HCP Incidental Take

U.S. Fish & Wildlife Service

Habitat Conservation Plans

Section 10 of the Endangered Species Act

What is a Habitat Conservation Plan and
Incidental Take Permit?
An incidental take permit is required when
non-Federal activities will result in “take” of
threatened or endangered wildlife. A habitat
conservation plan (HCP) must accompany
an application for an incidental take permit.
The purpose of the habitat conservation
planning process associated with the permit
is to ensure there is adequate minimizing
and mitigating of the effects of the
authorized incidental take. The purpose of
the incidental take permit is to authorize the
incidental take of a listed species, not to
authorize the activities that result in take.

What is take?
“Take” is defined in the Endangered Species
Act (ESA) as harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect
any threatened or endangered species.
Harm may include significant habitat
modification where it actually kills or injures
a listed species through impairment of
essential behavior (e.g., nesting or
reproduction).

How many HCPs have been developed
and what size areas do they cover?
Both the number of HCPs and the size and
complexity of the areas they cover have
increased. More than 430 HCPs have been
approved, with many more in the planning
stage. Most of the earlier HCPs approved
were for planning areas of less than 1,000
acres; now 10 exceed 500,000 acres, with
several larger than 1,000,000 acres. In some
cases, there are more than one incidental
take permit associated with a HCP. For
example, the Central Coastal Orange
County HCP was developed as an overall
plan under which each individual
participating entity received a separate
incidental take permit. This suggests that
HCPs are evolving from a process adopted
primarily to address single projects to
broad-based, landscape-level planning,
utilized to achieve long-term biological and
regulatory goals.

The Wisconsin Statewide HCP was developed for the conservation of the endangered
Karner blue butterfly. Photo by Joel Trick.

Who needs an incidental take permit?
Anyone who believes that their otherwiselawful activities will result in the “incidental
take” of a listed wildlife species needs a
permit. The U.S. Fish and Wildlife Service
(FWS) can help you determine whether your
proposed project or action is likely to result
in “take” and whether a HCP is an option to
consider. FWS personnel can also provide
technical assistance to help you design your
project so as to avoid take. For example, the
project could be designed with seasonal
restrictions on construction to minimize
disturbance during nesting.

What is the benefit of an incidental take
permit and Habitat Conservation Plan to
a private landowner?
The permit allows a landowner to legally
proceed with an activity that would
otherwise result in the illegal take of a listed
species. The FWS also developed a
regulation to address the problem of
maintaining regulatory assurances and

providing certainty to landowners through
the HCP process, called the “No Surprises”
regulation.

What are No Surprises assurances?
No Surprises assurances are provided by
the government through the section
10(a)(1)(B) process to non-Federal
landowners. Essentially, private landowners
are assured that if “unforeseen
circumstances” arise, the FWS 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 to in the HCP
without the consent of the permittee. The
government will honor these assurances as
long as a permittee is implementing the
terms and conditions of the HCP, permit,
and other associated documents in good
faith. In effect, this regulation states that the
government will honor its commitment as
long as the HCP permittees honor theirs.

Are incidental take permits needed for
listed plants?

document, and the target permit processing
time is 3 months.

There are no Federal prohibitions under the
ESA for the take of listed plants on nonFederal lands, unless taking of those plants
is in violation of State law. However, before
the FWS issues a permit, the effects of the
permit on listed plants must be analyzed
because section 7 of the ESA requires that
issuance of a HCP permit must not
jeopardize any listed species, including
plants.

HCPs that do not fall into the “Low Effect”
category require either an EA or an EIS,
depending on their complexity. For those
requiring an EA as part of the permit
application, the target permit processing
time is 4 to 6 months. For those requiring an
EIS, the target permit processing time may
be up to 12 months.

What is the process for getting an
incidental take permit?
The applicant is in charge of deciding
whether to pursue an incidental take permit.
While FWS personnel provide detailed
guidance and technical assistance
throughout the process, the development of a
HCP is driven by the applicant. The
applicant is responsible for submitting a
completed permit application. The necessary
components of a completed permit
application are a standard application form,
a HCP, an Implementation Agreement (if
required), and, if appropriate, a draft
National Environmental Policy Act (NEPA)
analysis.
While processing the permit application, the
FWS will prepare the incidental take permit,
write a biological opinion under section 7 of
the ESA, and finalize the NEPA analysis
documents. Consequently, incidental take
permits have a number of associated
documents besides the HCP.

