.4.1 Changes to HCP Implementation
17.4.1.1 Interpretations, Corrections, Clarifications, or Missing Details
17.4.1.2 HCP and Incidental Take Permit Amendments
17.4.2 Renewals
17.4.3 Permit Transfers
When Additional NEPA, Section 7, or NHPA Compliance is Needed
Permit Compliance Problems, Notifying Law Enforcement, Suspensions, and
Revocations
17.6.1 Permit Suspension and Revocation
17.6.2 Summary of FWS Suspension and Revocation Process Step by Step
17.6.3 Summary of NMFS Suspension and Revocation Process

17.7 Permit Abandonment or Relinquishment
______________________________________________________________________________
Creating a Habitat Conservation Plan (HCP) and issuing an incidental take permit does not mean
the process is over. With implementation, we begin a management process with the permittee
and stakeholders. Smaller, single applicant plans might not take long to implement, but for larger
scale, longer term plans, permit issuance begins an ongoing partnership to deliver regulatory
certainties and conservation benefits. By this stage, we expect that the HCP has been crafted to
foster this partnership. We must hold up our end of the deal to ensure this hard-earned
partnership does not devolve into an adversarial relationship.
17.1 Implementation and Administration of the HCP
Just as for HCP review and incidental take permit issuance, the Services’ field offices take the
lead in overseeing implementation and coordination with permittees in accordance with any
established implementation schedules. The FWS has spelled out field and Regional office roles
in the Service Manual (730 FW 1 and the associated Procedures). Regional offices share
information and assist in evaluating problems or questions that arise. Regional offices become
directly involved if decisions over permit suspension or revocation are elevated by the field.
To identify the implementation roles and processes we describe below, our first resources will be
the HCP and the incidental take permit. The HCP, the permit conditions, and possibly an
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implementing agreement, should provide the implementation steps, adaptive management,
monitoring, reporting requirements, and scheduled reviews (also see Chapter 10).
In HCPs where land acquisitions take place over time, the HCP should describe opportunities for
the Services to review and approve management plans to ensure consistency with its biological
goals and objectives. Similarly, as preserved land is added to the HCP, we should also have a
role in review and approval of monitoring plans. The need for Services approval of each
management or monitoring plan can be scaled in proportion to the size and complexity of the
HCP. Larger programmatic plans may establish a “framework resource management plan” that
governs individual land acquisitions so that the Services would not need to approve each
individual plan.
17.2 HCP Monitoring Program: Ensuring the Funding, Conservation Commitments,
Mitigation, and All Other Aspects of the HCP Are Being Fulfilled; Review of Annual
Reports
After we issue an incidental take permit, the compliance and implementation monitoring
measures built into the HCP and incidental take permit get set into motion. Services’ field offices
must now keep on top of implementation schedules for the incidental take permits in their
assigned work areas.
Compliance monitoring, otherwise known as “implementation monitoring,” is integral to the
HCP’s conservation plan (see Chapter 10.1). Compliance monitoring is a process we use to
verify that the permittee or an enrolled landowner is conforming to and correctly implementing
the HCP or their site-specific plan, any terms and conditions of the site plan, and the permit.
Who we monitor and coordinate with will vary depending on the incidental take permit structure
(see Chapter 3.4). The permittee named on the face of the incidental take permit is responsible
for fulfilling the HCP obligations. This may be modified for programmatic plans or if there are
co-permittees. In such cases, a lead permittee contact should be specified in the HCP or the
permit by their position title.
The purpose of compliance monitoring is not only to identify permittees or other covered
individuals who may be incorrectly implementing their plan, but also to:
● identify the activity that may have gone wrong or was incorrectly implemented,
● identify what factors led to the potential non-compliance, and
● find steps to remedy those factors so that non-compliance is less likely to occur in the
future.
17.2.1 Biological Effectiveness Monitoring
Effectiveness monitoring provides the evaluation of whether the effects of implementing the
HCP’s conservation program is consistent with the assumptions and predictions made when the
HCP was developed and approved. We use effectiveness monitoring to determine if the
permittee(s) are achieving the biological goals and objectives in the HCP.

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To determine if the conservation goals and objectives are being met, review the monitoring
outputs (see Chapter 10.4.3). Is the plan meeting expectations? Have any trigger points been
tripped that might require action by the permittee? Will we need to implement adaptive measures
(see Chapter 10.5) or contingency plans (see Chapter 11.1.5)?
Our monitoring of incidental take permit implementation does not occur in a vacuum. The
species and habitats affected by the HCP will be tracked by our species status assessment
processes for future recovery planning and project review. Tracking may involve inter-agency
review teams for resources, such as wetlands, regulated by other federal and state agencies.
17.2.2 Incidental Take Permit Compliance Monitoring
The Services are responsible for ensuring that the permittee meets the terms and conditions of
the incidental take permit and the accompanying HCP (i.e., compliance monitoring). In most
cases we will require that the permittee produce an annual report (or a report at some other
interval) that documents the status of their HCP and compliance with the associated permit (see
Chapter 10.1.3). We must review the annual reports to verify adherence to the terms and
conditions of the permit, HCP, and any implementing agreements to ensure incidental take of
covered species does not exceed the level authorized under the permit. Levels of take discussed
in the report should use the same units as are in the HCP and the permit. This information must
also be recorded in the Environmental Conservation Online System (ECOS) or the Tracking and
Integrated Logging System (TAILS), as appropriate (see HCP Handbook Toolbox).
These reports help us determine whether the permittee is properly implementing the terms and
conditions of the HCP, its incidental take permit, and any implementing agreement. They
provide a principle part of the long-term documentation in the administrative record 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 the accuracy of monitoring data submitted. These visits allow us to
develop a relationship with the permittee, verify information in annual reports, and assist the
permittee as a conservation partner. As highlighted in Chapter 10.4, our compliance monitoring
has to be planned ahead of our permit decision. If we fail to maintain a visible oversight, we risk
undermining public perceptions and the goodwill of permittees. We must keep up with the work
and be able to provide consistent support and fair enforcement.
Once an HCP is completed, field office staff and managers should meet to discuss how they will
put the monitoring plan (see Chapter 10.4) into effect. Consider addressing the following to
define the approach to monitoring compliance of an HCP:
1. Estimate time needed to track plan compliance.
2. Assign staff to track compliance.
There are a couple different ways to approach the staffing decision. You can assign:
a. an intern,
b. the staff lead who developed the HCP, or
c. separate staff.

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3. Use existing or develop a tracking tool (e.g., spreadsheet, database, etc.) to keep tabs on
plan compliance. Consider tracking the following areas:
a. plan commitments
i.
funding,
ii. timing of implementing specific tasks or expending funds, and
iii. rough step of conservation and impacts
b. conservation and impacts (habitat or individuals impacted),
c. species status in the plan area, and
d. progress or milestones in achieving goals and objectives.
4. Develop a compliance check timeline for when the field office lead needs to evaluate
compliance throughout the year.
5. Evaluate compliance:
a. read annual reports,
b. verify annual reports
i.
field visits,
ii. remote sensing or aerial imagery.
6. Enter appropriate compliance information into tracking tool (from #3 above).
7. For long term permits, periodic check-ins with the permittee may be needed so that we
can better track their status. Do they still own the property, or has their ability to
implement the plan diminished? See Chapter 17.4.3.
17.3 Adaptive Management, Changed Circumstances, and No Surprises in Practice
As we describe in Chapters 9.6 and 10.3, adaptive responses to changed circumstances are
incorporated into the HCP and become part of the operating conservation program. Adaptive
management measures become a permit requirement just as much as any restriction on earthmoving or tree-cutting. Like other aspects of the conservation program, the effectiveness of
management actions in reducing the effects of changed circumstances can be improved through
implementation of the monitoring and adaptive management programs.
However, there are limits to the changes we can expect from a permittee. No Surprises
assurances limit the scope of possible changes to an operating HCP after we issue the permit. No
Surprises assurances do not restrict changes to the HCP that result from the plan’s adaptive
management program or that consist of responses to changed circumstances identified in the
plan. Instead, they limit our ability to require measures beyond those provided for in the HCP’s
operating conservation program if changed circumstances that were not identified in the HCP or
unforeseen circumstances occur.
These are the expectations for performance under No Surprises assurances:
● Changed circumstances provided for in the HCP: Adaptive measures provided for in the
HCP will be implemented by the permittee as specified in the HCP.
● Changed circumstances not provided for in the HCP: The Services may suggest adaptive
measures, but they are not required without the permittee’s consent.
● Unforeseen circumstances: Adaptive measures that are outside the scope of the HCP’s
operating conservation program can be negotiated, but will not be required without the
permittee’s consent. However, we may require additional measures, if any, limited to
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modifications within the conserved habitat areas or to the HCP’s operating conservation
program, and that maintain the original terms of the HCP to the maximum extent
possible, if those modifications do not result in the commitment of additional land, water,
or financial compensation or additional restrictions on the use of land, water, or other
natural resources. The Services must demonstrate that unforeseen circumstances exist.
The adaptive measures or changed circumstances sections of the HCP should have established
notice and coordination procedures so that the Services and permittee can each propose changes
and reach agreement on how to implement what’s needed. There may be scheduled reviews
linked to periodic performance reports, or a stakeholder might at any time identify an issue that
needs attention from the Services and the permittee.
We must determine whether unforeseen circumstances have occurred, based on the HCP’s plan
for identifying and addressing changed circumstances (see Chapter 9.6). FWS staff must alert the
Regional Director (RD), through the Assistant RD-Ecological Services, to allow the RD at least
10 days to review a finding of unforeseen circumstances before it is finalized (730 FW 1,
see HCP Handbook Toolbox). We will notify the permittee about the need to discuss possible
responses and, if there are available responses, whether the permittee is willing to implement
them regardless of their No Surprises assurances (see Chapter 9.6.2 through 9.6.4). We can
require certain changes that remain within the scope of the HCP’s conservation plan if they do
not require increased expenditures of funds, lands, or waters than what the permittee previously
agreed. Reinitiation of the intra-Service section 7 consultation in response to the unforeseen
circumstances can help provide a basis to discuss potential changes with the permittee. We can
think of this as redirecting previously agreed-upon strategies as long as the redirection is
consistent with the scope of previously established adaptive management provisions. The No
Surprises rule does not prevent the permittee from voluntarily taking action or committing
additional land, water, and financial resources to help remedy the situation.
We will work with other Federal agencies, the States, and appropriate parties to muster available
resources to help respond to the impacts from unforeseen circumstances. To maintain
interagency cooperation under section 6 of the Endangered Species Act (ESA), we will use the
expertise and solicit information and participation from involved State agencies in all aspects of
the HCP planning process, including dealing with unforeseen circumstances.
If continuation of the permit is likely to jeopardize the continued existence of a covered species,
and even if the permit is being properly implemented, we may revoke it because of an
unforeseen circumstance. This is a last resort that we should only take if all our efforts cannot
prevent jeopardy of a covered species. We should do all we can in recruiting other Federal and
State agencies, interested parties, and available resources to remedy the situation before taking
this step.
17.4 Permit Amendments, Renewals, Transferals
Many incidental take permits extend for years or decades, so the HCP should give consideration
to the potential for changes, renewals, or possible permit transfers. The HCP or incidental take
permit should address the possibility for amending the HCP or the permit and cite the statutory
and regulatory provisions of ESA sections 7 and 10 and the National Environmental Policy Act
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(NEPA) that govern changes to operations and documents. Beware of language that develops
processes or decisions that exceed the scope of our ESA implementing and permitting
regulations.
Any time we sign a new section 10 permit instrument for an amendment, renewal, or transfer, we
must satisfy all of the review requirements needed for section 10 permit issuance (see Chapters
13 through 16). As described in Chapter 17.5, we must evaluate whether a permit amendment
requires additional public notice, section 7 review, or NEPA analysis. Even if we determine that
the original notice and analyses do not require updating, we must note that in our findings for the
specific action. An applicant for a permit renewal, amendment, or transfer will also have their
record of compliance to consider. We cannot renew, amend, or transfer a permit where there are
compliance deficiencies.
17.4.1 Changes to HCP Implementation
Each revision of the HCP, section 7, NEPA, or other documents or processes established under
the HCP will not necessarily result in amending the incidental take permit. The need to amend
the permit depends on the nature of the HCP changes, how those changes need to be reflected in
the permit, and whether they would trigger additional section 7 or NEPA review.
Evaluate requested interpretations or changes to the HCP or permit in relation to the analyses
that supported issuance of the current permit:
● Do the proposed changes need to be incorporated into an amended permit?
● Do the proposed changes exceed the scope of what has already been analyzed and
advertised to the public?
Any degree of change should be memorialized in the permit’s case file. This may be an exchange
of correspondence, replacing a faulty document page with a corrected one, or a range of more or
less extensive permit amendments.
17.4.1.1 Interpretations, Corrections, Clarifications, or Missing Details
As a permittee begins its project, questions often arise over interpretation of permit and HCP
requirements. Sometimes an HCP will need clarification to address small errors, omissions, or
language that may be too general or too specific for practical application. It is common for parts
of an HCP covering many activities across large landscapes to be general. Where clarifications to
the HCP will affect future implementation, the Services and the permittee should memorialize
the interpretation in writing and retain them in the administrative record. These clarifications
should also be distributed to other affected parties.
17.4.1.2 HCP and Incidental Take Permit Amendments
Changes in implementation of the HCP may require amendments to the HCP, incidental take
permit, implementing agreement, or other implementation-related documents. Either party can
initiate amendments, but it is up to the Service to decide the level of review needed to satisfy
ESA statutory and regulatory requirements.
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Amendments might be approved by an exchange of formal correspondence, addenda to the HCP,
revisions to the HCP, or permit amendments. However, as the scale or scope of any amendment
increases, it becomes more likely that we will need to publish public notice and amend the
NEPA and section 7 analyses.
In general, as we memorialize our decision to amend documents, we will specify the old text,
proposed new text, the reason for the change, intended effects, and justification for the
modification. Except for a permit amendment, we may not need to reprint the entire affected
document. It is important to put the permit number on all formal correspondence and to retain it
in the permit file.
We usually will not need to advertise an amended HCP when levels of incidental take do not
increase and the activity does not expand in ways not analyzed in the original NEPA or section 7
documents. Changes to an HCP of this level will need to be reflected in an amended permit. The
types of activities that require permit amendment, and publication in the Federal Register
include, but are not limited to:
●
●
●
●
●
●

addition of new species, either listed or unlisted,
increased level or different form of take for covered species,
changes to funding that affect the ability of the permittee to implement the HCP,
changes to covered activities not previously addressed,
changes to covered lands, and
significant changes to the conservation strategy, including changes to the mitigation
measures.

If the permit has been written to reference or incorporate HCP provisions, it will minimize the
need to amend the permit as it is implemented. Coordination procedures should also have been
built into the adaptive management measures of the HCP or the permit so that the permittee and
the Services may reach mutual agreement on corrective revisions to make without having to
submit a formal amendment request. Some examples of these HCP and permit changes where the
take levels and project activities are not substantively altered include:
●
●
●
●
●
●

correcting insignificant mapping errors,
slightly modifying avoidance and minimization measures,
modifying annual reporting protocols,
making small changes to monitoring protocols,
making changes to funding sources, and
changing the names or addresses of responsible officials.

