The following Memorandum was issued to Fish and Wildlife Service regional managers December 11, 2000, by Director Jamie Rappaport Clark.

Subject: Application of Section 7(d) to the Habitat Conservation Planning Program

A district court decision [Environmental Protection Information Center v. Pacific Lumber Company, 67 F. Supp. 2^nd 1113 (N.D. Cal 1999)] asserts that section 7(d) applies to formal and informal consultation conducted under section 7(a)(2) of the Endangered Species Act. As a result of this ruling, potential section 10(a)(1)(B) incidental take permit applicants are concerned that entering into discussions with the Fish and Wildlife Service and National Marine Fisheries Service regarding a Habitat Conservation Plan could result in their ongoing activities being halted. Because this concern may discourage potential HCP applicants from initiating such discussions, it is important that the Services establish how section 7(d) applies to the HCP process and explain that application to potential HCP applicants. This memorandum and attachments describe recommended procedures to ensure compliance with the provisions of section 7(d).

The recommended approach (Attachment 1) acknowledges that HCP applicants are subject to the prohibitions of section 7(d), but only after the applicant has identified a plan of action and submitted it to the Services, and the Services have initiated section 7 consultation. This guidance clarifies that early discussions with potential HCP applicants do not constitute consultation. In addition, the guidance highlights the importance of properly documenting in the administrative record exactly when section 7 consultation on a proposed HCP was initiated. Finally, the guidance clarifies that if the Services make "7(d) determinations" for HCPs, we do so in the role of the Federal action agency, and establishes an approach for determining which, if any, components of an applicant's action may need to be held in abeyance in order to avoid violation of section 7(d). The Fish and Wildlife Service believes that, in most cases, it would be appropriate to make a determination whether proposed "pre-permit" activities would or would not violate 7(d). An example of a draft 7(d) determination is provided in Attachment 3.

The recommended approach does not eliminate the application of section 7(d), but it does help the Services and applicants comply with section 7(d). In addition, by following the procedures set forth in this guidance, the Services and the applicant should be able to clearly identify the

point at which the applicant is subject to section 7(d), and avoid any misunderstandings. Please direct any questions on this issue to Renne Lohoefener, Chief, Office of Consultation, HCPs, and Recovery at (703) 358-2171.

Attachments