How long will it take to process our
application?
The length of time to complete the
permitting process depends on the
complexity of issues involved (e.g., the
number of species) and the completeness of
the documents submitted by the applicant.
The FWS will work to complete all steps,
such as the public comment process, as
expeditiously as possible. The most variable
factor in permit processing requirements is
the level of analysis required for the
proposed HCP under NEPA, in other
words, whether an Environmental Impact
Statement (EIS), Environmental
Assessment (EA), or a categorical exclusion
is required. Other factors such as public
controversy can also affect permit
processing times.
“Low Effect” HCPs are those involving
minor effects on federally listed, proposed,
or candidate species and their habitats
covered under the HCP and minor effects on
other environmental values or resources.
These HCPs do not require a NEPA

can be in perpetuity in certain cases.
Violation of the terms of an incidental take
permit would result in illegal take under
section 9 of the ESA. If the violation is
deemed technical or inadvertent in nature,
the FWS may send the permittee a notice of
noncompliance by certified mail or may
recommend alternative actions to the
permittee so that they may regain
compliance with the terms of the permit.

Who approves a HCP?
How do we know if we have listed
species on our project site?
Check with the appropriate State fish and
wildlife agency, the nearest FWS field office,
or the National Oceanic and Atmospheric
Administration (NOAA) – Fisheries (for
anadromous fish). You can arrange for a
biologist from one of these agencies to visit
your property to determine whether a listed
species may be on your project site.

What needs to be in a HCP?
The contents of a HCP are defined in section
10 of the ESA and its implementing
regulations. They include:
■ an assessment of impacts likely to result
from the proposed taking of one or more
federally listed species.
■ measures the permit applicant will
undertake to monitor, minimize, and mitigate
for such impacts; the funding that will be
made available to implement such measures;
and the procedures to deal with unforeseen
or extraordinary circumstances.
■ alternative actions to the taking that the
applicant analyzed, and the reasons why the
applicant did not adopt such alternatives.
■ additional measures that the FWS may
require as necessary or appropriate.

The FWS Regional Director decides
whether to issue a HCP permit based on
findings that:
■ the taking will be incidental to an
otherwise lawful activity;
■ the impacts will be minimized, and
mitigated to the maximum extent
practicable;
■ adequate funding will be provided;
■ the taking will not appreciably reduce the
likelihood of the survival and recovery of the
species; and
■ any other necessary measures are met.
If the HCP addresses all of these
requirements and those of other applicable
laws, the permit is issued.
What other laws besides the Endangered
Species Act are involved?
In issuing an incidental take permit, the
FWS must comply with the NEPA and all
other statutory and regulatory
requirements, including any State or local
environmental/planning laws. HCPs may be
categorically excluded from NEPA or may
require either an EA or, rarely, an EIS.

What kind of actions are considered
mitigation?

Who is responsible for NEPA compliance
during the HCP process?

Mitigation measures are actions that reduce
or address potential adverse effects of a
proposed activity on species covered by a
HCP. They should address specific needs of
the species involved and be manageable and
enforceable. Mitigation measures may take
many forms, such as preservation (via
acquisition or conservation easement) of
existing habitat; enhancement or restoration
of degraded or a former habitat; creation of
new habitats; establishment of buffer areas
around existing habitats; modifications of
land use practices, and restrictions on
access.

The FWS is responsible for ensuring NEPA
compliance during the HCP process.
However, if the Service does not have
sufficient staff resources to prepare the
appropriate NEPA analysis in a timely
fashion, an applicant may, within certain
limitations, prepare draft Environmental
Assessment analyses. This can benefit the
applicant and the government by expediting
the application process and issuance of the
permit. When this is done, the FWS will
provide the preparer with appropriate
guidance concerning document preparation;
and review the document within 30 days and
take responsibility ultimately for its scope,
adequacy, and content.

What is the legal commitment of a HCP?
The elements of a HCP are made binding
through the incidental take permit. While
incidental take permits contain an expiration
date, the mitigation identified in the HCP

Does the public get to comment on our
HCP? How do public comments affect our
HCP?

Are efforts made to accommodate the
needs of HCP participants who are not
professionally involved in the issues?

The ESA requires a 30-day period for public
comment on the application for an incidental
take permit. However, we have recognized
the concerns of the public regarding
inadequate time for the public comment
period, and have extended the minimum
comment period to 60 days. Additionally,
NEPA requires public comment on certain
NEPA documents, and the FWS runs these
two comment periods concurrently.
Therefore, public comments must be
considered in the permit decision.