Any permit actions finalized this way must be made public. We can satisfy this requirement by
posting all permit actions on field office Web sites, and including any such permit amendments
in our routine batch notice of issued permits (see Chapter 16.3).
As noted above, any permit amendment must satisfy section 10 review requirements. As the
scale and scope of any amendment increase, other responsibilities may be triggered. If this
happens, it’s important that we conduct a careful review and internal scoping to ensure all such
steps and responsibilities are addressed, such as tribal trust or cultural resource responsibilities.
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17.4.2 Renewals
Any ESA section 10 permit is eligible to be renewed before the term expires if so stated on the
permit. FWS regulations at 50 CFR 13.22 and NMFS regulations at 50 CFR 222.304 allow a
permit to remain in effect while we consider a renewal request, but only if the renewal request is
received at least 30 days before expiration (see HCP Handbook Toolbox).
Although it might not be likely that we need to renew large HCPs with terms lasting for decades,
renewing incidental take permits is a practical concern. A permittee may not always begin
covered activities before their permit nearly expires. In such cases, we should review the HCP to
determine if changes are necessary. Revisions depend on how much of the originally covered
activity has been completed, whether the mitigation has kept pace with impacts, or possibly if the
status of covered species has changed. The effects of climate change, or other factors, may lead
us to recommend new species or habitat surveys to identify potential HCP amendments. As we
consider renewal requests we will honor No Surprises assurances as much as practicable, but any
renewed permit must satisfy applicable statutory and regulatory requirements in force as of the
date of the approval of the renewal request. Permit renewals must be advertised in the Federal
Register before we make our decision, even if there are no revisions.
Permit renewal sometimes offers an opportunity for an adaptive management strategy. We might
issue an incidental take permit for a relatively short time period to identify implementation
issues. These issues can then be addressed in a renewed permit with a significantly longer term
than the original. In this case, revised or entirely new HCP, section 7, and NEPA analyses will
likely be needed. If this strategy is employed, we should make this clear in our initial public
notice for the original permit action, and the HCP should describe this as well.
17.4.3 Permit Transfers
Permit transfers usually are the result of an exchange in ownership of the covered lands. The new
owner will assume the responsibilities associated with the HCP and will also expect to receive
the benefits of the permit. An assumption agreement is a key component of such a transaction. It
outlines the roles and responsibilities of all the parties including the Service. The assumption
agreement addresses any outstanding obligations and how they will be completed. An
assumption agreement, at its simplest, is a joint submittal by the transferor and transferee as
prescribed by 50 CFR 13.25 and 50 CFR 222.305, or it can resemble a memorandum of
understanding (see HCP Handbook Toolbox).
A partial permit transfer works the same way, except that only a portion of the HCP
responsibilities or permit area will change ownership, generally with the remainder of the HCP
continuing under the original permittee. This may get complicated depending on the number of
covered species, their distribution in the permit area, and specific concerns for each covered
species involved. The original permittee and transferee might not each be responsible for all of
the species once the permit and the property are divided. How this division occurs must be
addressed in the assumption agreement and in the incidental take permits.
Permit transfer is a distinct action compared to an amendment or renewal. Nevertheless, the
administrative process to transfer a permit is effectively the same as for an amendment, but it
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does not require Federal Register notice until finalized. This is true even for partial transfers
where a new permit is issued to the new partial owner of the original project.
● In a complete transfer, we issue an amended permit to the new owner.
● In a partial transfer we issue an amended permit to the original permittee and a new
permit to the new owner.
Any permit we issue as a result of a partial or full transfer will retain the expiration date of the
original permit. The permittee/transferee may request renewal to alter the expiration date.
For FWS, we request the transferee submit an FWS application form, 3-200-56 (see HCP
Handbook Toolbox), to meet the certification requirements of 50 CFR 13.25, and so we can
complete the case file for their permit. The transferee must meet all of the qualifications required
to receive an incidental take permit, which means demonstrating the capacity to implement the
HCP or that portion they are assuming responsibility for, the legal ability to perform the
authorized project, and providing funding assurances.
For NMFS permit transfers, regulations at 50 CFR 222.305(a)(3) specify the process (see HCP
Handbook Toolbox). Incidental take permits issued under50 CFR 222.307(see HCP Handbook
Toolbox) may be transferred in whole or in part through a joint submission by the permittee and
the proposed transferee. For a deceased permittee, the deceased permittee’s legal representative
and the proposed transferee may make a joint application, provided NMFS determines in writing
that the proposed transferee: (1) meets all qualifications for holding a permit; (2) has provided
adequate written assurances that it will provide sufficient funding for the conservation plan or
other agreement or plan associated with the permit and will implement the relevant terms and
conditions of the permit, including any outstanding minimization and mitigation requirements;
and (3) has provided such other information as NMFS determines is relevant to process the
transfer.
FWS regulations at 50 CFR 13.24 and NMFS regulations at 50 CFR 222.305(a)(2) (see HCP
Handbook Toolbox) authorize certain successors of the original permittee to carry out a
permitted activity for the remainder of the permit term in cases of foreclosure, bankruptcy,
inheritance by family members, etc. To obtain authorization, the successor must notify us within
90 days of the date the successor begins to carry out the permitted activity and obtain our written
endorsement. To give them authorization we must determine that the successor meets the
qualifications to hold the permit, is capable of implementing the permit, including all outstanding
minimization and mitigation measures, has provided adequate assurances of funding, and has
provided any other relevant information requested. Transfer of a permit in accordance with 50
CFR 13.25 satisfies the “endorsement” requirement. If the permitted activities have gotten under
way, we must reach out to the permittee’s successor as soon as possible so that the successor is
made aware of the incidental take permit, its obligations, and the requirements of 50 CFR 13.24.

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17.5 When Additional NEPA, Section 7, or NHPA Compliance Is Needed
While NEPA and section 7 will be considered anytime we issue a new permit instrument, we
most often revise these analyses for permit amendments that would increase the amount of take
or otherwise exceed what was originally reviewed. In the simplest cases (small amendments,
simple renewals, or transfers), we often do not need to amend these documents. We must,
however, state in our findings that we reviewed the section 7 and NEPA requirements and
determined that the existing analyses remain valid. Older section 7 and NEPA documents should
be reviewed for possible updates due to changing background conditions (i.e., climate change
effects, human population growth, etc.).
Documentation requirements are often less for an amendment than for the original permit
application, depending on the extent or complexity of the proposed change. For example, the
NEPA analysis for the amendment can be tiered off the NEPA analysis for the original permit
(40 CFR 1502.20), or the original NEPA analysis can be incorporated by reference into the
amendment’s supporting documents (40 CFR 1502.21). If the original permit application
required an environmental impact statement (EIS), the amendment may require nothing more
than an environmental assessment (EA).
We may be able to prepare addenda to the original section 7 consultation or NEPA document.
The more extensive the changes, however, the more desirable it becomes to start over with new
review documents. In general, the determining factors for the level of NEPA compliance are the
effects upon the human environment and the level of previous analysis. While the level of NEPA
compliance is somewhat independent of the extensiveness of proposed changes, we still expect
that less extensive amendments will not require a supplemental EA or supplemental EIS.
National Historic Preservation Act (NHPA) (see HCP Handbook Toolbox) compliance comes
under consideration if new lands are to be added to the permit area, or if the intensity or extent of
previously covered activities increases within the permit area. Especially consider conducting
new or additional NEPA, section 7, and NHPA analyses whenever a permit renewal with
amendments is under review, or if the HCP has been completely rewritten.
17.6 Permit Compliance Problems, Notifying Law Enforcement, Suspensions, and
Revocations
The permittee enjoys No Surprises assurances as long as they implement the permit and HCP
properly. If we become aware of a deficiency in implementation, either of the project or the
mitigation, of activities not covered by the incidental take permit, or of take in excess of that
authorized, we should notify the permittee. What we describe here is an escalation of notice,
administrative measures, law enforcement investigation, suspension, revocation, and civil or
criminal processes.
These steps are only suggestive. Use your best judgment about giving a permittee the benefit of
the doubt versus resorting early to more formal processes, or even early referral to solicitors or
general counsel or law enforcement. There may be more than one round of communication at
each phase, but unresolved issues must not be left to linger. The urgency of resolving compliance
problems depends on such factors as the permittee’s track record of compliance and the risk and
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level of additional effects to covered species or other resources. Going through a series of
progressive process of notices like this will help build the administrative record in support of our
actions to resolve implementation problems.
The FWS has an August 22, 2016, National Protocol for Addressing Take and Potential ‘Take’
of Endangered Species through Habitat Modification (see HCP Handbook Toolbox). As we
follow this protocol, ensure that law enforcement is aware of any HCP and incidental take permit
that might influence our response to an enforcement situation.
The tone of communications with permittees is vitally important to maintaining good working
relationships with them. All communications should be crafted, commensurate with the gravity
of the situation, while considering maintaining a long-term working relationship with the
permittee. In any communications, refrain from using variations of the terms “violate” or
“violation” unless cleared by a solicitor. Instead, use words like “non-compliance,”
“inconsistent,” “not authorized,” “shortcomings,” “exceeds” or similar terms.
If a good working relationship is established by this time, the initial notice to the permittee may
be appropriately handled by a staff member via telephone or e-mail. It is usually appropriate to
frame this first communication in terms of asking if the permittee needs assistance and pointing
out that certain activities are lagging. The permittee may have encountered unexpected
difficulties in the permit or HCP requirements. We must memorialize this communication in
writing and retain it in the project file.
If the response by the permittee is inadequate, we should consider a formal notice in writing. The
notice should describe the situation as the Services understand it. List the specific permit
conditions and HCP provisions that are not being implemented correctly. State specifically what
needs to be done to bring implementation of the HCP and permit back into compliance. The
Service may be willing to consider alternatives to the remedies we propose, but we suggest
coordinating this with the Regional Office before offering options to the permittee.
If the permittee still fails to respond satisfactorily, then consult with the Regional HCP
Coordinator to contact the solicitors or general counsel and, if we have not yet, consider referral
to law enforcement for investigation. Any further communications with the permittee should
involve solicitor or general counsel advice. The Regional Office will need copies of all
documented communication and correspondence between the field office and permittee.
17.6.1 Permit Suspension and Revocation
Criteria and processes for incidental take permit suspension and revocation are found in FWS
general permit regulations of 50 CFR 13.27 and 13.28, respectively and in NMFS regulations at
50 CFR 222.306 (see HCP Handbook Toolbox). Specific criteria for FWS revocation appear at
50 CFR 17.22(b)(8) and 17.32(b)(8) and for NMFS at 50 CFR222.306(e). The field office cannot
suspend or revoke a permit. Authority over permit suspension and revocation decisions is
retained at the Regional Office level for all permits, even those that field offices issue.
Suspension and revocation can be lengthy processes that begin with a proposal to suspend or
revoke. At each step along the way, there are prescribed periods in which a permittee can object
or appeal our actions. These are the same appeal processes used in our permit decisions (see
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Chapter 16.7). It is not necessary to suspend a permit before proposing revocation. Considering
the revocation criteria, however, we expect that failure to correct deficiencies of a suspended
permit would be the most likely situation leading to proposed revocation.
You should not consider permit suspension or revocation as the first step in compliance
enforcement. We recommend that implementation measures built into the HCP address
communications, so that misunderstandings or occasional shortcomings do not snowball into a
proposed suspension or revocation. Still, these processes provide the administrative mechanism
for formally addressing non-compliance. A permittee who has had a permit revoked is
disqualified from receiving or exercising the privileges of a similar permit for a period of 5 years
from the date of the final agency decision on the revocation (50 CFR 13.21(c)(2) and (d)). To
date, we have suspended only one incidental take permit, but we have issued proposals to
suspend in a small number of cases.
In addition to suspension and revocation, we can seek civil or criminal penalties under the ESA
for permit violations. To do so requires coordination with and investigation by the Office of Law
Enforcement. We should get law enforcement involved early to facilitate any civil or criminal
case we might make, especially if we suspect harm of listed species. Even if we do not pursue
civil or criminal penalties, having law enforcement officers investigate demonstrates due
diligence in support of any action we take.
The regulations require us to send proposals and certain other correspondence by certified mail.
We recommend that you simultaneously send a copy by an overnight courier service so that
timelines are unambiguously established, and so that we receive confirmation of the permittee’s
receipt. A recipient of certified mail can refuse to accept delivery, and the U.S. Postal Service
will eventually return the undelivered correspondence. Sending a separate copy ensures that our
correspondence reaches the permittee.
In our initial proposal, we should instruct the permittee to stop any actions that cause
unauthorized take. If appropriate, we should suggest remedial measures. Given that a field office
can usually transmit correspondence to a permittee faster than a proposal from the Regional
Office, it may be useful for the field office to send a short letter recommending that the permittee
cease the problematic actions while the Services considers its formal response at the Regional
level.
If the permit is not suspended or revoked after issuing a proposal, we can still impose remedial
measures. The regulations at 50 CFR 13.23(b) (see HCP Handbook Toolbox) allow us to amend
permits with just cause upon a written “finding of necessity,” consistent with No Surprises
assurances. No Surprises assurances apply only to properly implemented activities affecting
adequately covered species. No Surprises assurances do not apply to unauthorized activities. We
should document in writing the deficiencies that provide just cause for amendment, such as:
●
●
●
●

permittee’s failures to properly implement the permit,
species impacts that are not adequately covered,
actions that are not authorized by the permit, and
the determination that No Surprises assurances have lapsed.

17-12

The finding of necessity should then list and describe the necessary measures to remediate or
correct these deficiencies so that the permittee can come into compliance with the ESA and
implementing regulations. This finding of necessity can be incorporated into our findings on any
amended incidental take permit, or it may be appropriate to include it with the initial proposal.
17.6.2 Summary of FWS Suspension and Revocation Process Step by Step
1. The issuing officer (Deputy Regional Director (DRD) in most Regions) sends a proposal
to suspend. Required contents of the proposal are provided at 50 CFR 13.27(b).
2. Once the proposal is received, the permittee has 45 days to submit a written objection to
the proposal (50 CFR 13.27(b)(2)).
3. After the permittee’s objection period ends, the DRD has 45 days to issue a decision on
the proposal (50 CFR 13.27(b)(3)).
4. Under Part 13.29, the permittee has 45 days from the date of the suspension decision to
request reconsideration by the DRD. The DRD then has 45 days to notify the permittee of
the results of the reconsideration. During the reconsideration period, we may conduct a
“separate inquiry” (50 CFR 13.29 (b) through (d)).
5. If the request for reconsideration is denied, the permittee may appeal to the RD within 45
days. This appeal must be in writing, and the permittee “may present oral arguments
before the [RD] … if the [RD] judges oral arguments are necessary to clarify issues
raised in the written record” (50 CFR 13.29(e) and (f)).
6. The FWS must notify the permittee in writing of the RD’s decision within 45 calendar
days of receipt of the appeal. The RD’s decision is the final administrative decision of the
Department (50 CFR 13.29(f)(2) and (3)). Note that an administrative appeal is required
by FWS regulations before the applicant can sue FWS in Federal court.
Helpful Hint: Permits should be signed by the DRD or below because the final administrative decision
on any permit suspension or revocation is issued by the RD.

7. Once all reconsiderations and appeals are exhausted, the permittee must surrender the
permit to the DRD after being notified that the permit has been suspended (50 CFR
13.49).
8. Failure to correct deficiencies that were the cause of the suspension within 60 days of the
suspension is grounds for revocation of the permit (50 CFR 13.28(a)(2)). The processes
and schedule for permit revocation and appeal of an adverse decision are the same as
those for permit suspension (1 through 7, above). (50 CFR 13.28, 29, and 49; also
17.22(b)(8) and 17.32(b)(8)) (for the complete set of the suspension and revocation
regulations, see HCP Handbook Toolbox).
17.6.3 Summary of NMFS Suspension and Revocation Process
The NMFS suspension and revocation process will begin when a violation of 50 CFR 222, 223,
or 224 occurs; when a violation of the ESA occurs; or if a violation of a term and condition of
the permit occurs. Subpart D to 15 CFR 904 provides permit sanctions for violation or
noncompliance (see HCP Handbook Toolbox).

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17.7 Permit Abandonment or Relinquishment
Should a permittee choose to terminate their covered activities and relinquish the permit, we
must meet with the permittee to determine the appropriate courses of action. The HCP may have
addressed early termination of covered activities, so there may be responses already provided.
Fundamentally, the permittee must ensure that the mitigation required under the HCP for all the
incidental take that has occurred is carried out, including any ongoing conservation funding and
implementation assurances. We will not cancel the permit until we determine that all outstanding
minimization and mitigation measures for past take have been implemented (50 CFR 17.22(b)(7)
and 17.32(b)(7) (see HCP Handbook Toolbox)).

