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Habitat Conservation Plans

Habitat Conservation Plans are legally binding agreements between the Secretary of the Interior and either a private entity or a state that specifies conservation measures that will be implemented in exchange for a permit that would allow the incidental take of a threatened or endangered species. The Endangered Species Act mandates protection of threatened and endangered species and their habitat on federal and private land by prohibiting "take" of listed species through direct harm to individuals or habitat destruction. In the 1982 amendments to the Endangered Species Act, Congress established a mechanism authorizing the U.S Fish and Wildlife Service to issue to non-federal entities a permit for the "incidental take" of endangered and threatened wildlife species. This permit allows a non-Federal landowner to proceed with an activity that is legal in all other respects, but that results in the "incidental" taking of a listed species. Under this amendment, private landowners negatively affecting federally listed species are required to design and implement a plan that will minimize and mitigate harm to the impacted species during the proposed project. That plan is a Habitat Conservation Plan.

1. Developing an HCP

In general, there are three main phases to the HCP process. They are the pre-application phase, permit processing phase, and the post-issuance phase. Roles and responsibilities of the applicant and the U.S. Fish and Wildlife Service are summarized as follows:

I. Pre-application Phase

  1. Communication occurs between landowner and U.S. Fish and Wildlife Service, including technical advice for HCP development. This may involve site visits, habitat assessments, coordination with the applicant's consultant, evaluation of the issues involved, and development of monitoring strategies.

  2. The U.S. Fish and Wildlife Service must comply with the National Environmental Policy Act (NEPA) before issuing the landowner an Incidental Take Permit. Therefore, the FWS must first determine whether the project qualifies for a categorical exclusion as a "low-effect HCP". If the action is not a "low-effect" project, an Environmental Assessment or Environmental Impact Statement would need to be prepared. Preparation of NEPA documents is the responsibility of the U.S. Fish and Wildlife Service. However, we often ask the applicant to prepare the draft NEPA document to save time and speed up the process.

  3. If the project is not a "low-effect" HCP, then an Implementing Agreement must be prepared by the applicant.

  4. The U.S. Fish and Wildlife Service will review and comment on draft HCP, NEPA document, and Implementing Agreements.

II. Permit Processing Phase

  1. The applicant submits a complete application package, including the permit application, the draft HCP, and an application fee.

  2. The U.S. Fish and Wildlife Service and/or the applicant have finalized the draft NEPA documents and Implementing Agreement, if applicable.

  3. The U.S. Fish and Wildlife Service reviews all documents to determine if they are statutorily complete.

  4. The permit "package" (all documents) is mailed to the U.S. Fish and Wildlife Service regional office (Fort Snelling, MN) for review.

  5. The USFWS prepares an announcement to be published in the Federal Register for public comments on the draft HCP. The public comment period is usually 30 days.

  6. The U.S. Fish and Wildlife Service prepares a "biological opinion" on their issuance of an ITP.

  7. The U.S. Fish and Wildlife Service addresses public comments on draft HCP.

  8. The U.S. Fish and Wildlife Service drafts the appropriate NEPA document (or works with the applicant to complete it).

  9. The U.S. Fish and Wildlife Service issues the ITP to the applicant.

III. Post-issuance Phase

  1. Permittee implements HCP and ITP terms, and the U.S. Fish and Wildlife Service implements responsibilities agreed to in the HCP.

  2. Permit holder submits all the required reports that are described in the HCP and/or implementing agreement. Periodic meetings, phone calls and site visits may be needed during implementation of the HCP.

  3. The U.S. Fish and Wildlife Service monitors and evaluates the HCP and permit compliance.

2. Requirements of an HCP

According to section 10(a)(2)(B) of the Endangered Species Act and associated Federal regulations, HCPs must meet six requirements before an incidental take permit can be issued. These requirements are:

  1. All takings must be incidental,

  2. Impacts must be minimized and mitigated "to the maximum extent practicable,"

  3. There must be both adequate funding, and provisions to address "unforeseen circumstances,"

  4. The taking must "not appreciably reduce the likelihood of the survival and recovery of the species in the wild,"

  5. The applicant must ensure that additional measures required by federal regulators will be implemented, and

  6. Federal regulators must be certain that the HCP can and will be implemented.

If the HCP addresses all of these requirements and those of other applicable laws, the permit is issued.

3. Contents of an HCP

The contents of an HCP are defined in Section 10 as well. In general, they include:

  1. An assessment of impacts likely to result from the proposed taking of one or more federally listed species.

  2. 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.

  3. Alternative actions to the taking that the applicant analyzed, and the reasons why the applicant did not adopt such alternatives.

