Red cockaded woodpecker Illustration by Robert Savannah

Incidental take permits are required when non-Federal activities will result in "take" of threatened or endangered species. A habitat conservation plan or "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 (Act) 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 are being developed and what size areas do they cover?

As of September 30, 1998, 243 incidental take permits have been issued and approximately 200 Habitat Conservation Plans (HCPs) are in various stages of development. The total planning area covered by the incidental take permits is approximately 6.5 million acres. Typically an HCP planning area includes the area that is permitted for take, any habitat avoided, and sometimes includes the mitigation lands. The number of permits for each region are as follows: Region 1 has issued 79 incidental take permits covering approximately 5.2 million acres; Region 2, 98 permits covering 666,228 acres; Region 4, 55 permits covering 473,730 acres; Region 5, one permit covering 200 coastal miles; Region 6, 10 permits covering 147,660 acres. Both the number of HCPs and the size and complexity of the areas they cover have increased. Most of the earlier HCPs approved were for planning areas of less than 1,000 acres. However, of the HCPs that have been developed, approximately 13 range from 10,000 to 100,000, 10 range from 100,000 to 500,000, 4 exceed 500,000, and one covers more than 1,000,000 acres. In some cases, there are more than one incidental take permit associated with an HCP. For example, the Central Coastal Orange County HCP was developed as an overall plan under which each individual participating entity received their own 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.

Who needs an Incidental Take Permit?

Anyone who believes that their otherwise-lawful activities will result in the "incidental take" of a listed species needs a permit. The Service can help you determine whether your proposed project or action is likely to result in "take" and whether an HCP is an option to consider. Service 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 Services also developed a regulation to address the problem of maintaining regulatory assurances and providing certainty to landowners through the HCP process, 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 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 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?

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

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 Service personnel provide detailed guidance and technical assistance throughout the process, the development of an 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, an HCP, an Implementation Agreement (if required), and, if appropriate, a draft National Environmental Policy Act analysis. While processing the permit application, the Service will prepare an intra-Service biological opinion under section 7 of the ESA and the incidental take permit, 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 Service 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, Environmental Assessment, or a categorical exclusion is required. Other factors such as public controversy can also affect permit processing times. "Low Effect" HCPs are those involving (1) minor effects on federally listed, proposed, or candidate species and their habitats covered under the HCP; and (2) minor effects on other environmental values or resources. These HCPs do not require a NEPA document, and the target permit processing time is 3 months. HCPs which 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 3 to 5 months. An EIS will probably be required only on rare occasions. For those requiring an EIS, the target permit processing time is less than 10 months.

How do we know if we have listed species on our project site?

Check with the appropriate State fish and wildlife agency, the nearest Service field office, or the National Marine Fisheries Service (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 an HCP?

The contents of an HCP are defined in section 10 of the Act 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 Service may require as necessary or appropriate.

What kind of actions are considered mitigation?

Mitigation measures are actions that reduce or address potential adverse effects of a proposed activity upon species covered by an 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.

What is the legal commitment of an HCP?

The elements of the HCP are made binding through the incidental take permit. While incidental take permits contain an expiration date, the mitigation identified in the HCP 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 Act. If the violation is deemed technical or inadvertent in nature, the Service 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 an HCP?

The Regional Director of the Service's Region decides whether to issue an 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 Service 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.

Who is responsible for NEPA compliance during the HCP process?

The Service 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 Service will: (1) provide the preparer with appropriate guidance concerning document preparation; and (2) review the document within 30 days and take responsibility ultimately for its scope, adequacy, and content.

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

The Act requires a 30-day period for public comment on the application for an incidental take permit. Additionally, NEPA requires public comment on certain NEPA documents, and the Service runs these two comment periods concurrently. Therefore, public comments must be considered in the permit decision.

What kind of monitoring is required for an HCP and who performs it?

The Service or any party designated as responsible by the Service (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 Service 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 long-term 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. In addition, the Service must monitor the applicant's implementation of the HCPs and the permits terms and conditions; the biological conditions associated with the HCP to determine if species' needs are being met, and must determine if the biological goals that are expected as part of the HCP mitigation and minimization strategy are being realized the Service's ability to determine if the mitigation and minimization strategy is functioning as intended and the anticipated benefits to the species are being realized.

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

Because development of an HCP is done by the applicant, it is considered a private action and, therefore, not subject to public participation or review until the Service receives an official application. The Service is committed to working with HCP applicants and providing technical assistance as required throughout the HCP development process to accommodate their needs. The Service believes that HCPs under development are restricted by privacy regulations unless waived by the applicant. However, the Service 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 Service 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 Service solicits public involvement and review, as well as requests for additional information during the scoping process for an Environmental Impact Statement.

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

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 Service ensure that species are adequately covered in HCPs?

The Service 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 provisions allow FWS and NMFS 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 Service do in the event of unforeseen circumstances that may jeopardize the species?

The Service 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 Service 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 a copy of an HCP?

Approved HCPs and associated documents are available for purchase at the Fish and Wildlife Reference Center 5430 Grosvenor Lane, Suite 110, Bethesda, MD 20814, (telephone 800/582-3421). The contact for information regarding individual HCPs that are available for public comment are listed in the individual notices of availability.