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Appendix A
National Historic Preservation Act (NHPA) Compliance and Habitat Conservation Plans
(HCP) for the U.S. Fish and Wildlife Service (FWS)
Background
The U.S. Fish and Wildlife Service (FWS) decided in 1999 that the issuance of an incidental take
permit (and/or enhancement of survival permit) under section 10 of the Endangered Species Act
(ESA) is an undertaking subject to compliance with section 106 of the National Historic
Preservation Act (NHPA) of 1966, as amended (see Assistant Director - Endangered Species
(AES) memo dated 2000 in the HCP Handbook Toolbox). Because of the magnitude and
complexity of the Habitat Conservation Planning (HCP) program, this guidance is intended to
assist FWS staff to ensure NHPA compliance when issuing section 10(a)(1)(B) incidental take
permits. Section 106 of the NHPA requires the FWS to take into account the effects of their
undertakings on historic properties (i.e., significant cultural resources). In this regard, the key
components of this guidance state that the FWS must consult with the State Historic Preservation
Officer (SHPO), Tribal Historic Preservation Office (THPO), and federally recognized Native
American tribes, Native Hawaiian organizations, and Native Alaskan Corporations (tribes) and
consider their comments on the potential impacts to historic properties resulting from the
undertaking, and endeavor to incorporate their comments into project planning.
Legal Context and Overview
Compliance with the NHPA, as amended, is required by law for all Federal undertakings. An
undertaking is defined in 36 CFR 800.16(y) of the NHPA’s implementing regulations as “a
project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of
a Federal agency, including those carried out by or on behalf of a Federal agency; those carried
out with Federal financial assistance; and those requiring a Federal permit, license or approval.”
Under this definition, the issuance of section 10(a)(1)(B) incidental take permits for activities
covered in an HCP constitutes an undertaking subject to review and compliance under section
106 of the NHPA.
The issuance of an incidental take permit and the permittee’s covered activities described in the
HCP under our direct jurisdiction constitute an undertaking under section 106 of NHPA. The
covered activities and conservation measures stipulated as a condition of the permit and
described in the HCP that have the potential to cause an adverse effect to historic properties are
subject to further review under NHPA. The permit, however, as defined by the ESA, authorizes
take of species that is "incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity.” The otherwise lawful activities are subject to approval under other Federal,
State, or local regulations.
FWS staff should coordinate closely with their Regional Historic Preservation Officers (RHPO)
early in the HCP development process so they can help establish the Area of Potential Effect
(APE), consult with the SHPOs and THPOs (if necessary), and advise the applicant of any
potential effects to historic properties. We should make a good faith effort to identify and
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suggest, if feasible, avoidance measures on historic properties during project planning [36 CFR
800.13(b)]. We should inform the applicant of our section 106 responsibilities and concerns
regarding how we should ameliorate impacts to historic properties. Section 106 and its
implementing regulations at 36 CFR 800 provide the steps and requirements for complying with
NHPA (see HCP Handbook Toolbox).
Policy addressing the management and protection of significant cultural resources (referred to as
historic properties) can be found in the FWS Manual, under Part 614 (see HCP Handbook
Toolbox). The purpose of this guidance is to clarify and interpret key elements of the regulations
as they apply to the development of HCPs and issuance of section 10(a)(1)(B) ITPs.
Purpose and Compliance Goals
The purpose of section 106 of the NHPA is to integrate preservation concerns with the needs of
Federal undertakings.
Helpful Hint:
 The goal is to consult and plan to avoid destroying or damaging historic properties as a
consequence of Federal actions or undertakings that have the potential to cause
reasonably foreseeable effects.
 The compliance steps in 36 CFR 800 emphasize flexibility and early coordination to
ensure that section 106 compliance is achieved with the minimum of disruption and
costs to a Federal agency and its applicants. Voluntary adoption of substantive
compliance provisions may decrease the needed NEPA analysis.
 Ensuring NHPA compliance does take time. In general, the larger and the more
complex the project, the more the lead time will be needed.
 The regulations at 36 CFR 800 define “historic property” as “any prehistoric or historic
district, site, building, structure, or object included in or eligible for inclusion in the
National Register of Historic Places maintained by the Secretary if the Interior.”
 The phrase “eligible for inclusion in the National Register of Historic Places” includes
properties formally determined as such in accordance with regulations and all other
properties that meet the National Register’s eligibility criteria.

An applicant may not destroy a cultural resource as defined by NHPA in order to avoid the
requirements of section 106 as per 54 U.S.C 470h-2(k). Should an applicant do so, the FWS
generally will refer the violation to appropriate authorities, which may delay or imperil the
permit.
Starting the Section 106 Compliance Process
Your RHPO or designated cultural resource staff may provide other procedures in your Region,
but the following are basic steps for section 106 compliance. The FWS field biologist should
contact the Regional HCP Coordinator as early as possible in the development and review
process for proposed HCPs. This would generally be when the HCP plan area has been
determined. The Regional HCP Coordinator or field biologist should then contact their RHPO or
designated cultural resource staff.
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The RHPO or designated cultural resource staff must assist the HCP Coordinator and/or field
biologist to achieve compliance with NHPA, which involves consulting with the SHPO, THPO,
Native American tribes, the applicant, and other interested parties that may be involved in the
HCP planning process. Note: RHPO assistance is dependent upon support and availability.
The FWS may use information provided by applicants, consultants, or designees for completing
documents associated with National Environmental Policy Act (NEPA) and NHPA for an HCP.
However, the FWS drives consultation and remains legally responsible for all required findings
and determinations associated with the NEPA and NHPA review and compliance process.
Helpful Hint:
 The initial consultation letter with SHPO could present our determinations on items
1through 5 in section A below and suggested resolution of adverse effects for the SHPO’s
concurrence. Voluntary adoption of suggested adverse effects resolution may decrease the
needed NEPA analysis (e.g., allowing an EIS to meet the criteria for a mitigated EA/FONSI).
 Consultation with federally recognized tribes is part of the process. Consultation with the
THPO or Regional Tribal Liaison is required for projects on tribal lands, but consultation
with tribes that have a historical association with a project area is also required.
Determining the appropriate tribes is part of the section 106 process.
 The intent of section 106 is not to stop or delay projects. It is to ensure that the FWS fully
considers historic preservation issues and the views of the public during project planning.

Sections A through F below provide information and serve as guidance for achieving compliance
with section 106.

SECTION A: The Section 106 Process
Section 106 involves the following steps by a qualified archaeologist as defined in section 800.2
(a) (1) of the NHPA:
1. Define the Area of Potential Effects (APE)
A key step in the process is determination of the “area of potential effects” associated with a
potential undertaking (i.e., proposed HCP). Section 800.16(d) of 36 CFR 800 defines the APE as
“the geographic area or areas within which an undertaking may directly or indirectly cause
changes in the character or use of historic properties, if any such properties exist. The APE is
influenced by the scale and nature of the undertaking and may be different for different kinds of
effects caused by the undertaking.” The APE includes the areas where the FWS has authorized
take and influenced the project through negotiation of the avoidance, minimization, and
mitigation measures, as well as the activities associated with their implementation. It may
include reasonably foreseeable impacts outside areas associated with conservation measures if
the permit causes such impact, but be sure that such impacts would not already occur without the
permit.

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Helpful Hint:
 The “scale and nature of the undertaking’ must be carefully considered, and limits the
seemingly infinite possibility of effects for an undertaking.
 In some cases, an undertaking may have no potential to affect historic properties. 36 CFR
800.3 (a)(1) addresses this possible outcome of a determination of effect. This finding, in
consultation with your RHPO or designated cultural resource staff, may be documented
with a memo to the file.

2. Identifying Historic Properties
Section 800.4(1) of the regulations directs the FWS to make a “reasonable and good faith effort”
to identify historic properties in consultation with the SHPO/THPO and tribes, taking into
consideration the magnitude and nature of the undertaking and degree of Federal involvement.
This effort includes, but is not limited to, reviewing scientific literature for the archaeological,
historical, and historic structural resources for a given APE. It could also include field
investigation and documentation of historic properties in the APE, and report preparation that
describes the effort of identifying historic properties for the APE, and evaluation of historic
properties for their eligibility to the National Register of Historic Places. This review is done in
consultation with SHPO/THPO, tribes, and other interested parties. The goal is to help determine
whether historic properties might be in the APE, and if so, how the proposed undertaking might
affect those properties (see next section). These factors and components of an identification
effort are found in regulations at 36 CFR 800.4(b)(1).
3. Evaluate Historic Properties
Not all historic properties in an APE are necessarily significant. All historic properties in an
APE, which includes archaeological sites and historic structures, are evaluated against a specific
set of criteria in 36 CFR 60. These regulations establish the criteria for eligibility to the National
Register of Historic Places, which helps you determine if a property will need to be considered
further in the Section 106 process.
The evaluation of historic properties is carried out in consultation with the FWS cultural
resources staff, HCP staff, the SHPO/THPO, tribes, applicant, and any other interested parties
that may be involved. The SHPO or THPO office reviews the FWS’s findings, and they may
agree or disagree. Disagreements are usually resolved with additional information or
clarification.
Determining eligibility takes time to complete and requires a detailed knowledge of the
archaeology, history, and architectural history of a State and region, and it is one of the critical
services provided by the SHPO or THPO, tribes, and the FWS’s cultural resources staff.
NOTE: An HCP planning area may include properties already listed or found potentially eligible
for the National Register of Historic Places.

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4. Assessment of Effects
The FWS’s Regional HCP Coordinator or field biologist will work with the RHPO, and
designated cultural resources staff to determine if any activities that are covered by the proposed
HCP would have the potential to affect historic properties. Although FWS may use contractors to
collect information, coordination with the RHPO remains necessary.
If listed or eligible properties to the National Register are identified, we must assess the potential
effects of the proposed undertaking on the resource. Some of the actions that could result in an
adverse effect on historic properties include, but are not limited to: (1) physical destruction of or
damage to all or part of the property; (2) alteration of a property, including restoration,
rehabilitation, repair, maintenance, stabilization, hazardous material remediation, and provision
of handicapped access, that is not consistent with the Secretary’s Standards for the Treatment of
Historic Properties (36 CFR 68) and applicable guidelines; (3) removal of the property from its
historic location; (4) change of the character of the property’s use or of physical features within
the property's setting that contribute to its historic significance; (5) introduction of visual,
atmospheric, or audible elements that diminish the integrity of the property's significant historic
features; (6) neglect of a property which causes its deterioration, except where such neglect and
deterioration are recognized qualities of a property of religious and cultural significance to an
Indian tribe or Native Hawaiian organization; and (7) transfer, lease, or sale of property out of
Federal ownership or control without adequate and legally enforceable restrictions or conditions
to ensure long-term preservation of the property's historic significance.
Again, in consultation with SHPO/THPO, tribes, and other interested parties, the Federal agency
determines whether the proposed undertaking could affect the properties using the criteria of
effect and adverse effect. There are several potential outcomes:
1. If a project results in no historic properties affected, the project can proceed. This
outcome occurs when the nature and extent of the undertaking does not affect historic
properties, or there are no properties in the area of potential effect.
2. If a project will have no adverse effect on historic properties, the Federal agency must
submit project documentation to the SHPO/THPO for concurrence. This occurs when
historic properties are located in the APE, but the actions will not adversely affect those
properties either because of the nature of the undertaking or because they will be avoided.
3. If a project will have an adverse effect on historic properties, the Federal agency must
begin consultation with the SHPO/THPO and the Advisory Council on Historic
Preservation (ACHP) to minimize the adverse effect (see next section).

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Helpful Hint:
 Only properties identified as eligible or potentially eligible for inclusion on the Historic
Register reach this step (see previous section). This is an important concept in making the
section 106 process work. In practical terms, this means that not every artifact or building
will meet the definition of a historic property under section 106, so those that fail to meet
the definition do not need to be considered in an HCP, even for large areas.
 It may be possible to modify the undertaking activities in an HCP to avoid adverse effects.
This is most efficiently accomplished at the early planning stages of the project. This also
may streamline the needed NEPA analysis.

The formal regulations for the assessment of adverse effects are found at 36 CFR 800.5.
5. Resolution of Adverse Effects
When an adverse effect to a historic property cannot be avoided, we consult with SHPO/THPO,
tribes, and other interested parties to identify ways to mitigate the effects of the undertaking.
This process usually results in the development of a Memorandum of Agreement (MOA) or
Programmatic Agreement (PA), which identifies the steps we propose to the applicant to take to
reduce, avoid, or mitigate the adverse effect. The MOA or PA is submitted to the ACHP for
review and comment; the ACHP may or may not participate in the consultation. The voluntary
adoption by the applicant of an MOA or PA can potentially streamline the NEPA analysis.
The FWS must document the resolution process and include it in the administrative record for
the HCP. Details on the consultation process for resolution of adverse effects are found at 36
CFR 800.6.
NOTE: “Resolution of Adverse effects” involves mitigation to lessen or remove impacts to the
qualities that make a historic property eligible for the National Register of Historic Places. This
means that not every impact that may occur to eligible historic properties will end up with an
MOA.
Failure to Resolve Adverse Effects
If resolution is not reached and the FWS, SHPO/THPO, or ACHP determines that further
consultation will not be productive, consultation may be terminated. Any party that terminates
consultation must notify the other consulting parties and provide reasons in writing. Following is
a brief summary of the responsibilities of each party. Details on this process are found at 36 CFR
800.7.


If the FWS terminates consultation, the Director, the Assistant Secretary, or other officer
designated by the Assistant Secretary, will request that the ACHP comment as required
by 36 CFR 800.7(c). The ACHP will provide the public with an opportunity to
participate. The FWS will take into account the ACHP’s comments in reaching a final
decision on the undertaking. We must document its final decision through a summary
containing the rationale for the decision and evidence of consideration of the ACHP’s
comments, and submit the summary to the ACHP before we issue an incidental take
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




permit. We must submit a copy of the summary to all consulting parties and notify the
public, making the record available for public inspection.
If the SHPO terminates consultation, the FWS and the ACHP may execute an MOA
without the SHPO’s involvement.
If the responsibilities of the SHPO have been transferred to a THPO and the THPO
terminates consultation regarding an undertaking occurring on or affecting historic
properties on its tribal lands, the THPO will request that the ACHP comment as described
in 36 CFR 800.7(c).
If the ACHP terminates consultation, it will notify the FWS and all consulting parties and
comment as required by 36 CFR 800.7(c).

The ACHP may also comment and sign on an undertaking for which an MOA will be executed.
SECTION B: The Roles of the Section 106 Participants
1. Federal Agency
It is the Federal agency’s responsibility to initiate, manage, and conclude section 106
consultation by:






engaging in consultation;
determining the extent of the Federal undertaking;
defining the project’s APE;
identifying historic properties within the project’s APE, if such properties exist; and
assessing the effect(s) the project may have on any historic properties in the APE.
2. The State Historic Preservation Office

There are SHPOs in every State; they were created by the NHPA. The mission of the SHPO is to
preserve and enhance the State’s irreplaceable historic heritage as a matter of public interest. The
SHPO is:





a mandatory consulting party in the section 106 review process;
responsible for other programs in addition to section 106 review;
not required to conduct research, identify historic properties, or determine project effects
related to section 106 projects on behalf of a Federal agency; and
required to respond, either with concurrence or non-concurrence, to a Federal agency’s
adequately documented finding of effect. The SHPO is not a regulatory agency and does
not have the authority to either clear or authorize federally funded, licensed, or permitted
projects.

The SHPO:




does not have a complete list of all historic properties within the State,
cannot conduct site visits for every project, and
cannot stop projects.

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3. Federally Recognized Tribes
Federal agencies must consult with federally recognized tribes on a government-to-government
basis (e.g., initial letter of consultation early in the process). Phone calls or meetings usually
follow the letter. We encourage communication with tribes throughout the process.
4. Other Consulting Parties
The section 106 regulations state that Federal agencies, or others they’ve delegated authority to,
must actively consult with specific individuals and organizations throughout the section 106
review process. A consulting party is defined as: “individuals and organizations with a
demonstrated interest in the project due to the nature of their legal and economic relation to the
undertaking or affected properties, or their concern with the undertaking’s effect on historic
properties” [36 CFR 800.2(c)(5)].
A summary of the parties with whom we must consult include:






SHPO;
THPO, if applicable;
federally recognized tribes, if applicable;
local units of government if the project may affect historic properties within their
jurisdiction; and
applicants for Federal funds, licenses, or permits.

SECTION C: Coordinating Section 106 and the National Environmental Policy Act
Both NEPA and the section 106 processes are intended as analytical tools so that issues
concerning both the natural and built environments receive reasonable and fair consideration.
These review processes are performed in the project planning stage, when adverse impacts to the
environment can still be avoided or mitigated. It is important to note that while the NHPA and
NEPA processes may be somewhat similar, they are separate and distinct laws (see Figure 1 for
timing of NHPA compliance with respect to NEPA).
The information submitted for a NEPA review will not suffice for a section 106 review in most
cases. Section 106 should be completed first and then be addressed in the NEPA document.
However, this may not always be feasible as some steps in the section 106 process may lag
behind the NEPA analysis. Keep in mind, a project that is categorically excluded under NEPA is
not exempt from section 106.
Historic properties are often a part of the affected environment included for analysis in an
Environmental Assessment (EA) or Environmental Impact Statement (EIS). One common
strategy is to include historic properties in the NEPA process by ensuring compliance with the
NHPA and triggering NHPA review; again, by voluntarily adopting measures suggested to
address adverse effects may decrease the needed level of NEPA analysis.

A-8

Scoping for NEPA is a valuable and practical way to gather information on historic properties in
a given project area, as it is for biological resources. A template for combining NEPA and NHPA
consultation is provided in the HCP Handbook Toolbox. In 2013, the Council on Environmental
Quality and ACHP developed a handbook for integrating NHPA and NEPA.
Coordinating the public process required under NHPA with the NEPA public participation
requirement is addressed in 36 CFR 800.8. Although the regulations allow for a substitution of
the NEPA process for NHPA, this has not been done as no regulations have been developed to
allow it.
Figure 1: Coordinating NEPA and Section 106
NEPA

NHPA Section 106

Does undertaking have potential
to affect cultural resources? Yes?