  4. Additional measures that the U.S. Fish and Wildlife Service may require as necessary or appropriate.

4. General Outline of an HCP

Table of Contents

Executive Summary
Include the general location of the project or area covered by the Habitat Conservation Plan (Plan), the desired term of the permit (i.e., number of years permit will be in effect), a brief description of the project/activity (e.g., construction of 15 houses, timber harvest on 500 acres, etc.), the species to be covered by the Plan, and a brief description of the measures that will be used to minimize and mitigate the impacts of the project.

1.0 INTRODUCTION AND BACKGROUND

1.1 Overview/Background
Provide a general overview of the project (i.e., brief description, background, history, etc. as appropriate) and purpose of the Plan.

1.2 Permit Duration
Include the desired term of the section 10(a)(1)(B) permit (i.e., duration the permit be in effect; 5 years, 20 years, etc.). Include a discussion about the factors considered in determining the length of the permit (e.g., duration of applicants proposed activities).

1.3 Regulatory/Legal Framework for Plan (Optional)
Provide a brief description of the prohibition against take and the lawful provision of incidental take as provided by the Federal Endangered Species Act. Include discussion of State Endangered Species Act as appropriate.

1.4 Plan Area
Identify the boundaries of the area covered by the Plan. Include maps, figures, universal transverse mercator (UTM) coordinates, township and range, and/or legal descriptions as necessary to clearly delineate precise boundaries. Provide map or description of regional location of Plan area/project. Multiple maps or lengthy documents should be included as an Appendix.

1.5 Species to be Covered by Permit
Provide a list of all species for which coverage under the permit is requested. Include Federal and State status, if applicable, for each species. These species are those that will be listed on the 10(a)(1)(B) permit and for which "no surprises" assurances will be given.

1.6 Other Introductory or Background Topics as Appropriate

2.0 ENVIRONMENTAL SETTING/BIOLOGICAL RESOURCES

2.1 Environmental Setting
Provide general information on the existing environmental setting (i.e., the baseline prior to project implementation). Address topics and provide detail as appropriate to the scope and scale of the proposed project.

2.1.1 Climate

2.1.2 Topography/Geology

2.1.3 Hydrology/Streams, Rivers, Drainages

2.1.4 Vegetation

2.1.5 Wildlife

2.1.6 Existing Land Use

2.2 Species of Concern in the Plan Area

2.2.1 Wildlife Species of Concern
Provide information on all species to be covered by the permit, as well as any other listed or sensitive species which may occur in the Plan area even if incidental take coverage is not requested. Include information on the species' life history, habitat requirements, and distribution and population trends both range wide and within the Plan area. Numerous or lengthy species accounts can be included in the text of the Plan or an Appendix.

2.2.2 Plant Species of Concern
Provide the same type of information as described for wildlife above.

3.0 PROJECT DESCRIPTION/ACTIVITIES COVERED BY PERMIT

3.1 Project Description
Describe the project. Provide as much detail as necessary to give a complete and accurate picture of the project, including any pertinent timing or phasing information.

3.2 Activities Covered by Permit
Describe all activities related to the project that may result in take of covered species or are important to obtaining a complete understanding of the proposed project. Include activities that may result in short-term and long-term impacts and direct and indirect impacts.

Note: Coverage under the 10(a)(1)(B) permit applies only to those actions or activities described in the Plan.

4.0 POTENTIAL BIOLOGICAL IMPACTS/TAKE ASSESSMENT

4.1 Direct and Indirect Impacts
Describe the anticipated impacts to biological resources (e.g., vegetation communities, wildlife, and plant species) resulting from project activities. Include information on both direct impacts (e.g., mortality of individual animals, grading of vegetation) and indirect impacts (e.g., change in water quality, increased traffic, fragmentation of habitat).

4.1.1 Anticipated Take: Wildlife Species
Quantify the level of take anticipated for each covered species; take could be expressed as a number of individual animals, as habitat acres, or other appropriate measures.

4.1.2 Anticipated Impacts: Plant Species
Provide the same type of information as for wildlife species described above.

4.2 Cumulative Impacts
As appropriate, discuss cumulative impacts that may occur as a result of other projects which may affect the same resources.

5.0 CONSERVATION PROGRAM/MEASURES TO MINIMIZE AND MITIGATE FOR IMPACTS

5.1 Biological Goals
Describe the desired outcome for the covered species and their habitats in terms of biological goals and objects to be achieved through implementation of the conservation program. These goals should be broad guiding principles for the operating conservation program. They are the rationale behind the minimization and mitigation strategies (e.g., maintain a viable population in the conservation area).