Because development of a HCP is done by
the applicant, it is considered a private
action and, therefore, not subject to public
participation or review until the FWS
receives an official application. The FWS is
committed to working with HCP applicants
and providing technical assistance as
required throughout the HCP development
process to accommodate their needs. The
FWS believes that HCPs under development
are restricted by privacy regulations unless
waived by the applicant. However, the FWS
does encourage the applicant to involve all
appropriate parties. This is especially true
for complex and controversial projects, and
applicants for most large-scale, regional
HCP efforts choose to provide extensive
opportunities for public involvement during
the planning process. The issuance of a
permit is, however, a Federal action that is
subject to public review and comment.
There is time for public review during the
period when the FWS reviews the
information and decides to grant or deny a
permit based on the completed HCP. A 30­
day public comment period is required for
all completed HCP applications. During this
period, any member of the public may
review and comment on the HCP and the
accompanying NEPA document (if
applicable). Additionally, the FWS solicits
public involvement and review, as well as
requests for additional information during
the scoping process for an EIS.

What kind of monitoring is required for a
HCP and who performs it?
The ESA or any party we designate as
responsible (e.g., State wildlife agency, local
government) in the HCP will monitor the
project for compliance with the terms of the
incidental take permit or HCP. If another
party is responsible for monitoring
compliance with the permit, the FWS will
require periodic reporting from such party
in order to maintain overall oversight
responsibility for the implementation of the
HCP’s terms and conditions. For regional
and other large-scale or long-term HCPs,
monitoring programs must provide longterm assurances that the HCP will be
implemented correctly, that actions will be
monitored, and that such actions will work
as expected. This should include periodic
accountings of take, surveys to determine
species status in project areas or mitigation
habitats, and progress reports on fulfillment
of mitigation requirements (e.g., habitat
acres acquired). Monitoring plans for HCPs
should establish target milestones, to the
extent practicable, or reporting
requirements throughout the life of the HCP
and should address actions to be taken in
case of unforeseen or extraordinary
circumstances.
The FWS must monitor the applicant’s
implementation of the HCP and the permit
terms and conditions. In addition to
compliance monitoring, the biological
conditions associated with the HCP should
be monitored to determine if the species
needs are being met. This includes
determining if the biological goals that are
expected as part of the HCP mitigation and
minimization strategy are being met. The
effectiveness monitoring will help the FWS
determine if the conservation strategy is
functioning as intended and the anticipated
benefits to the species are being realized.

Are the views of independent scientists
used or sought, before and during
development of a HCP?

provisions allow FWS and NOAA–Fisheries
to work with the landowner to reach mutual
agreement upon changes in the mitigation
strategies within the HCP area, if new
information about the species indicates this
is needed. Any changes in strategy that may
occur are discussed up front with the
landowner during the development of the
HCP. In this manner, the permittees are
fully aware of any future uncertainty in the
management strategies, and have concurred
with the adaptive approaches outlined in the
HCP.

What will the FWS do in the event of
unforeseen circumstances that may
jeopardize the species?
The FWS will use its authority to manage
any unforeseen circumstances that may
arise to ensure that species are not
jeopardized as a result of approved HCPs.
The FWS will work with all other Federal
and State agencies to help ensure the
continued survival and recovery of the
species in the wild.

How can I obtain information on numbers
and types of HCPs?
Our national HCP database displaying basic
statistics on HCPs is available online from
our Habitat Conservation Planning page at
http://www.fws.gov/endangered/hcp/. The
contact information regarding an individual
HCP that is available for public comment is
listed in the notice of availability for that
HCP, published in the Federal Register by
the appropriate Regional office. Regional
office contact information can be found at
http://www.fws.gov.

The views of independent scientists are
important in the development of mitigation
and minimization measures in nearly all
HCPs. In many cases, these individuals are
contacted by the applicant and are directly
involved in discussions on the adequacy of
possible mitigation and minimization
measures. In other cases, the views of
independent scientists are incorporated
indirectly through their participation in
other documents, such as listing documents,
recovery plans, and conservation
agreements, that are referenced by
applicants as they develop their HCP.

How does the FWS ensure that species
are adequately covered in HCPs?
The FWS has strengthened the HCP
process by incorporating adaptive
management into the plans when there are
species covered for which additional
scientific information may be useful during
the implementation of the HCP. These

U.S. Fish & Wildlife Service
Endangered Species Program
4401 N. Fairfax Drive, Room 420
Arlington, VA 22203
703/358-2106
http://www.fws.gov/endangered/hcp/
December 2005