Categorize as CE, EA or EIS

Assess information needs.
Define Area of Potential Effect;
Determine scope of identification

Scope NEPA Analysis

Identification, Evaluation and
Agency Effect determination

NEPA Analysis; Draft EA or EIS

Review and Consultation on
Effect; Resolution of Adverse
Effect

Public, Tribal and Agency review
of Drafts

MOA, ACHP Comment or
Final Effect Determination

Final NEPA Document
(CX, EA, EIS)

Agency Decision

Implementation

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SECTION D: Definitions
Advisory Council on Historic Preservation (ACHP): an independent Federal agency that
advises the President and Congress on historic preservation issues and administers the provisions
of section 106 of the National Historic Preservation Act.
Agency Official: the chief official of the Federal agency responsible for all aspects of the
agency’s actions. If a State, local, or tribal government has assumed or has been delegated
responsibility for section 106 compliance, the head of that unit of government is considered the
head of the agency.
Area of Potential Effects (APE): the geographic area, or areas, within which an undertaking or
project may directly or indirectly cause changes in the character or use of historic properties or
historical resources, should any such resources be present.
Cultural Resource: is a broad category that describes a wide variety of resources, including
archaeological sites, isolated artifacts, features, records, manuscripts, historical sites, and
traditional cultural properties. Cultural resources may become historic properties as defined
under section 106 if they meet the definitions of a historic property.
Effect: in Federal law, an adverse effect from an undertaking may alter characteristics of the
historic property that qualify the property for inclusion in the National Register. For the purpose
of determining effect, alteration to the property’s location, design, setting, materials,
workmanship, feeling, association, or use may be relevant, depending on a property's significant
characteristics, and should be considered.
Historic Property: means any prehistoric or historic district, site, building, structure, or object
included in, or eligible for inclusion in, the National Register of Historic Places maintained by
the Secretary of Interior. This term includes properties of traditional religious and cultural
importance to a tribe or Native Hawaiian organization and that meet the National Register
criteria.
National Register Criteria: A property may be considered eligible for the National Register of
Historic Places if it meets one or more of the following criteria:
A. It is associated with events that have made a significant contribution to the broad patterns of
history and cultural heritage.
B. It is associated with the lives of people important in our past.
C. It embodies the distinctive characteristics of a type, period, region, or method of construction,
represents the work of an important creative individual, or possesses high artistic values.
D. It has yielded, or may be likely to yield, information important in prehistory or history.
Qualified Archaeologist: a professional archaeologist meeting the Secretary of the Interior’s
Professional Qualifications Standards (43 FR 44738-9).

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Regional Tribal Liaison: is the point of contact in the FWS for tribal issues. This person, if
available, may also be part of section 106 consultations, but the position is not required under
section 106 or its regulations.
Section 106: the section of the National Historic Preservation Act that requires Federal agencies
to take into account the effects of their undertakings on historic properties and afford the
Advisory Council on Historic Preservation an opportunity to comment on such undertakings. For
more information on the section 106 process see the HCP Handbook Toolbox.
State Historic Preservation Officer (SHPO): head of the Office of Historic Preservation in a
particular State. This is the appointed official in each State and territory charged with
administering the national historic preservation program, as required by the National Historic
Preservation Act.
Undertaking: as established by section 301(7) of the National Historic Preservation Act, a
project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of
a Federal agency, including those:





carried out by or on behalf of the agency;
carried out with Federal financial assistance;
requiring a Federal permit, license, or approval; and
subject to State or local regulation administered by a party to whom a Federal agency
delegated the project/activity.

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Appendix B
Special Considerations for Including Use of Pesticides
in Habitat Conservation Plans (HCP)
The Environmental Protection Agency (EPA) authorizes the use of pesticides through the
registration and labeling requirements of the Federal Insecticide, Fungicide, and Rodenticide Act
(see the HCP Handbook Toolbox). EPA is required to conduct Endangered Species Act (ESA)
section 7 consultation (see the HCP Handbook Toolbox) with the U.S. Fish and Wildlife Service
and National Marine Fisheries Service (FWS, NMFS, or Services) on registration of any
pesticide that may affect listed species or their designated critical habitat. If the effects from
potential uses of the pesticide according to its label rise to the level of take, the incidental take
statement in the resulting section 7 biological opinion would exempt the prohibition on the
incidental take from use of that pesticide, as long as those uses would not jeopardize the species.
For pesticides that undergo a section 7 consultation, covering such take in an incidental take
permit for an HCP is unnecessary. In addition, an HCP would not need to address the use of a
pesticide if the Services concurred with EPA that the pesticide was not likely to adversely affect
listed species. However, many pesticides did not undergo section 7 consultation at the time of
registration and EPA’s process to complete these consultations is ongoing. As a result, take from
use of those pesticides that have not gone through consultation is not exempted by section 7.
If an applicant requests that the incidental take permit authorize take from the use of a pesticide,
check the FWS’s Tracking and Integrated Logging System (TAILS) to determine whether EPA
has completed section 7 consultation on registration of that pesticide. EPA’s Endangered Species
Protection Program Web site (see the HCP Handbook Toolbox) contains completed biological
opinions and endangered species bulletins for certain pesticides. However, since a large number
of pesticides have not undergone consultation, these bulletins (or lack of a bulletin for a
pesticide) are not an accurate indicator of whether consultation has been completed. However,
the Web site may provide information on when consultation for some pesticides is anticipated to
be completed. The Services’ Regional environmental contaminants staff can also help you
determine whether a consultation has been completed.
If an applicant prefers to include the pesticide in the HCP instead of waiting for EPA to complete
section 7 consultation on it or rely upon EPA’s consultation for coverage, be sure to tell them
that the HCP and the Services’ biological opinion and environmental assessment (EA) or
environmental impact statement (EIS) must include an adequate analysis of the effects from the
proposed pesticide use. We may authorize associated take on the incidental take permit only after
we complete all our necessary effects analyses in our biological opinion, EA or EIS, and set of
findings for permit issuance. Also advise them that doing so could add substantial time to the
HCP and permitting process.
Always place priority on developing avoidance and minimization measures in the HCP to reduce
the exposure to the covered species from pesticide use. Advise the applicant that this will be the
most effective way to reduce time and effort when analyzing and offsetting the effects of an
activity. Work closely with the Services’ environmental contaminants staff in the field and
Regional offices for guidance on effective avoidance and minimization measures.

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Guidance for Analyzing Effects of Pesticide Use
The primary resources for analyzing effects from pesticide use should be field and Regional
environmental contaminants staff. They can provide technical expertise and direct you to other
resources to help with the analyses.
Describe the pesticide to be used
Describe the active ingredient to be used (e.g., glyphosate), as well as the specific formulated
®
product (e.g., Roundup Pro). Some products contain multiple active ingredients. Formulated
products also contain other chemicals in addition to the active ingredient that may affect the
flow, efficacy, adherence, or other characteristics of the pesticide, and these chemicals may have
additional effects to the environment that we must consider. If the pesticide requires or the label
recommends users add other ingredients, such as a surfactant, name the specific ingredient(s) to
be added. State if more than one pesticide will be applied at the same time or mixed together for
use (i.e., a “tank mix”). Multiple pesticides mixed together may produce effects that each would
have not produced on its own (i.e., additivity, synergy, or in rare circumstances, antagonism).
Describe how the pesticide will be used
Be as specific as possible to provide the necessary information to accurately model the fate and
transport of the pesticide and reduce the need to account for effects that are beyond the intended
use. Include the application rate (pounds active ingredient/per acre applied), application method
and equipment, intended frequency of application, time of year, and time of day. Describe any
no-application buffers, no-spray zones, or other minimization measures that will be used, and
whether these measures are required or recommended by the label.
Describe the potential exposure of the pesticide in the environment
The exposure analysis should consider the mobility, persistence, volatility, and potential for
bioaccumulation of the pesticide product and any other ingredients that will be applied.
Depending on these fate characteristics, the affected area may not just be the application area,
but could be anywhere the chemicals might reach as a result of drift, runoff, leaching to
groundwater, or atmospheric transport. For bioaccumulative chemicals, transport may occur
through biota that move off site after feeding in the application area. Calculate the estimated
environmental concentration using the appropriate terrestrial or aquatic models (many currentuse models can be found on the EPA Web site (see the HCP Handbook Toolbox).
Identify which species and habitats of concern are likely to be affected
For the HCP, use a process to break down the proposed action into components for analysis (see
chapter 5.3 of the HCP Handbook) to identify which covered species and habitats may be
exposed to and affected by proposed pesticide use. Consider migratory species or other species
that may only seasonally use the area where the pesticide would be applied. For the NEPA
analysis, use available tools to identify sensitive natural resources and other factors of the human
environment that use of the pesticide may impact.
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Describe the potential effects of the pesticide in the environment
The effects analysis should consider all relevant toxicological information on the active
ingredient and its degradates, the formulated product, and any other chemicals, such as
surfactants or other pesticide products, that will be mixed with or applied near the product under
consideration.
For direct effects, describe the toxicity data regarding mortality, as well as any reproductive,
growth, behavioral, and other sublethal effects to fitness of individuals. Include information from
EPA’s assessment, EPA’s ECOTOX database (see the HCP Handbook Toolbox), and the open
literature. EPA requires certain toxicity data for the registration of a pesticide, but the availability
of further information varies based on the research performed since the pesticide’s registration. It
is often necessary to extrapolate toxicity data from one or more standard test species to the
species that you are evaluating. Compare the concentrations at which effects have been noted
with the estimated environmental concentration predicted by drift and runoff models based on
the label use rate and application technology. If effects are likely to occur, describe the duration
and magnitude to the extent possible, and the number of individuals that will likely be affected.
For chemicals that accumulate in tissue, consider food chain effects. For indirect effects, use the
same toxicity information to assess effects to the habitat of the species of concern, including but
not limited to reduction in prey, reduction in cover, and changes in community composition.
Consider any available information on the toxicity of mixtures that may be concurrently applied
(tank mixtures or formulated product mixtures) or that may result from adding a new chemical to
those that may already be present in the area of concern (environmental mixtures). In the absence
of information indicating synergy or antagonism, assume the effects of any two chemicals on an
individual to be additive.
Describe the potential effects of the pesticide to individuals and habitat characteristics
For covered species and designated critical habitats that may be affected, determine whether the
direct and indirect effects described above are: (1) insignificant (effects that can’t be
meaningfully measured, detected, or evaluated), (2) discountable (extremely unlikely to occur),
or (3) completely beneficial (positive effects without any adverse effects). For designated critical
habitats, consider effects to all physical and biological features (formerly called ‘primary
constituent elements’) and determine whether the effects are insignificant, discountable, or
completely beneficial.
If you determine that effects to covered species would not be insignificant, discountable, or
completely beneficial, describe the various types of effects you anticipate are reasonably likely to
occur. In the analysis, include any potential measures to avoid or reduce the severity of these
effects. Determine what the remaining impacts would be to develop appropriate mitigation
measures in the HCP.

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Pesticide Use and No Surprises in HCPs
Keep in mind that, in the future, EPA may change required label restrictions based on new
information and section 7 consultation on the pesticide in question. Because authorized take on
the permit is valid only for otherwise lawful activities, the permittee would need to comply with
any changed label instructions, even if an approved HCP is based on an out-of-date label. Advise
the applicant that should such an event occur, the No Surprises rule does not apply even if the
new label is more restrictive because label compliance is legally required. The HCP’s changed
circumstances section should identify this possibility along with contingency responses for
potential adjustment of conservation measures.

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Appendix C
Required Habitat Conservation Plan (HCP) Elements and Recommended HCP Outline
Required HCP Elements
During the habitat conservation plan (HCP) development phase, the project applicant prepares a
plan that integrates the proposed project or activity with the protection of listed species. An
HCP submitted in support of an incidental take permit application must be in accordance with
the ESA [Section 10(a)(2)(A)] and Federal Regulation [50 CFR 17.22(b)(1), 17.32(b)(1), and
222.22] (see the HCP Handbook Toolbox).
. The plan must include the following information:
● impacts likely to result from the proposed taking of the species for which permit coverage
is requested;
● measures that will be implemented to monitor, minimize, and mitigate impacts; funding
that will be made available to undertake such measures; and procedures to deal with
unforeseen circumstances;
● the alternative actions to incidental taking the applicant has considered and the reasons
the applicant rejected those alternatives; and
● additional measures the Service may require as necessary or appropriate for purposes of
the plan.
Based on a long history of providing technical assistance to applicants and reviewing HCPs in
the context of making an incidental take permit decision, we provide the following
recommended HCP format. Applicants can facilitate our review of the HCP by treating the
issuance criteria as a set of questions that they answer in the HCP. Note that you should check
with your Regional HCP Coordinator on sections labeled optional or as needed. A more detailed
template document is provided in the HCP Handbook Toolbox).
Recommended HCP Outline
Title Page
Executive Summary or Summary Sheet
Chapter 1.0 Introduction
1.1 Overview and Background
1.2 Purpose and Need (Optional)
1.3 Plan Area / Permit Area
1.4 Permit Duration
1.5 Alternatives to the Taking
1.6 Coordination with Federal and State Agencies
1.7 Permit Structure (As Needed)
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1.8 Summary of Relevant Laws and/or Regulations (Optional)
1.8.1
Federal Endangered Species Act (use Services provided language)
1.8.2
National Environmental Policy Act (use Services provided language)
1.8.3
National Historic Preservation Act
1.8.4
Relevant State Laws and Regulations
Chapter 2.0 Project Description and Covered Activities
2.1
Project Description
2.2
Covered Activities
Chapter 3.0 Covered Species
3.1
Covered Species (section for each covered species)
3.1.1 Status and Distribution
3.1.2 Habitat Characteristics and Use
3.1.3 Occurrence in the Project Area
3.2
Covered Plant Species (As Needed)
3.2.1 Status and Distribution
3.2.2 Habitat Characteristics and Use
3.2.3 Occurrence in the Project Area
3.3
Species in Plan Area That Don’t Need Coverage and Why
3.3.1 Status and Distribution
3.3.2 Habitat Characteristics and Use
3.3.3 Occurrence in the Project Area
3.3.4 How take will be avoided
Chapter 4.0 Environmental Setting and Biological Resources
4.1 Environmental Setting
4.1.1 Climate
4.1.2 Topography/Geology
4.1.3 Hydrology/Streams, Rivers, and Drainages
4.1.4 Water Quality/Water Quantity
4.1.5 Existing Land Use
4.2 Biological Resources: Wildlife, Fish. and Vegetation
4.2.1 Wildlife
4.2.2 Vegetation
Chapter 5.0 Potential Biological Impacts and Take Assessment
5.1 Direct and Indirect Impacts
5.2 Anticipated Take of Each Covered Species
5.3 Anticipated Impacts to Covered Plant Species (As Needed)
5.4 Anticipated Impacts of Take on Critical Habitat (As Needed)
5.5 Anticipated Impacts of the Taking
Chapter 6.0 Conservation Program
6.1 Biological Goals
6.2 Biological Objectives
6.3 Measures to Avoid and Minimize Take
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6.4 Measures to Mitigate the Unavoidable Take
6.5 Monitoring
6.5.1 Biological/Effectiveness Monitoring
6.5.2 Compliance Monitoring
6.6 Adaptive Management Strategy (As Needed)
6.7 Reporting (check with the Regional HCP Coordinator for the Required Format)
6.6.1 Project Status and Impacts (e.g., completed stages)
6.6.2 Take Tracking
6.6.3 Avoidance, Minimization, and Monitoring
6.6.4 Mitigation
6.6.5 Changed circumstances
6.6.6 Funding
6.6.7 Other HCP Measures (e.g., Amendments, Adaptive Management, etc.)
6.6.8 Other Measures as Required by Director (As Needed)
Chapter 7.0 Changed and Unforeseen Circumstances
7.1 Changed Circumstances
7.2 Unforeseen Circumstances
Chapter 8.0 Funding
8.1 Costs and Budget for the Conservation Program and Plan Implementation
8.2 Funding Sources
8.3 Funding Mechanisms
8.4 Funding Assurances
Chapter 9.0 Permit/HCP Administration (Optional)
9.1 Amendments (use Services provided language)
9.2 Permit Renewal (use Services provided language)
9.3 Permit Transfer (use Services provided language)
Chapter 10.0 References
10.1 Literature Cited
10.2 Personal Communications
10.3 List of Preparers
Appendices
Appendix A: Maps/Figures
Appendix B: Data Management Plan
Appendix C: Covered Lands (legal description)
Appendix D: Background Reports/Supporting Documents
Appendix E: Implementing Agreement (Optional)
Appendix F: Conservation Easement (As Needed)
Appendix G: Other Project Specific Materials
Tables
Table XX. Summary of Impacts to Covered Species by Covered Activities
Table XX. Summary of Minimization and Mitigation Measures and Corresponding
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Biological Goals and Objectives Based on the Level of Impacts Resulting From
Covered Activities
Table XX. Changed Circumstances and Permittee Response
Table XX. Costs/Budget for HCP Implementation and Conservation Program