5.1.1 Biological Objectives
For each biological goal, describe specific biological objectives in terms of measurable targets for achieving the goals of the operating conservation program (e.g., maintain a successful reproductive rate of 70% within the conservation area during the life of the permit). The objectives could be habitat or species based. Success criteria could involve the maintenance of a certain acreage of suitable habitat, certain levels of habitat quality, certain numbers of individuals within habitat areas, certain levels of reproductive success, etc.

Note: Each covered species that falls under that goal or objective must be accounted for individually as it relates to that habitat.

5.1.2 Adaptive management strategy
For some HCPs, the adaptive management strategy will be an integral part of an operating conservation program that addresses the uncertainty in the conservation of a species covered by an HCP. The strategy should identify the uncertainty, develop experimental strategies to answer questions relating to the uncertainty, integrate a monitoring program that detects the necessary information, and incorporates a feedback loop that links implementation and monitoring to a decision-making process that results in appropriate changes in management. This strategy should ultimately achieve the biological goals of the HCP.

5.2 Measures to Minimize Impacts
Describe measures that will be implemented to avoid or minimize project impacts to covered species (e.g., education program for project workers, pre-activity surveys, plant or animal relocation, timing restrictions, vehicle speed limits, prohibitions on pets, etc.).

5.3 Measures to Mitigate Unavoidable Impacts
Describe measures that will be implemented to mitigate or compensate for unavoidable impacts (e.g., establishment of permanent habitat preserve, purchase of credits in a habitat bank, enhancement of degraded habitat, etc.)

5.4 Monitoring and Reports
Describe the monitoring measures that will be implemented to 1) evaluate compliance; 2) determine if the biological goals and objectives are being met; and, 3) provide feedback information for the adaptive management strategy.

Describe any reports that will be prepared as part of the mitigation and monitoring process (e.g., annual report assessing take that occurred, annual report on habitat acquisition, monthly report on species occurrence, etc.). Include information on the contents of the reports, frequency of reports, due dates, who will prepare reports, and to whom reports will be submitted.

6.0 FUNDING

6.1 Funding for Minimization and Mitigation Measures
Describe the funding mechanism that will be used to ensure that mitigation and monitoring will be implemented. Note that funding must be guaranteed. One option is to have mitigation in place prior to take occurring or phased-in as the take occurs. Other options for guaranteed funding include posting of a bond or letter of credit, or establishment of an endowment or other trust fund.

7.0 ALTERNATIVES

7.1 Alternative 1

7.2 Alternative 2

7.3 Alternative 3

8.0 PLAN IMPLEMENTATION, CHANGED AND UNFORSEEN CIRCUMSTANCES

8.1 Plan Implementation (Optional)
Describe any specifics of plan implementation (e.g., phasing, options in project implementation, oversight organizations or committees, etc.). The need for this section will vary with the type of project and complexity of the Plan.

8.2 Changed Circumstances
Provide a detailed description of all reasonably foreseeable circumstances, including natural catastrophes that normally occur in the area (e.g., listing of new species within the plan boundary, fire, earthquake, etc.). This should include any additional conservation and mitigation measures that are necessary to respond to the changes in circumstances. These measures should be considered part of the plan's operating conservation program.

8.3 Other Measures as Required by Director
In general, an Implementing Agreement between the permit applicant, the Service, and the appropriate State resource agency (when State-listed species are involved) is required by the Director. This section of the Plan should indicate that such an Agreement has been developed and is attached as an Appendix to the Plan.

9.0 LITERATURE CITED

APPENDICES (Optional)
The following items/information should be included as appendices to the HCP as appropriate to a particular project. Note: In some circumstances it may be appropriate for some of this information to be included in the body of the Plan rather than as an appendix.

  1. Maps/Figures
  2. Biological Reports/Biological Assessments
  3. Implementing Agreement
  4. Conservation Easement Deed
  5. State Management Agreements; Memorandums of Understanding; etc.
  6. Financial/Account Information
  7. Community Involvement Process

5. Frequently Asked Questions

How long does it take to complete an HCP?
HCPs which do not fall into the "Low Effect" category require either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), depending on their complexity. For those requiring an EA as part of the permit application, the target permit processing time is around 6 months. For those requiring an EIS, the target permit processing time is approximately 1 year.