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GLOSSARY
_____________________________________________________________________________
Origin: When a term’s definition is identical in multiple documents the document with the
highest authority is cited. Authority ranking is as follows: statute, regulations, policy, guidance,
working definition. If a word or phrase is not a defined term in statutory, regulatory, policy, or
guidance documents, the glossary’s definition or explanation is noted as a “working definition”.
In these cases the compiler composed a working definition by drawing contextual quotes and
information from the statutes and regulations or by using various non-statutory and nonregulatory sources (e.g., dictionaries, Service websites, etc.) to construct a commonly held
meaning for the phrase or word. Definitions based on statute, regulations, policy or guidance
were current as of the date of publication of this Handbook, but users are encouraged to verify
that those definitions remain current.
NEPA definitions are noted by “(NEPA definition)”, where applicable, to distinguish
between NEPA and ESA definitions.
_____________________________________________________________________________
action - All discretionary activities or programs of any kind authorized, funded, or carried out, in
whole or in part, by Federal agencies in the United States or upon the high seas. Examples
include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b)
the promulgation of regulations;(c) the granting of licenses, contracts, leases, easements, rightsof-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the
land, water, or air.
Origin: 50 CFR 402.02, FWS and NMFS
action area - All areas to be affected directly or indirectly by the Federal action and not merely
the immediate area involved in the action.
Origin: 50 CFR 402.02, FWS and NMFS
adaptive management - A method for examining alternative strategies for meeting measurable
biological goals and objectives, and then, if necessary, adjusting future conservation
management actions according to what is learned.
Origin: 65 FR 35252, Five-Point Policy
adequately covered - With respect to ESA-listed species, a proposed conservation plan has
satisfied the permit issuance criteria under section 10(a)(2)(B) of the ESA for the species covered
by the plan, and, with respect to unlisted species, that a proposed conservation plan has satisfied
the permit issuance criteria under section 10(a)(2)(B) of the ESA that would otherwise apply if
the unlisted species covered by the plan were actually listed. For the Services to list a species on
the section 10(a)(1)(B) permit, it must be addressed in the conservation plan.
Origin: 50 CFR 17.3, FWS; 50 CFR 222.102, NMFS
administrative record - The records assembled for a court action that a judge reviews to
determine if a final agency decision is legally sufficient and supportable. Also referred to as the
agency record or decision file.
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Origin: Working definition
affecting - (NEPA definition) - Will or may have an effect on.
Origin: 50 CFR 1508.3, CEQ
affected environment - (NEPA definition) - The NEPA analysis document shall succinctly
describe the environment of the area(s) to be affected or created by the alternatives under
consideration. The descriptions shall be no longer than is necessary to understand the effects of
the alternatives. Data and analyses in a statement shall be commensurate with the importance of
the impact, with less important material summarized, consolidated, or simply referenced.
Agencies shall avoid useless bulk in statements and shall concentrate effort and attention on
important issues. Verbose descriptions of the affected environment are themselves no measure of
the adequacy of a NEPA analysis document.
Origin: 40 CFR 1502.15, CEQ
alternatives including the proposed action - (NEPA definition) - Refers to alternatives,
including the no action alternative and the proposed action, that are considered in detail and
described within a NEPA document (EA or EIS). The alternatives section of the NEPA
document shall devote substantial and objective treatment to each of these alternatives so that
reviewers may evaluate their comparative merits.
Origin: 40 CFR 1502.14, CEQ
alternative courses of action - Within the context of ESA section 7, all alternatives not limited
to original project objectives and agency jurisdiction.
Origin: ESA section 3(1); ESA section 7
alternatives to the taking - A required portion of an HCP which describes “what alternative
actions to such taking the applicant considered and the reasons why such alternatives are not
being utilized.” This discussion should address any other actions that the applicant could have
chosen that would have avoided, and thus, avoid the need for an incidental take permit, or
significantly reduced the impact of the taking of the listed entity (e.g., species, distinct
population segment, etc.).
Origin: ESA §10(a)(2)(A)(iii); FWS 2012
amendment - Where circumstances have changed so that a permittee desires to have any
condition of his permit modified, such permittee must submit a full written justification and
supporting information. The Service reserves the right to amend any permit for just cause at any
time during its term, upon written finding of necessity.
Origin: 50 CFR 13.23, FWS; 50 CFR 222.203, NMFS
Additional information: See also administrative amendment and formal amendment.
analysis area - (NEPA definition) - The geographic area within which impacts to particular
resource are analyzed. The analysis area or geographic area analyzed will be different for
different resources. For example the species range and the particular recovery unit where the
project is located may be the most appropriate analysis areas for a listed species; a watershed
may be the hydrologic analysis area; and a county may be the socioeconomic analysis area.
Sometimes the analysis boundary for a particular resource will change with different alternatives.
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While analysis requirements differ, the “analysis area” term can apply equally well to analyses
conducted under section 7 and section 10 of ESA as well as NEPA.
Origin: Working definition adapted from NPS Director’s Order 12 (NEPA guidance) found at
http://www.nature.nps.gov/protectingrestoring/do12site/02_Ovrvu/028_affected_env.htm
accessed 11/10/14.
anticipated/allowable/authorized - In incidental take statements, the Services determine the
amount or extent of incidental take "anticipated" (expected) due to the proposed action or an
action modified by reasonable and prudent alternatives. When writing incidental take statements,
use only the phrase "anticipated" rather than "allowable" or "authorized," as the Services do not
allow or authorize (formally permit) incidental take under section 7.
Origin: FWS and NMFS 1998
Additional Information: See FWS and NMFS 1998 pp. 4-45 to 4-49.
applicant - Refers to any person, as defined in section 3(13) of the ESA, who requires formal
approval or authorization from a Federal agency as a prerequisite to conducting an action.
Origin: 50 CFR 402.02, FWS and NMFS
Additional information: See also qualified applicant.
application - A complete section 10 application consists of at least the following: the application
form, fee (if required), conservation plan or agreement, and draft NEPA compliance document as
drafted by the Service(s).
Origin: working definition
assurances - With the 1982 Amendments to the ESA, Congress envisioned and allowed the
Federal government to provide regulatory assurances to non-Federal property owners through the
section 10 incidental take permit process. The Services believed that non-Federal property
owners should be provided economic and regulatory certainty regarding the overall cost of
species conservation and mitigation, provided that the affected species were adequately covered,
and the permittee was properly implementing the HCP and complying with the terms and
conditions of the HCP, permit, and Implementing Agreement (IA), if used.
Origin: FWS and NMFS 2000
authorized take - Take that is formally permitted under section 10 of the ESA.
Origin: Working definition
Avian and Bat Protection Plan (ABPP) or Bird and Bat Conservation Strategy (BBCS) - A
document that describes a program to reduce risks to birds and bats from electric utility
equipment and facilities.
Origin: Working definition
Additional information: Most often associated with wind energy.
baseline conditions - Within the context of HCPs or SHAs, these are population estimates and
distribution and/or habitat characteristics and determined area of the enrolled property that
sustain seasonal or permanent use by the covered species at the time an agreement is executed
between the Services and the property owner.
Origin: FWS 2013
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Additional information: See environmental baseline, which is a different definition within the
context of ESA section 7.
baseline monitoring/conditions - Monitoring done or conditions existing before implementation
of a specific project, in order to establish historical and/or current conditions against which
progress can be measured.
Origin: FWS 2011
best available scientific and commercial data - This phrase is not defined, but the Services
have a joint policy on its use and consideration. “…[T]o assure the quality of the biological,
ecological, and other information used in the implementation of the Act, it is the policy of the
Services to: (1) evaluate all scientific and other information used to ensure that it is reliable,
credible, and represents the best scientific and commercial data available; (2) gather and
impartially evaluate biological, ecological, and other information disputing official positions,
decisions, and actions proposed or taken by the Services; (3) document their evaluation of
comprehensive, technical information regarding the status and habitat requirements for a species
throughout its range, whether it supports or does not support a position being proposed as an
official agency position; (4) use primary and original sources of information as the basis for
recommendations; (5) retain these sources referenced in the official document as part of the
administrative record supporting an action; (6) collect, evaluate, and complete all reviews of
biological, ecological, and other relevant information within the schedules established by the
Act, appropriate regulations, and applicable policies; and (7) require management-level review
of documents developed and drafted by Service biologists to verify and assure the quality of the
science used to establish official positions, decisions, and actions taken by the Services during
their implementation of the Act.”
Origin: 1994 Federal Register notice July 1, 1994 (Volume 59, No. 126) p. 34271.
Additional Information: This phrase does not appear in this form in the ESA. The ESA
structures the phrase “best scientific and commercial data available”. ESA, Section 4(b).
best management practices - Recommended measures that, if implemented as part of a
proposed action, would, to the extent practicable, avoid, minimize, and mitigate for adverse
effects of that proposed action on the relevant species.
Origin: FWS 2011b
biological assessment - In the context of section 7, “…information prepared by, or under the
direction of, a Federal agency concerning listed and proposed species and designated and
proposed critical habitat that may be present in the action area and the evaluation [of] potential
effects of the action on such species and habitat.”
Origin: 50 CFR 402.02, FWS and NMFS
Additional information: The phrase first appears in the ESA, but is defined in the regulations.
Biological assessments must be prepared for "major construction activities." See 50 CFR 402.02.
The outcome of this biological assessment determines whether formal consultation or a
conference is necessary. 50 CFR 402.02 and 402.12. Biological Assessments are required for
projects seeking exemption from section 7(a)(2) of the ESA through the Endangered Species
Committee (ESA, section 7(c)(2)).

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biological goal - Habitat and wildlife are closely intertwined. Managing wildlife may include
habitat manipulation and direct manipulation of populations. Thus, where possible, biological
goals should include both habitat and wildlife elements. Each biological goal should contain four
elements: (1) a key subject of concern (e.g., a particular species or guild, a biotic community, or
a habitat type); (2) the attribute of interest for that subject (e.g., population size, physical area
covered, species composition); (3) a conceptual target or condition for the attribute (e.g., a
number, period of time, natural); and (4) an action or effort (e.g., restore, provide) that we will
make relative to the target.
Origin: FWS 1997
Additional Information: See also goal.
biological objective - A concise statement of what we want to achieve, how much we want to
achieve, when and where we want to achieve it, and who is responsible for the work. Objectives
derive from goals and provide the basis for determining strategies, monitoring refuge
accomplishments, and evaluating the success of strategies.
Origin: FWS 1997
Additional information: See also objective.
Biological Opinion - The document that states the opinion of the Service as to whether or not
the Federal action is likely to jeopardize the continued existence of listed species or result in the
destruction or adverse modification of critical habitat.
Origin: 50 CFR 402.02, FWS and NMFS
Additional information: The biological opinion shall include: (1) a summary of the information
on which the opinion is based; (2) a detailed discussion of the effects of the action on listed
species or designated critical habitat; and (3) the Service's opinion on whether the action is likely
to jeopardize the continued existence of a listed species or result in the destruction or adverse
modification of critical habitat (a “no jeopardy” biological opinion). A “jeopardy” biological
opinion shall include reasonable and prudent alternatives, if any. If the Service is unable to
develop such alternatives, it will indicate that the best of its knowledge there are no reasonable
and prudent alternatives. 50 CFR 402.14(h).
Bird and Bat Conservation Strategy (BBCS) or Avian and Bat Protection Plan (ABPP) - A
document that describes a program to reduce risks to birds and bats from electric utility
equipment and facilities.
Origin: Working definition
Additional information: Most often associated with wind energy. See also definition for Avian
and Bat Protection Plan.
Candidate Conservation Agreement (CCA) - An Agreement signed by either Service, or both
Services jointly, and other Federal or State agencies, local governments, tribes, businesses,
organizations, or non-Federal citizens, that identifies specific conservation measures that the
participants will voluntarily undertake to conserve the covered species.
Origin: Working definition
Additional Information: Quote taken from policy on Candidate Conservation Agreements with
Assurances published in the Federal Register, June 17, 1999 (Volume 64, No. 116) p. 32734.

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Candidate Conservation Agreement with Assurances (CCAA) - Candidate Conservation
Agreements with Assurances are voluntary conservation agreements between the Service and
one or more public or private parties. The Service works with its partners to identify threats to
candidate species, plan the measures needed to address the threats and conserve these species,
identify willing landowners, develop agreements, and design and implement conservation
measures and monitor their effectiveness. Assurances provided to a non- Federal property owner
in a Candidate Conservation Agreement with Assurances that conservation measures and land,
water, or resource use restrictions in addition to the measures and restrictions described in the
Agreement will not be imposed should the covered species become listed in the future.
Candidate Conservation Assurances will be authorized by an Enhancement of Survival Permit.
Such assurances may apply to a whole parcel of land, or a portion, as identified in the
Agreement.
Origin: Working definition
Additional Information: Quote taken from policy on Candidate Conservation Agreements with
Assurances published in the Federal Register, June 17, 199 (Volume 64, No. 116) p. 32734. The
assurances included in these agreements provide greater certainty (and most include a section
10(a)(1)(A) permit for incidental take) if the species becomes listed. Assurances cannot be
extended to federal agencies.
candidate species - For those species under the jurisdiction of FWS, "...those species for which
the Service has on file sufficient information on biological vulnerability and threat(s) to support
proposals to the list them as endangered or threatened species. Proposal rules have not yet been
issued because this action is precluded..." For those species under the jurisdiction of NMFS,
candidate species are any species that are undergoing a status review that NMFS has announced
in a Federal Register notice, whether or not they are the subject of a petition.
Origin: 61 FR 7598, FWS; 71 FR 61022, NMFS
categorical exclusion (CatEx) - (NEPA definition) - A category of actions which do not
individually or cumulatively have a significant effect on the human environment and which have
been found to have no such effect in procedure adopted by a Federal agency in implementations
of these regulations (Sec. 1507.3 and for which, therefore, neither an environmental assessment
nor an environmental impact statement is required.
Origin: 40 CFR 1508.4, CEQ
certificate of inclusion - Certificates of inclusion are template instruments created under an
HCP for the purpose of conveying take authority to enrollees. Additionally, specific to NMFS,
any individual who wishes to conduct an activity covered by a NMFS general incidental take
permit must apply to the Assistant Administrator for a Certificate of Inclusion.
Origin: Working definition and 50 CFR 222.307(f), NMFS
changed circumstances - Changes in circumstances affecting a species or geographic area
covered by a conservation plan or conservation agreement that can reasonably be anticipated by
plan or agreement developers and the Service(s) and that can be planned for (e.g., the listing of
new species, or a fire or other natural catastrophic event in areas prone to such events).
Origin: Working definition

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conference and conference opinion - Noun form of the word confer from section 7(a)(4) of the
ESA. Defined in the regulations as “a process which involves informal discussions between a
Federal agency and the Service under section 7(a)(4) of the ESA regarding the impact of an
action on proposed species or proposed critical habitat and recommendations to minimize or
avoid the adverse effects.” 50 CFR 402.02. Discussed further in the regulations at 50 CFR
402.10 “Federal agencies shall confer with the Service on any action which is likely to
jeopardize the continued existence of any proposed species or result in the destruction or adverse
modification of proposed critical habitat. The conference is designed to assist the Federal agency
and any applicant in identifying and resolving potential conflicts at an early stage in the planning
process.” Conferences are concluded with either a Conference Report or (if requested) a
Conference Opinion. Conference Opinions may be adopted as a biological opinion after listing,
under certain conditions (402.10). Many agencies voluntarily request to conference on projects
that they determine “may affect” (as opposed to the likely to jeopardize) proposed species,
critical habitat (402.10) or candidate species. Adoption of the conference opinion should be
requested in writing. Because of the wide variety of actions taken by the Service and action
agency relative to a “voluntary” conference, the process and terminology can become confusing.
Origin: 50 CFR 402.02 and 402.10, FWS and NMFS
Additional information: A conference opinion uses the same format as a biological opinion and
may be adopted as a biological opinion after listing, under certain conditions (402.10). An
incidental take statement may be included, but is not in effect until the species is listed. Adoption
of the conference opinion should be requested in writing. See discussion in Chapter 6 of FWS
and NMFS 1998.
conserve - the terms "conserve," "conserving" and "conservation" mean to use and the use of
all methods and procedures which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to [the] Act are no longer
necessary. Such methods and procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law enforcement, habitat
acquisition and maintenance, propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.”
Origin: ESA, section 3
Additional information: Also codified as 50 CFR 424.02
conservation banking - A method used to offset impacts occurring elsewhere to the same listed
species (FWS 2005). A “bank” consists of non-Federal land containing natural resource values
conserved and managed in perpetuity (FWS 2005). Conservation banking is a tool for federal
agencies, project applicants, and other entities to address the adverse effects of proposed actions
on listed and other federally-managed species, and to support the recovery of listed species and
their habitats (NMFS 2015). A conservation bank is a parcel of land containing natural resource
values the banker has conserved, restored, created and managed in perpetuity for federal or state
protected species.
Origin: USFWS 2005, NMFS 2015
conservation measures - Actions to benefit or promote the recovery of listed species that are
included by the Federal agency as an integral part of the proposed action. These actions will be
taken by the Federal agency or applicant, and serve to minimize or compensate for, project
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effects on the species under review. These may include actions taken prior to the initiation of
consultation, or actions which the Federal agency or applicant have committed to complete in a
biological assessment or similar document.
Origin: Section 7 Handbook, p. xii
conservation plan - The plan required by section 10(a)(2)(B) of the ESA that an applicant must
submit when applying for an incidental take permit. Conservation plans also are known as
‘‘habitat conservation plans’’ or ‘‘HCPs.’’ Incidental take is authorized through a section
10(a)(1)(B) permit.
Origin: 50 CFR 17.3, FWS, and 50 CFR 222.102, NMFS
Additional information: First mentioned, but not defined, in the ESA (Section 10).
conservation program - An operating conservation program includes an operating conservation
plan, the aim of which is to avoid, minimize, and compensate for impacts on covered species that
result from authorized activities, and to protect and conserve habitats that support these species.
Origin: Working definition
Additional information: See also operating conservation program.
conservation priority areas - Specific areas identified in a species conservation strategy as a
priority for that particular species.
Origin: working definition
conservation strategy [also conservation framework] - An established, consistent approach
for guiding conservation actions. Should be founded on recovery plan actions if available, or
other formal intra-Service planning, agreements, or procedures. Ideally, these take the form of
directives issued by appropriate management level governing the affected Service field stations.
For example, targeting conservation projects to reduce species habitat fragmentation.
Origin: Working definition
conserved habitat areas - Areas explicitly designated for habitat restoration, acquisition,
protection, or other conservation purposes under a conservation plan.
Origin: 50 CFR 17.3, FWS; 50 CFR 222.102, NMFS
consultation - The process required of a Federal agency under section 7 of the ESA when any
activity authorized, carried out, or conducted by that agency may affect a listed species or
designated critical habitat; consultation is with FWS or NMFS and may be either informal or
formal. See sections 7(a)(1) and 7(a)(2) of the ESA.
Origin: FWS and NMFS 1998 and working definition from FWS and NMFS 1998.
covered activities - Activities that a permittee will conduct for which take is authorized in an
ESA section 10 permit.
Origin: Working definition
covered species - Species for which incidental take is authorized in an incidental take permit and
is adequately covered in a habitat conservation plan. Could also include unlisted species that
have been adequately addressed in an HCP as though they were listed, and are therefore included
on the permit.
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Origin: Working definition
critical habitat - “(i) the specific areas within the geographical area occupied by the species, at
the time it is listed in accordance with the provisions of section 4 of the ESA, on which are found
those physical or biological features and (I) essential to the conservation of the species and (II)
which may require special management considerations or protection; and (ii) specific areas
outside the geographical area occupied by the species at the time it is listed in accordance with
the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are
essential for the conservation of the species.” In some cases not all areas occupied by a species
are designated as critical habitat.
Origin: ESA section 3
cumulative effects - (ESA Section 7 definition) - Those effects of future State or private
activities, not involving Federal activities that are reasonably certain to occur within the action
area of the Federal action subject to consultation.
Origin: 50 CFR 402.02, FWS and NMFS
Additional information: This definition applies only to section 7 analyses and should not be
confused with the use of the term Cumulative Impact in the National Environmental Policy Act
or other environmental laws.
cumulative impact - (NEPA definition) - The impact on the environment which results from the
incremental impact of the action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non-Federal) or person undertakes such
other actions. Cumulative impacts can result from individually minor but collectively significant
actions taking place over a period of time.
Origin: 40 CFR 1508.7, CEQ
Additional information: This definition applies only to NEPA analyses and should not be
confused with the use of the term Cumulative Effects in the ESA.
deconstructing the action - The process of identifying sub-activities and their consequences.
This process breaks larger action into component activities. Each sub-activity can cause different
effects.
Origin: FWS 2011b; Cole 2013
destruction or adverse modification - A direct or indirect alteration that appreciably diminishes
the value of critical habitat for the conservation of a listed species. Such alterations may include,
but are not limited to, those that alter the physical or biological features essential to the
conservation of a species or that preclude or significantly delay development of such features.
Origin: Final regulatory definition was adopted in 81 Fed. Reg. 7214 (Feb. 11, 2016).
Additional Information: This phrase and similar phrases such as Adversely Modify and
Adverse Modification can create confusion if used by action agencies or the Service to describe
situations where critical habitat is destroyed or modified by a project, resulting in an adverse
effect determination. That situation is at an action area scale and is rarely the same scale at which
the determination of Destruction or Adverse Modification is made by the Services. Simplistically
and broadly, Destruction or Adverse Modification can be thought of as parallel in scale to a
Jeopardy Analysis.
development or land use area - Those portions of the conservation plan area that are
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proposed for development or land use or are anticipated to be developed or utilized.
Origin: USFWS 1996
direct control - (ESA definition) - Refers to any person or entity that “except as otherwise stated
on the face of the permit, any person who is under the direct control of the permittee, or who is
employed by or under contract to the permittee for purposes authorized by the permit, may carry
out the activity authorized by the permit. In the case of permits issued under section 17.22(b)–(d)
or section 17.32(b)–(d) of this subchapter to a State or local governmental entity, a person is
under the direct control of the permittee where: (1) The person is under the jurisdiction of the
permittee and the permit provides that such person(s) may carry out the authorized activity; or
(2) The person has been issued a permit by the governmental entity or has executed a written
instrument with the governmental entity, pursuant to the terms of the implementing agreement.”
Origin: 50 CFR 13.25(d)-(e)(1)-(2)
direct effects - (ESA definition) - Related to the ESA, the direct or immediate effects of the
project on the species or its habitats.
Origin: FWS and NMFS 1998, p. 4-25
direct effects - (NEPA definition) - Related to NEPA, are effects caused by the action and occur
at the same time and place.
Origin: 40 CFR 1508.8, FWS and NMFS
early consultation - A process requested by a Federal agency on behalf of a prospective
applicant under section 7(a)(3) of the Act.
Origin: 50 CFR 402.02 and 402.11, FWS and NMFS
Additional information: First mentioned in the ESA, but not defined there. The resulting
consultation document is referred to as a Preliminary Biological Opinion. It can be confirmed as
a final opinion by written request. See details at section 7(a)(3) of the Act, 50 CFR 402.11, and
chapter 7 of FWS and NMFS 1998 for specific process.
effects of the action - Related to section 7 of the ESA, “…the direct and indirect effects of an
action on the species or critical habitat, together with the effects of other activities that are
interrelated or interdependent with that action that will be added to the environmental baseline.”
Origin: 50 CFR 402.02, FWS and NMFS
Additional information: Discussion on pp. 4-25 through 4-29 of FWS and NMFS 1998.
endangered species - Any species which is in danger of extinction throughout all or a significant
portion of its range other than a species of the Class Insecta determined by the Secretary to
constitute a pest whose protection under the provisions of this Act would present an
overwhelming and overriding risk to man.
Origin: ESA section 3(6); 50 CFR 424.10(e), FWS and NMFS
ESA (or Act) - the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531-1543; 87 Stat
884) (50 CFR 17.3).
enhancement of survival permit - A permit issued under section 10(a)(1)(A) of the ESA that
authorizes the permittee to incidentally take species covered in a Candidate Conservation
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Agreement with Assurances or a Safe Harbor Agreement or to take listed species for research or
recovery-related activities.
Origin: Working definition
Additional Information: Quote taken from policy on Candidate Conservation Agreements with
Assurances published in the Federal Register, June 17, 1999 (Volume 64, No. 116) p. 32734.
enrolled lands (or enrolled properties, enrolled area) - Specific lands within the agreement
area or plan area that have gone through the process of becoming enrolled under a CCAA, SHA,
or HCP and associated enhancement of survival permit or incidental take permit. This term often
used for large programmatic or expanding HCPs where the properties are being enrolled over a
period of time and there is a need to distinguish between the parts of the plan area that are
enrolled and those parts that are not yet enrolled. ECOS does use this term for HCPs as well as
CCAAs and SHAs.
Origin: Working definition and FWS 2003
Environmental Action Memorandum Statement (EAMS) or Environmental Action
Statement (EAS) - A FWS document prepared to explain the Service’s reasoning in finalizing
an action that is categorically excluded from NEPA.
Origin: FWS 2001, FWS 1996
environmental assessment (EA) - (NEPA definition) - A concise public document, prepared in
compliance with NEPA, that briefly discusses the purpose and need for an action, alternatives to
such action, and provides sufficient evidence and analysis of impacts to determine whether to
prepare an Environmental Impact Statement or Finding of No Significant Impact.
Origin: 40 CFR 1508.9, CEQ; FWS 2001, FWS 2003, FWS 1996
environmental baseline - Within the context of section 7, it is a term explained within the
regulatory definition of “Effects of the Action” as “… the past and present impacts of all Federal,
State, or private actions and other human activities in an action area, the anticipated impacts of
all proposed Federal projects in an action area that have already undergone formal or early
section 7 consultation, and the impact of State or private actions that are contemporaneous with
the consultation in process.”
Origin: 50 CFR 402.02, FWS and NMFS
Additional Information: See also baseline, which is a different definition within the context of
HCPs and other agreements, such as SHAs.
environmental consequences - (NEPA definition) - A section of a NEPA Environmental Impact
Statement including environmental impacts of the proposed action, any adverse environmental
effects which cannot be avoided should the proposal be implemented, the relationship between
local short-term uses of man’s environment and the maintenance and enhancement of long-term
productivity, and any irreversible and irretrievable commitments of resources.
Origin: NEPA section 102(2)(C); 40 CFR 1502.16, CEQ
environmental document - (NEPA definition) - Environmental document includes the
documents specified in section 1508.9 (environmental assessment), section 1508.11
(environmental impact statement), section 1508.13 (finding of no significant impact), and section
1508.22 (notice of intent).
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Origin: 40 CFR 1508.9, 1508.11, 1508.13, 1508.22, CEQ
environmental impact statement (EIS) - (NEPA definition) - A detailed written statement
required by section 102(2)(C) of NEPA containing, among other things, an analyses of
environmental impacts of a proposed action and alternative considered, adverse effects of the
project that cannot be avoided, alternative courses of action, short-term uses of the environment
versus the maintenance and enhancement of long-term productivity, and any irreversible and
irretrievable commitment of resources.
Origin: NEPA section 102(2)(C); 40 CFR 1508.11 and 40 CFR 1502, CEQ; FWS 2001, FWS
2003, FWS 1996
extinction - No longer in existence, i.e., no individuals of the species exist.
Origin: FWS 2011
extirpated - Locally extinct; other populations of the species exist elsewhere.
Origin: FWS 2011; FWS 2005
federal agency - any department, agency, or instrumentality of the United States.
Origin: ESA section 3(7); FWS and NMFS 1998
Federal Register (FR) - The official journal of the Federal government that contains most
routine publications and public notices of government agencies. The Federal Register is
compiled by the Office of the Federal Register (within the National Archives and Records
Administration) and is printed by the Government Printing Office. Section 10(c) of the ESA
requires we publish notices in the Federal Register.
Origin: Working definition
federal regulations - When a law is passed by Congress and signed by the President, its
language authorizes the relevant members of the President’s Cabinet (e.g., the Secretaries of the
Interior and Commerce) to enact Federal regulations to instruct Federal agencies on how to
implement the statute they execute. Found in the Code of Federal Regulations (CFR), all Federal
agencies must comply with the requirements of these regulations. The regulations that most
pertain to HCPs are found at 50 CFR Parts 13 and 17 for the FWS and 50 CFR Part 222 for
NMFS. Also note that the regulations that pertain to section 7 of the ESA are found at 50 CFR
Part 202.
field office - Offices of each Service with specific areas of responsibilities, or sub-offices
reporting to the Regional Office.
Origin: Working definition
finding of no significant impact (FONSI) - (NEPA definition) - A document prepared in
compliance with NEPA, supported by an EA, that briefly presents why a Federal action will not
have a significant effect on the human environment and for which an EIS, therefore, will not be
prepared.
Origin: 40 CFR 1508.13, CEQ; FWS 2001, FWS 2003, FWS 1996
findings - See set of findings.
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Origin: FWS 2012
fish and/or wildlife - Any member of the animal kingdom, including without limitation any
mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which
protection is also afforded by treaty or other international agreement), amphibian, reptile,
mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or
offspring thereof, or the dead body or parts thereof.
Origin: ESA section 3(8); 50 CFR 424.02
Additional Information: Definition was created in 1984 to interpret and implement those
portions of the Endangered Species Act that pertain to the listing of species and the
determination of critical habitats.
Freedom of Information Act (FOIA) - A federal statute that applies to the Executive Branch of
Government. Anyone can submit a request to see agency records for any reason. Requirements:
1) The records are reasonably described, and 2) The request is made according to published
regulations. The request must be for copies of “Agency Records”: 1) Existing and created or
obtained by the Agency, and 2) Under the control of the Agency.
Origin: 5 USC 552; FWS 2012
fully offset - Completely mitigating any impacts expected to remain after avoidance and
minimization measures are implemented. Other terminology meaning the same thing are that
conservation measures are commensurate with the level and type of impacts of the taking or that
they will compensate for the impacts of the taking. Fully offset means the biological value that
would be lost (from covered activities) will be replaced (through implementation of covered
activities) with equivalent biological value.
Origin: working definition, Chapter 9
funding assurances - It is incumbent upon the applicant to produce an itemized list of financial
obligations necessary to implement all components of the conservation program including all
minimization and mitigation measures; adaptive management and monitoring programs;
maintenance of preserve lands; all measures to address changed circumstances; and any other
aspects of the HCP deemed necessary to meet the issuance criteria throughout the duration of the
permit. To this end, it is vitally important that the applicant develop a robust and very detailed
economic analysis which not only addresses current costs, but also includes a factor for
addressing inflation, changing land values and any other changing costs for the duration of the
agreed upon time frame. Additionally, the applicant must identify the financial/legal instruments
that will be used to ensure that funding will be available in appropriate amounts at appropriate
times throughout the duration of the obligation.
Origin: FWS 2012 and working definition
general conservation plan (GCP) - Consists of a completed landscape level conservation plan
and NEPA compliance document produced either by the Services, or by another entity in
cooperation with the Services; however, no permit is issued at the time the conservation plan is
approved. This approach is recommended in situations where a large-scale HCP covering many
similar actions is needed, but where no applicant is capable to serve as a master permittee. In this
type of HCP, the Services define the geographic scope of the GCP, the conservation plan and
associated mitigation requirements. In this process, the Services complete a single Findings
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document, a single section 7 biological opinion, and a single NEPA document for all actions
covered under the GCP. The GCP is made available for adoption and use by numerous applicants
who will receive individual ITPs when they can demonstrate compliance with the conservation
plan and mitigation requirements of the GCP.
Origin: October 5, 2007 U.S. Fish and Wildlife Service Policy Memo; Cole 2013
goal - Habitat and wildlife are closely intertwined. Managing wildlife may include habitat
manipulation and direct manipulation of populations. Thus, where possible, biological goals
should include both habitat and wildlife elements. Each biological goal should contain four
elements: (1) a key subject of concern (e.g., a particular species or guild, a biotic community, or
a habitat type); (2) the attribute of interest for that subject (e.g., population size, physical area
covered, species composition); (3) a conceptual target or condition for the attribute (e.g., a
number, period of time, natural), and; (4) an action or effort (e.g., restore, provide) that we will
make relative to the target.
Origin: FWS 1997
Additional Information: See also biological goal.
habitat - The location where a particular taxon of plant or animal lives and its surroundings,
both living and non living; the term includes the presence of a group of particular environmental
conditions surrounding an organism including air, water, soil, mineral elements, moisture,
temperature, and topography.
Origin: FWS 2013, FWS 2005, FWS 2003, FWS 1996
harass (FWS) - Is defined by the FWS as “… an intentional or negligent act or omission which
creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or
sheltering.”
Origin: 50 CFR 17.3
Additional information: Federal Register, September 26, 1975 (Volume 40, No. 188) p.
544413. In 1998 additional language was added for circumstances involving captive wildlife.
“…This definition, when applied to captive wildlife, does not include generally accepted: (1)
Animal husbandry practices that meet or exceed the minimum standards for facilities and care
under the Animal Welfare Act, (2) Breeding procedures, or (3) Provisions of veterinary care for
confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not
likely to result in injury to the wildlife.” Federal Register September 11, 1998, Volume 63, No.
176 (p. 48639).
harass (NMFS) - As of the publication date of this Handbook, the National Marine Fisheries
Service had never promulgated a regulatory definition for Harass under the ESA. In the context
of ESA sections 7 and 10, NMFS issued interim guidance under which NMFS will interpret
“harass” in a manner similar to the FWS regulatory definition for non-captive wildlife: “Create
the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt
normal behavioral patterns which include, but are not limited to, breeding, feeding, or
sheltering.”
Origin: NMFS, Interim Guidance on the Endangered Species Act Term “Harass,” October 21,
2016.
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Additional information: NMFS has promulgated a definition for Harass under the Marine
Mammal Protection Act). See that Act (and 1994 amendments) for that definition.
harm (FWS) - Is defined by FWS to mean “an act which actually kills or injures wildlife. Such
act may include significant habitat modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns such as breeding, feeding, or
sheltering.”
Origin: 50 CFR 17.3
Additional information: See 1981 Final Rule, Federal Register November 4, 1981 (Volume 46,
number 213) p. 54750.
harm (NMFS) - NMFS promulgated its own definition of Harm under the ESA. It is very
similar to the FWS definition. “Harm in the definition of “take” in the ESA means an act which
actually kills or injures fish or wildlife. Such an act may include significant habitat modification
or degradation which actually kills or injures fish or wildlife by significantly impairing essential
behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.”
Origin: 50 CFR 222.102
Additional information: See also Federal Register, November 8, 1999, Vol. 64, No. 215 (pp.
60727-60731).
HCP (or SHA or CCA) Area - A term to express the specific geographic area where the plan or
agreement can be implemented.
Origin: working definition
HCP (or SHA or CCA) Boundary - The boundary of the specific geographic area where the
plan or agreement can be implemented.
Origin: working definition
historic property - Under the National Historic Preservation Act (NHPA), any prehistoric or
historic district, site, building, structure, or object included on, or eligible for inclusion on, the
National Register, including artifacts, records, and material remains relating to the district, site,
building, structure, or object.
Origin: NHPA section 106; 36 CFR 800.16(l)(1)
impacts - (NEPA definition) - Synonymous with effects and used interchangeably.
Origin: 40 CFR 1508.8, CEQ
implementation agreement or implementing agreement - Section 10(a)(2)(B) of the ESA,
which describes issuance criteria for incidental take permits, authorizes the Services to obtain
"such other assurances as [they] may require that the plan will be implemented." This provision
allows the Services broad latitude to require measures as necessary to accommodate the wide
variety of circumstances often encountered in HCPs. Implementing Agreements can help assure
the government that the applicant will implement the mitigation program and other conditions of
the HCP, while assuring the applicant that agreed upon procedures will be followed for any
changes in the conditions of the permit or the conservation measures for species addressed in the
HCP. An Implementing Agreement includes one or more of the following elements: (1) defines
the obligations, benefits, rights, authorities, liabilities, and privileges of all signatories and other
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parties to the HCP; (2) assigns responsibility for planning, approving, and implementing specific
HCP measures; (3) specifies the responsibilities of the FWS, NMFS, or other state and Federal
agencies in implementing or monitoring the HCP's conservation program; (4) provides for
specific measures when habitat acquisition, transfer, or other protections are part of the HCP's
mitigation program; (5) establishes a process for amendment of the HCP, where necessary; and
(6) provides for enforcement of HCP measures and for remedies should any party fail to perform
on its obligations under the HCP.
Origin: FWS and NMFS 1996
incidental take - Take of listed fish or wildlife species that results from, but is not the purpose
of, carrying out an otherwise lawful activity conducted by a Federal agency or applicant.
Origin: 50 CFR 402.02, FWS and NMFS; FWS and NMFS 1998
Additional information: Incidental take can be exempted through section 7 or authorized by
section 10 of the Act.
incidental take permit (ITP) - A permit issued under section 10(a)(1)(B) of the ESA to a nonFederal party undertaking an otherwise lawful project that might result in the take of an
endangered or threatened species. Application for an incidental take permit is subject to certain
requirements, including preparation by the permit applicant of a conservation plan, generally
known as a "Habitat Conservation Plan" or "HCP."
Origin: ESA section 10(a)(1)(B); FWS 2005
incidental take statement - A section after the conclusion of a Biological Opinion that “…(i)
specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and
prudent measures that the Secretary considers necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are necessary to comply with
section 1371(a)(5) of this title with regard to such taking, and (iv) sets forth the terms and
conditions (including, but not limited to, reporting requirements) that must be complied with by
the Federal agency or applicant (if any), or both, to implement the measures specified under
clauses (ii) and (iii).”
Origin: Working definition
Additional information: Quote in text above taken from the ESA section 7(b)(4)(C). The 1986
regulations describe it this way “…(i) Specifies the impact, i.e., the amount or extent, of such
incidental taking of the species; (ii) Specifies those reasonable and prudent measures that the
Director considers necessary or appropriate to minimize such impact; (iii) Sets forth the terms
and conditions (including, but not limited to, reporting requirements) that must be complied with
by the Federal agency or any applicant to implement the measures specified under (ii) above; and
(iv) Specifies the procedures to be used to handle or dispose of any individuals of a species
actually taken.” [50 CFR 402.14(i-iv)] See also page 4-42 through 4-53 of FWS and NMFS
1998.
indirect effects - (ESA definition) - Those effects that are caused by or will result from the
proposed action and are later in time, but are still reasonably certain to occur.
Origin: 50 CFR 402.02, FWS and NMFS; USFWS and NMFS 1998
indirect effects - (NEPA definition) - Are caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable. Indirect effects may include growth
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inducing effects and other effects related to induced changes in the pattern of land use,
population density or growth rate, and related effects on air and water and other natural systems,
including ecosystems.
Origin: 40 CFR 1508.8, CEQ
interdependent actions - (ESA definition) - Are those that have no independent utility apart
from the action under consideration.
Origin: 50 CFR 402.02, FWS and NMFS
interrelated actions - (ESA definition) - Are those that are part of a larger action and depend on
the larger action for their justification.
Origin: 50 CFR 402.02, FWS and NMFS
intra-Service consultation (section 7) - (ESA definition) - are those internal to either Service.
Services units will consult or confer with the appropriate field office on actions they authorize,
fund, or carry out that may affect listed, proposed or candidate species or designated or proposed
critical habitat. These actions include refuge operations, public use programs, private lands and
federal aid activities, as well as promulgating regulations and issuing permits. A Service office
requesting formal consultation provides the data required by the regulations at 50 CFR 402.14(c)
and is treated as any other action agency with the exception that there is no timing requirement
and that the incidental take statement is governed by section 10(a)(1)(B) to the extent that
mitigation, including off-site compensation not directed at the affected individuals, may be
considered. Formal intra-Service consultation must occur on the proposed issuance of any
section 10 permit. Although including candidate species is not required by law, it is Services
policy to consider candidate species when making natural resource decisions. Therefore,
candidate species will be considered for all intra-Service consultations.
Origin: Appendix E of the Intra-Service Consultation Handbook
IPaC (Information for Planning and Conservation) - This is an internet-based system
designed for easy, public access to the natural resources information for which the U.S. Fish and
Wildlife Service has trust or regulatory responsibility. One of the primary goals of the system is
to provide information that assists people in planning activities within the context of natural
resource conservation. The IPaC system also assists people through the various regulatory
consultation, permitting and approval processes administered by the Fish and Wildlife Service,
helping achieve more effective and efficient results for both the project proponents and natural
resources.
Origin: Working definition
Additional information: http://www.fws.gov/ipac/
jeopardy, jeopardize, jeopardize the continued existence of - A phrase used in the ESA, but
only defined in the regulations. “…[T]o engage in an action that reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or distribution of that species.”
Origin: 50 CFR 402.02, FWS and NMFS
Additional information: “The determination of jeopardy or adverse modification is based on
the effects of the action on the continued existence of the entire population of the listed species
or on a listed population…” (Section 7 Handbook, pp. 4-33 and 4-34).
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land use area or development area - A term to identify the area within the HCP boundary and
permit area where the majority of the land use project activities and most direct impacts will
occur.
Origin: FWS 1996
listed species - Any species of fish, wildlife or plant which has been determined to be
endangered or threatened under section 4 of the Act. FWS listed species are found in 50 CFR
17.11-17.12. NMFS listed species are found in 50 CFR 223.102 and 224.101.
Origin: 50 CFR 402.02
low-effect HCPs - Those HCPs involving minor or negligible effects on federally listed,
proposed, or candidate species and their habitats covered under the HCP and minor or negligible
effects on other environmental values or resources. For an HCP to qualify as low-effect, it must
also qualify as a categorical exclusion under NEPA. Effects can be mitigated, such as buying
conservation bank credits, so that the HCP can be considered “low-effect.” Examples may
include permanent impacts to a small area of habitat within the plan area or temporary impacts to
habitat that have minor or negligible effects on federally listed, proposed, or candidate species.
Origin: FWS 2011
master permit holder - A permit holder implementing a programmatic conservation plan who
can enroll other participants and convey incidental authority under their master incidental take
permit. See also certificate of inclusion.
Origin: Working definition
maximum extent practicable - To issue an incidental take permit, the ESA requires the Service
to make a finding that “the applicant will, to the maximum extent practicable, minimize and
mitigate the impacts of the such taking.” Guidance on meeting this statutory issuance criterion is
provided in Chapter 9.
Origin: 16 U.S.C. § 1539(a)(2)(B)
minimization measures - Within the context of the HCP, minimization is related to the impacts
of the proposed covered activities on the species to be covered. In other words, minimization
measures comprise actions that will reduce the impacts of the taking that have been identified
during the development of the HCP.
Origin: Working definition
mitigation - Because the meaning of the term “mitigation” can have different interpretations, we
define “mitigation” for the purposes of this Handbook as that it means “to offset impacts of
taking on the species.”
Origin: working definition; Chapter 9
monitoring - Conservation plans require monitoring in some capacity dependent upon the type
of plan and permit holder(s). An ideal monitoring requirement would consist of three separate
components: compliance monitoring, effects monitoring, and effectiveness monitoring.
Origin: FWS 2011b