How much will an HCP cost to complete and should I write it myself?
The cost can vary depending on the size and complexity of the proposed project. It is the landowner's responsibility to provide the Habitat Conservation Plan. It is also beneficial to the landowner if they correspond with the FWS early on (i.e., prior to writing the HCP and submitting the application package), as this will speed the application process along if we both have a clear understanding of the project description, project effects, and possible solutions to potential problems. In almost all cases, landowners hire a qualified biologist to prepare the HCP because there are many components (e.g., species information, habitat needs, project-related effects to the species, biological goals and objectives, management strategy, etc.) that require the knowledge and expertise of someone who has worked with the subject federally listed species. Individual consultant costs can vary. Regardless, we want to work closely with the landowner to insure that the HCP meets the mutual objectives of the FWS and the landowner, and that the HCP gets completed in a timely manner.

What is the legal commitment of an HCP?
The elements of the HCP are made binding through the incidental take permit. Violation of the terms of an incidental take permit would result in illegal take under Section 9 of the Endangered Species Act. If the violation is deemed technical or inadvertent in nature, the U.S. Fish and Wildlife 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. ]

What will happen if conduct my project without getting an incidental take permit?
Section 9 of the Endangered Species Act prohibits taking, possession, sale, and transport of listed species. Taking is defined as to "harass, harm, pursue, hunt, shoot, wound, kill, capture, or collect." If you have a listed species on your property and you conduct a project that would "take" a listed species without first obtaining an incidental take permit, you are in direct violation of Section 9 of the Endangered Species Act, which is a federal offence.

Who approves an HCP?
The Regional Director of the affected U.S. Fish and Wildlife Service Region.

Does the public get to comment on our HCP? How do public comments affect the HCP?
The Endangered Species 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 U.S. Fish and Wildlife Service runs these two comment periods concurrently. Therefore, public comments must be considered in the permit decision.

Are efforts made to accommodate the needs of HCP participants who are not biologists and familiar with 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 U.S. Fish and Wildlife Service receives an official application. The U.S. Fish and Wildlife Service is committed to working with HCP applicants and providing technical assistance as required throughout the HCP development process to accommodate their needs. The U.S. Fish and Wildlife Service believes that HCPs under development are restricted by privacy regulations unless waived by the applicant. However, the U.S. Fish and Wildlife 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 U.S. Fish and Wildlife 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 U.S. Fish and Wildlife Service solicits public involvement and review, as well as requests for additional information during the scoping process for an Environmental Impact Statement.

What are Low-Effect HCPs?
"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. Low-Effect HCPs do not require NEPA documentation (EIS or EA), and the target permit processing time is approximately 3 months.

What is NEPA?
In issuing an incidental take permit, the U.S. Fish and Wildlife Service must comply with the National Environmental Policy Act (NEPA) and other statutory and regulatory requirements, including any state or local environmental/planning laws. As such, they may be categorically excluded from the National Environmental Policy Act or may require either an Environmental Assessment or, rarely, an Environmental Impact Statement.

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 U.S. Fish and Wildlife 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.

What is Mitigation?
Mitigation is usually required of all landowners who participate in the incidental take permitting process. Under regulations outlined in the National Environmental Policy Act, mitigation is required to reduce or alleviate the impacts of a proposed activity. Mitigation may include avoiding an impact by not taking a certain action or parts of an action, minimizing impacts by limiting the magnitude of an action, repairing or rehabilitating the affected environment, reducing or eliminating the impact over time, and compensating for the impact by replacing or providing substitute resources or environment. How much mitigation is required and costs to the landowner will vary depending on the species, its habitat needs, and the magnitude of effect the proposed project has on the listed species and its habitat.

What kinds 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 kind of monitoring is required for an HCP and who performs it?
The U.S. Fish and Wildlife Service or any party designated as responsible by the U.S. Fish and Wildlife 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 U.S. Fish and Wildlife 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 U.S. Fish and Wildlife 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 U.S. Fish and Wildlife 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.

What is Section 7?
To issue an incidental take permit, the U.S. Fish and Wildlife Service must comply with Section 7 of the Endangered Species Act, which requires federal agencies to insure that their activities are "not likely to jeopardize the continued existence of any endangered species of threatened species" or result in the destruction of a species' critical habitat. Federal agencies must consult regarding any activity that may impact listed species. The issuance of an Incidental Take Permit and approval of an HCP requires that the U.S. Fish and Wildlife Service conduct formal consultation and draft a Biological Opinion regarding the Incidental Take Permit's potential impact on all listed species, candidate species, and critical habitat for those species.

6. HCPs in Development

Michigan's Karner Blue Butterfly Habitat Conservation Plan

7. Completed HCPs

Wisconsin's Karner Blue Butterfly Habitat Conservation Plan

8. Tools

  • Template HCPs

9. Selected Readings

Guidances

Federal Register Notices

Fact Sheets

Articles

Samples and Templates

Miscellaneous

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