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National Environmental Policy Act (NEPA) - A Federal statute that requires Federal agencies
to consider the environmental impacts of their discretionary proposed actions, and for significant
environmental actions seeking public input on decisions and implementation of federal actions.
negligible (and minor) - (NEPA definition) - Regarding effects under NEPA, these are nonsignificant actions.
Origin: Derived from 40 CFR 1508.7, CEQ
NEPA (analysis) document - NEPA screening document, environmental assessment, or
environmental impact statement
Origin: Working definition
no surprises assurances - The No Surprises policy, originally announced in 1994, provides
regulatory assurances to the holder of a Habitat Conservation Plan (HCP) incidental take permit
issued under section 10(a) of the ESA that no additional land use restrictions or financial
compensation will be required of the permit holder with respect to species covered by the permit,
even if unforeseen circumstances arise after the permit is issued indicating that additional
mitigation is needed for a given species covered by a permit.
Origin: 50 CFR 17, FWS; 50 CFR 222, NMFS
non-covered species - Species for which no incidental take is authorized in an incidental take
permit and is not covered in a habitat conservation plan.
Origin: Working definition
non-federal property owner - Property owners, including, but not limited to private individuals,
states, tribes, non-governmental organizations, industries, etc. that can apply for incidental take
permits under ESA section 10(a)(1)(B) and participate in corresponding conservation plans.
Origin: Working definition
notice of intent (Federal Register) - A notice, usually published in the Federal Register, that an
environmental impact statement will be prepared and considered.
Origin: 40 CFR 1508.22, CEQ
objective - A concise statement of what we want to achieve, how much we want to achieve,
when and where we want to achieve it, and who is responsible for the work. Objectives derive
from goals and provide the basis for determining strategies, monitoring accomplishments, and
evaluating the success of strategies.
Origin: FWS 1997
Additional Information: See also biological objective.
operating conservation program - An operating conservation program includes an operating
conservation plan, HCP, the aim of which is to avoid, minimize, and compensate for impacts on
covered species that result from authorized activities, and to protect and conserve habitats that
support these species.
Origin: Working definition
Additional Information: See also conservation program.

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permit - A document signed by an authorized official of the Services that authorizes, limits, or
describes take of ESA listed species. ESA section 10(a)(1)(B) incidental take permits authorize
take that occurs incidental to and not the purpose of otherwise lawful activities in accordance
within HCP; ESA section 10(a)(1)(A) authorizes incidental take in accordance with an SHA or
CCAA.
Origin: Working definition and ESA sections 10(a)(1)(A) and 10(a)(1)(B).
permit area - The geographic area where the incidental take permit applies. It includes the area
under the control of the applicant/permittee(s) where covered activities will occur. The permit
area must be delineated in the permit and be included within the plan area of the HCP.
Origin: Working definition modified from HCP Training NCTC Course notebook.
plan area - The specific geographic area where covered activities described in the HCP,
including mitigation, may occur. The plan area must be identified in the HCP. Depending on the
nature of the HCP, the plan area could for example: a) be all or some of the property of a single
landowner; b) may encompass a large area to allow for future acquisition or expansion of control
of a large company; or c) encompass a whole county, state, or other area under a programmatic
HCP that would allow enrollment by multiple landowners over time. Plan areas must include at
least the permit area but often include lands outside of the permit area.
Origin: Working definition modified from HCP Training, National Conservation Training
Center Course notebook.
programmatic plan or agreement - A large-scale plan with a central, or master, permit holder
and participants enrolled by the permittee’s regulatory authorities, or signed up through
certificates of inclusion.
Origin: Working definition
properly implemented conservation plan - Any conservation plan, Implementing Agreement
and permit whose commitments and provisions have been or are being satisfactorily
implemented by the permittee.
Origin: 50 CFR 17.3, FWS; 50 CFR 222.102, NMFS
property owner - A person with a fee simple, leasehold, or other property interest (including
owners of water rights or other natural resources), or any other entity that may have property
interest, sufficient to carry out the proposed management actions, subject to applicable state law,
on non-federal land.
Origin: 50 CFR 17.22(c), 17.22(d), 17.32(c), and 17.32(d), FWS; FWS 2013
proposed action - (NEPA definition) - Under NEPA regulations, a plan that has a goal which
contains sufficient details about the intended actions to be taken or that will result, to allow
alternatives to be developed and its environmental impacts to be analyzed.
Origin: 40 CFR 1508.23, CEQ; FWS 2013, FWS 2003, FWS 2001, FWS 1996
proposed species - Any species of fish, wildlife or plant that is proposed in the Federal
Register to be listed under section 4 of the ESA.
Origin: 50 CFR 402.02, FWS and NMFS; FWS and NMFS 1998

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qualified applicant - For FWS, a qualified applicant is one that has the legal authority to
execute their proposed project on the lands that are proposed for coverage under an HCP and
sufficient legal control to implement the HCP, such as ownership of property in fee simple, a
lease agreement that grants authority for the proposed project, or similar type of legal authority
to conduct the proposed activities. For NMFS, a qualified applicant is so determined by the
Administrator.
Origin: 50 CFR 17.22(b)(2)(F), FWS; 50 CFR 17.32(b)(2)(F), FWS; 50 CFR 222.303(e)(1)(v),
NMFS
ROD (Record of Decision) - The ROD is the final step for agencies in the EIS process. The
ROD is a document that states what the decision is; identifies the alternatives considered,
including the environmentally preferred alternative; and discusses mitigation plans, including
any enforcement and monitoring commitments.
Origin: Working definition
Additional information: 40 CFR 1505.2 and 1505.3; A Citizen’s Guide to NEPA, Having Your
Voice Heard, Council on Environmental Quality, 2007, 49 p.
recovery - Improvement in the status of listed species to the point at which listing is no longer
appropriate under the criteria set out in section 4(a)(1) of the Act.
Origin: 50 CFR 402.02, FWS and NMFS
recovery unit - Management subsets of the listed species that are created to establish recovery
goals or carrying out management actions essential to the conservation of the species. To lessen
confusion in the context of section 7 and other ESA activities, a subset of an animal or plant
species that needs to be identified for recovery management purposes will be called a "recovery
unit" instead of a "population." May help in delineating permit and planning areas.
Origin: FWS 2011; NMFS 2010
requested take - The amount or extent of take requested by the applicant in a permit application
and conservation plan.
Origin: Working definition
resource - The habitats, circumstances, and other physical or biological features or conditions
required by a species for breeding, feeding and/or sheltering (reproduction, nutrition, habitat for
plants). Examples include: grassland, forest, natural ambient light, habitat structure, ability to
roost undisturbed, host species, prey species, pollinators, aspect of slope, etc.
Origin: FWS 2015
safe harbor agreement (SHA) - A voluntary agreement (under section 10(A)(1)(a) involving
private or other non-Federal property owners whose actions contribute to the recovery of species
listed as threatened or endangered under the ESA. The agreement is between cooperating nonFederal property owners and the U.S. Fish and Wildlife Service or the National Oceanic and
Atmospheric Administration.
Origin: Working definition
Additional information: See Federal Register, June 17, 1999, Vol. 64, No. 116, (pp. 32771 –
32726) for Safe Harbor policy.

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safe harbor assurances - Assurances provided by the Services to a non-Federal property owner
in the Agreement and authorized in the enhancement of survival permit for covered species.
These assurances allow the property owner to alter or modify enrolled property, even if such
alteration or modification results in the incidental take of a listed species to such an extent that it
returned the species back to the originally agreed upon baseline conditions. Such assurances
may apply to whole parcels or portions of the owner's property as designated in the Agreement.
These assurances depend on the property owner complying with obligations in the Agreement
and in the enhancement of survival permit.
Origin: FWS 2013; 64 FR 1999
Science Advisory Committees/Teams - The purpose of the Science Advisory Committee is to
make recommendations to the Applicant on what species should be considered in the HCP; help
to determine the effects of the Covered Activities on the potential covered species; and assist in
development of the minimization and mitigation package for the proposed HCP. Some advisory
committees may be established to guide adaptive measures during permit implementation. The
basis for any HCP planning effort is the scientific understanding behind the species and their
habitats that are likely to be included in the HCP. The scientific advisory committee usually
consists of recognized species experts from academia, State agencies, Federal agencies, and
FWS. The Applicant should also be represented on the committee and the lead biologist working
on the planning effort. The size of the Scientific Advisory Committee should be proportional to
the number of potential covered species and complexity of the issues being addressed in the
HCP. If there is potentially a large number of covered species, it may not be practical to have
experts on all the species on the Science Advisory Committee. In this instance, it may be
advisable to have representatives of the potential applicant, FWS, States, and other federal
agencies comprise the committee, which then would coordinate with the species experts to make
recommendations to the applicant.
Origin: FWS 2012
section 4 - The section of the Endangered Species Act of 1973, as amended, outlining
procedures and criteria for: (1) identifying and listing threatened and endangered species; (2)
identifying, designating, and revising critical habitat; (3) developing and revising recovery plans;
and (4) monitoring species removed from the list of threatened or endangered species [ESA §4]”.
Origin: Working definition and section 4, ESA
section 4(d) - That section of section 4 (of the ESA) that relates to protective regulations the
Secretary deems necessary and advisable to provide for the conservation of such [threatened]
species.
Origin: Working definition and section 4(d) of the ESA.
section 6 - The section of the ESA that sets out the manner in which the Services cooperate with
the individual states to conserve endangered or threatened species e.g. management agreements,
cooperative agreements, allocation of funds, etc.
Origin: Working definition and section 6 of the ESA.
section 7 - The section of the ESA outlining the mandate for Federal agencies to use their
authorities to conserve listed species and habitat designated as critical (section 7(a)(1)); establish
the requirement to conduct conferences on proposed species, allow applicants to initiate early
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consultation, require FWS and NMFS to prepare biological opinions, and issue incidental take
statements (section 7(a)(2)). Section 7 also establishes procedures for seeking exemptions from
the requirements of section 7(a)(2) from the Endangered Species Committee.
Origin: Working definition and section 7 of the ESA.
section 9 - The section of the Endangered Species Act of 1973, as amended, that prohibits the
taking of endangered species of fish and wildlife. Additional prohibitions include: (1) import or
export of endangered species or products made from endangered species; (2) interstate or foreign
commerce in listed species or their products; and (3) possession of unlawfully taken endangered
species. ESA section 9.
Origin: Working definition and section 9 of the ESA.
section 10 - The section of the ESA that provides exceptions to section 9 prohibitions. The
exceptions relevant to HCPs are takings allowed by two kinds of permits issued by the Services:
scientific take permits [section 10 (a)(1)(A)] and incidental take permits [section 10 (a)(1)(B)].
The Services can issue permits to take listed species for scientific purposes, or to enhance the
propagation or survival of listed species. The Services can also issue permits to take listed
species incidental to otherwise legal activity. ESA section 10.
Origin: Working definition and section 10 of the ESA.
section 10(a)(1)(A) - That portion of section 10 of the ESA that allows for permits for the taking
of threatened or endangered species for scientific purposes or for purposes of enhancement of
propagation or survival.
Origin: ESA section 10(a)(1)(A); FWS 2013, FWS 2003, FWS 2001, FWS 1996
section 10(a)(1)(B) - That portion of section 10 of the ESA that allows for permits for incidental
taking of threatened or endangered species.
Origin: ESA section 10(a)(1)(B); FWS 2013, FWS 2003, FWS 2001, FWS 1996
Service(s) - The U.S. Fish and Wildlife Service or the National Marine Fisheries Service (or
both).
Origin: FWS and NMFS 1998
set of findings - Document prepared for the administrative record to memorialize a permit
decision. Often executed as a recommended action by staff or middle management for
concurrence by permit signatory at time of permit decision. It may incorporate NEPA functions,
such as the finding of no significant impact or environmental action statement.
Origin: FWS 1996, 50 CFR Parts 13 and 17, FWS, 50 CFR 222, NMFS
species – “…[I]ncludes any subspecies of fish or wildlife or plants, and any distinct population
segment of any species of vertebrate fish or wildlife which interbreeds when mature.”
Origin: ESA, section 3
species take avoidance measures (STAMs) - Measures the Service has approved and the
applicant agrees to undertake to avoid take of a listed, proposed, candidate, or other at-risk
species within a permit area.
Origin: Great Plains Wind Energy HCP and NiSOurce HCP; began as industry term
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stakeholders - Anyone with an interest or stake. Includes Federal, State, and local agencies,
Tribes, non-governmental organizations, industries, other groups, or individuals with an interest
in recovery, or who may be affected by recovery planning or implementation.
Origin: FWS 2011
stay ahead provisions - The specifics are laid out in each HCP, but generally stay ahead
provision require the conservation to be implemented before impacts can occur.
steering committee - Group or panel of individuals representing affected interests or
stakeholders in a conservation planning program, the private sector, and the interested public,
which may be formed by the applicant to guide development of the HCP, recommend
appropriate development, land use, and mitigation strategies, and to communicate progress to
their larger constituencies. FWS and NMFS representatives may participate to provide
information on procedures, statutory requirements, and other technical information (but Service
representatives should not request a recommendation to comply with the Federal Advisory
Committee Act).
Origin: FWS and NMFS 1996
Surrogate - Term originating from the FWS Section 7 Handbook describing an alternative way
to express the level of take anticipated from an action when the take of individuals of the species
is difficult to detect or enumerate.
Origin: Working definition
Additional Information: Handbook, p. 4-47 and 4-49. Practitioners should note that if a
surrogate is used, the relationship between it and the listed species must be well established in
the Biological Opinion before its use in the Incidental Take Statement.
survival - “…[F]or determination of jeopardy/adverse modification: the species' persistence as
listed or as a recovery unit, beyond the conditions leading to its endangerment, with sufficient
resilience to allow for the potential recovery from endangerment. This condition is characterized
by a species with a sufficient population, represented by all necessary age classes, genetic
heterogeneity, and number of sexually mature individuals producing viable offspring, which
exists in an environment providing all requirements for completion of the species' entire life
cycle, including reproduction, sustenance, and shelter.
Origin: FWS and NMFS 1998, p. xviii
Additional Information: Mentioned several times in the ESA, but not defined there.
take - “…to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to
engage in any such conduct.”
Origin: ESA section 3
Additional information: See also harass and harm. Plants are treated differently regarding take see ESA section 9.
threats assessment - A systematic identification, deconstruction and analysis of potential
threats, including sources and their associated stressors. It results in a well-documented
population by population assessment of the scope and severity and the related imminence of each

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potential threat. A threats assessment can be organized by the five factors in section 4(a)(1).
Sometimes called a threats analysis.
Origin: FWS 2011
threatened species - Any species that is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its range.
Origin: ESA section 3(20); 50 CFR 424.10(m), FWS and NMFS
unforeseen circumstances - Means changes in circumstances affecting a species or geographic
area covered by a conservation plan or agreement that could not reasonably have been
anticipated by plan or agreement developers and the Service at the time of the conservation
plan's or agreement's negotiation and development, and that result in a substantial and adverse
change in the status of the covered species.
Origin: 50 CFR 17.3, FWS; 50 CFR 222.103, NMFS
viability - The ability of a species to persist over the long term, and conversely, to avoid
extinction over some time period. So we can think of a viable species as having a high degree of
redundancy (multiple, strategically situated populations), resilience (self-sustaining populations),
and representation (ability to adapt and evolve).
Origin: FWS 2013b
______________________________________________________________________________
References:
ESA Sec 3. Endangered Species Act Section 3. Definitions. Available at
http://www.nmfs.noaa.gov/pr/laws/esa/text.htm#section3 Accessed 11/26/12.
Cole, P. 2013. Personal communication. E-mail sent 1.29.13 Definitions developed by handbook
team, HCP class revision team, and IPaC team for Chapter 8 of the revised handbook.
Cox, Dan. 2012. Pers Comm. during National HCP Coordination Conference call. See notes
from December 5, 2012.
FWS 1996. HCP Handbook, Chapter 8 Definitions.
FWS 2003. Draft CCAA Handbook, April 2003, Appendix 2 List of Definitions.
FWS 2004. Writing Refuge Management Goals and Objectives: a Handbook. January 2004.
FWS 2005. Endangered Species Glossary, Revised April 2005. Available at: ESA Document
Library http://www.fws.gov/endangered/esa-library/index.html accessed 4/11/13.
FWS 2007. Compiling a decision file and an administrative record. 282 FW 5. Available at
http://www.fws.gov/policy/282fw5.html Accessed 10/14/15.
FWS 2011. Recovery Planning Guidance Glossary – DRAFT 09/26/11 (from Tara Nicolaysen)

G-25

FWS 2011b Habitat Conservation Planning for Endangered Species, Course notebook
PowerPoint notes pages, NCTC December 2011.
FWS 2012a Draft Revised HCP Handbook accessed on FWS SharePoint 1.28.13.
FWS 2012b. Plans and Agreements Data Definitions in Environmental Conservation Online
System (ECOS) Conservation Plans and Agreements Database
https://ecos.fws.gov/conserv_plans/jsp/datadefs.jsp Accessed December 12, 2012.
FWS 2013. Draft SHA Handbook, Appendix 13 Definitions version 2/11/13. (obtained from
Karen Anderson)
FWS 2015. Version 3.3. Species Status Assessment Framework.
FWS and NMFS 1998. Endangered Species Consultation (section 7) Handbook, Final March
1998
FWS 1997. Writing Refuge Management Goals and Objectives: A Handbook.
http://www.fws.gov/refuges/policiesandbudget/pdfs/writingrefugegoals_022504.pdf Accessed on
10/14/15.
FWS and NMFS 2000. Availability of a Final Addendum to the Handbook for Habitat
Conservation Planning and Incidental Take Permitting Process (also known as 5-Point Policy) in
Federal Register Volume 65, No. 106, June 1, 2000 pgs 35242-35257.
National Conservation Training Center, HCP Course notebook.
NMFS 2015. West Coast Region Conservation Banking Guidance. Available at
http://home.nmfs.noaa.gov/organization/regions/west_coast/2_cross_div_coord/3_consrve_bank/
conserv_bank_doc/8.2015_wcr_consevation_banking_guidance.pdf Accessed 10/14/15.
NMFS 2010. Interim Endangered and Threatened Species Recovery Planning Guidance.
Available at http://www.nmfs.noaa.gov/pr/pdfs/recovery/guidance.pdf Accessed 10/15/15.
NOAA 2012. National Oceanic and Atmospheric Administration Guidelines for Compiling an
Agency Administrative Record. Available at
http://www.gc.noaa.gov/documents/2012/AR_Guidelines_122112-Final.pdf Accessed 10/14/15.
40 CFR 1508. Code of Federal Regulations Title 40 Protection of Environment, Part 1508
Terminology and Index. Available at http://www.ecfr.gov/
50 CFR 13. Code of Federal Regulations Title 50 Wildlife and Fisheries, Chapter I FWS, Part 13
General Permit Procedures Available at http://www.ecfr.gov/
50 CFR 17.3. Code of Federal Regulations Title 50 Wildlife and Fisheries, Chapter I FWS, Part
17 Endangered and Threatened Wildlife and Plants, 17.3 Definitions. Available at
http://www.ecfr.gov/
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50 CFR 200 Code of Federal Regulations Title 50 Wildlife and Fisheries,
Chapter II NMFS, Part 222 General Endangered and Threatened Marine Species. Available at
http://www.ecfr.gov/
50 CFR 222 Code of Federal Regulations Title 50 Wildlife and Fisheries,
Chapter II NMFS Available at http://www.ecfr.gov/
50 CFR 400-499 Code of Federal Regulations Title 50 Wildlife and Fisheries,
Chapter IV Joint Regulations FWS and NMFS; Endangered Species Committee Regulations.
Available at http://www.ecfr.gov/

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LITERATURE CITED*
*This literature cited consists of documents not already found in either the toolbox or if
hyperlinks are provided in the text of the Handbook chapters.
Atkinson, A. J., P. C. Trenham, R. N. Fisher, S. A. Hathaway, B. S. Johnson, S. G. Torres, and
Y. C. Moore. 2004. Designing Monitoring Programs in an Adaptive Management
Context for Regional Multiple Species Conservation Plans. US Geological Survey,
California Department of Fish and Game, and US Fish and Wildlife Service.
DOC/NOAA/NMFS 1999, NEPA Procedures, Department of Commerce Administrative Order
216-6, May 20, 1999.
DOI 2001. Department of the Interior's NEPA Implementing Procedures, 43 CFR 46;
Department Manual (DM) Part 516, Chapter 6.
DOI 2009. Department of the Interior Adaptive Management Technical Guide. Available at,
https://www2.usgs.gov/sdc/doc/DOI-%20Adaptive%20ManagementTechGuide.pdf
DOI 2001. Department of the Interior, 516 Departmental Manual (DM) 8.
DOI 2015. Department of the Interior, 600 Departmental Manual (DM) 6.7. Available at,
https://www.doi.gov/sites/doi.gov/files/uploads/TRS%20and%20Chapter%20FINAL.pdf
FWS and NMFS 1996. Habitat Conservation Planning Handbook.
FWS 2014. U.S. Fish and Wildlife Service Manual, 730 FW 1. Available at
https://www.fws.gov/policy/730fw1.html
Friends of the Wild Swan v. Jewell, 2014 U.S. Dist. LEXIS 116788 (D. Montana, Aug. 21,
2014)
Gross, J.E. 2003. Developing conceptual models for monitoring programs National Parks
Service inventory and monitoring program, Ft Collins, CO. Available at,
http://science.nature.nps.gov/im/monitor/docs/Conceptual_Modelling.pdf
National Research Council. 2009. Informing Decisions in a Changing Climate. Panel on
Strategies and Methods for Climate-Related Decision Support, Committee on the Human
Dimensions of Global Change. Division of Behavioral and Social Sciences and Education.
Washington, DC: The National Academies Press.
National Wildlife Federation v. Babbitt, 128 F.Supp.2d 1274 (E.D. Cal. 2000)
National Wildlife Federation v. Norton, 2005 WL2175874 (E.D. Cal. Sept. 7, 2005)
National Wildlife Federation v. Norton, 306 F.Supp.2d 920 (E.D. Cal. 2004)

1

NMFS 2005. Delegation of Authority for Section 7 Consultations Under ESA. NMFS No. 02110-12, December 12, 2005. Available at,
http://www.nmfs.noaa.gov/op/pds/documents/02/110/02-110-12.pdf
NOAA 1999. National Oceanic and Atmospheric Administration (NOAA) Administrative Order
Series 216-6, May 20, 1999. Available at, http://www.nepa.noaa.gov/NAO216_6.pdf
Reynolds, J.H., M. G. Knutson, K. B. Newman, E. D. Silverman and W. L. Thompson. 2016.
Designing a Monitoring Program A Road Map for Planning a Biological Monitoring Program.
Environmental Monitoring and Assessment 188(6).
Sierra Club v. Babbitt, 15 F.Supp.2d 1274 (S.D. Ala. 1998)
Sierra Club v. Norton, 207 F.Supp.2d 1310 (S.D. Ala. 2002)
Stein, B. A., Glick, P., Edelson, N., & Staudt, A. 2014. Climate-smart conservation: putting
adaption principles into practice. National Wildlife Federation.
SWCBD v. Bartel, 470 F. Supp. 2d 1118 (S.D. Cal. 2006)
Union Neighbors United, Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 2016)
80 FR 68743, November 3, 2015. Mitigating Impacts on Natural Resources From Development
and Encouraging Related Private Investment.

2