2016-30673. Joint U.S. Fish and Wildlife Service and National Marine Fisheries Service Habitat Conservation Planning Handbook

AGENCY:

Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

ACTION:

Notice of availability.

SUMMARY:

We, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services), announce the availability of the final revised Habitat Conservation Planning (HCP) Handbook, which describes requirements, procedures, and guidance for permit issuance and conservation plan development for incidental take permits under the Endangered Species Act. The purpose of the newly revised joint HCP Handbook is to instruct the Services on how to assist applicants to develop HCPs in an efficient and effective manner, while ensuring adequate conservation of listed species. Although the Handbook is designed for the Services, it also can be useful to other HCP practitioners, such as applicants, consultants, and partners.

FOR FURTHER INFORMATION CONTACT:

Trish Adams, U.S. Fish and Wildlife Service (phone: [phone]; email: [e-mail]), or Maggie Miller, National Marine Fisheries Service (phone: [phone]; email: [e-mail]). People who use a Telecommunications Device for the Deaf (TDD) may call the Federal Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Introduction

We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the Services), announce the availability of the final revised Habitat Conservation Planning (HCP) Handbook, a joint handbook that describes requirements, procedures, and guidance for permit issuance and conservation plan development for incidental take permits under section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.; ESA). The Services issue these ESA section 10(a)(1)(B) incidental take permits and help applicants develop conservation plans as a prerequisite to obtaining these permits.

The original HCP Handbook was made available via a Federal Register notice on December 2, 1996 (61 FR 63854), and was subsequently revised by addendum, effective July 3, 2000 (65 FR 35242; June 1, 2000). On June 28, 2016, we opened a 60-day comment period for a draft revised joint HCP Handbook, announcing it via the Federal Register (81 FR 41986). During that comment period, we received 54 public comments. We now announce the final revised joint HCP Handbook, which is intended to be more streamlined and user friendly than previous editions. It presents and provides guidance on the HCP process from start to finish.

Document Availability

The final joint HCP Handbook is available at: https://www.fws.gov/​endangered/​esa-library/​pdf/​HCP_​Handbook.pdf (FWS) and http://www.nmfs.noaa.gov/​pr/​laws/​esa/​policies.htm (NMFS).

Background

The purpose of the ESA is to protect and recover threatened and endangered species and the ecosystems on which they depend. Section 9 of the ESA prohibits “take” of any fish or wildlife species listed as endangered. In addition, take of many species listed as threatened is prohibited by regulation. “Take” is defined in ESA section 3 as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Before 1982, the ESA had a mechanism for exempting Federal actions (section 7) from the prohibition on “take”; however, it did not have one for non-Federal activities, except for permits to authorize “take” from scientific research or certain other conservation actions. Thus, non-Federal parties engaging in activities that might result in “take” of listed species risked violating ESA section 9 take prohibitions. Congress recognized the need for a process to reduce conflicts between protection of 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 under ESA section 10(a)(1)(B), applicants must develop a conservation plan that meets specific requirements identified in ESA section 10 and its regulations (50 CFR 17.22 and 17.32; 50 CFR 222.25, 222.27, and 222.31). Among other requirements, the plan must specify (1) the impacts that are likely to result from “incidental take” and (2) the measures that the permit applicant will undertake to minimize and mitigate such impacts. Conservation plans under section 10(a)(1)(B) have come to be known as habitat conservation plans (HCPs). ESA section 10(a)(2)(B) provides statutory criteria that must be satisfied before the Services can issue an incidental take permit.

HCP Handbook Purpose

The purpose of the joint HCP Handbook is to instruct the Services on how to assist applicants to develop HCPs in an efficient and effective manner while ensuring adequate conservation of listed species. The HCP Handbook guides Services staff, phase by phase, through development, implementation, and environmental compliance, using streamlined approaches whenever possible. It draws on past experience to help staff understand regulations and policy and navigate the various processes for completing an HCP and issuing a permit. Although the joint HCP Handbook is designed specifically for Services staff, it also can be helpful to other HCP practitioners, such as applicants, consultants, and partners.

Summary of Changes From the 1996 Version of the HCP Handbook

The final revised HCP Handbook reflects current FWS and NMFS HCP practices, guidance, and policies; incorporates lessons from implementing the HCP program over the past 30 years; and provides guidance to assist applicants and the Services to avoid common pitfalls that can delay HCP negotiations and development or processing of incidental take permits.

The goal is to provide a joint HCP Handbook that helps streamline the process and improve efficiency of the HCP program. To accomplish this, we reorganized the HCP Handbook so that it walks Services staff and stakeholders through each part of the HCP process, from the pre-application stage through incidental take permit issuance and HCP implementation through monitoring and compliance.

Some of the most significant changes we made include the following:

(1) Introduced the concept that applicants should “go fast by starting slowly,” which emphasizes the benefits to applicants of thorough pre-planning before jumping directly into HCP development, especially for landscape-level HCPs.

(2) Focused on the vital review and administrative steps without compromising legal integrity, in order to help streamline the process.

(3) Clarified the concept of minimizing and mitigating the impacts of taking “to the maximum extent practicable.”

(4) Ensured consistency with the most recent policies, such as the revised FWS Mitigation Policy, which was announced via a Federal Register notice on November 21, 2016.

(5) Clarified the use of implementing agreements.

(6) Updated and clarified permit duration.

(7) Provided guidance on how to comply with section 106 of the National Historic Preservation Act of 1966 (54 U.S.C. 300101 et seq.).

(8) Provided guidance on addressing climate change.

(9) Updated and clarified what should be addressed through adaptive management versus changed and unforeseen circumstances.

(10) Provided guidance on when to initiate the National Environmental Policy Act (42 U.S.C. 4321 et seq.) process and intra-Service ESA section 7 consultations, and when to seek assistance from the Solicitor or General Counsel.

(11) Updated and clarified information concerning take analysis, responding to public comments, public notices, permit decision documents, compliance monitoring, and incidental take permit suspension and revocation.

Final Revisions Made to Draft Handbook and Reponses to Comments

We published a notice of availability and request for public comment on our draft joint HCP Handbook in the Federal Register on June 28, 2016 (81 FR 41986). There was a 60-day comment period ending August 29, 2016, during which we received 54 comments. We received very complex, thoughtful, and often very detailed comments. Below are our responses to the most frequent comments and those that potentially could be controversial. After considering public comments, we clarified language in the Handbook based on the input we received.

Comment 1: We received several comments requesting an extension of the 60-day comment period.

Response 1: We believe that 60 days was sufficient to allow for public input by interested parties on the draft revised HCP Handbook, as the quantity and quality of the substantive comments the Services received attest. Another reason we think the comment period was of sufficient length is that we are developing a revision to an existing Handbook rather than an entirely new product; this revised Handbook largely provides additional information that clarifies the original Handbook.

Comment 2: The draft HCP Handbook is repetitive and too complex for an applicant or project proponent.

Response 2: We have taken steps in the final editing process to cut down on the repetitive nature of the HCP Handbook, and we have also cross-referenced sections. However, our target audience is internal Services HCP staff rather than the general public. We recommend that applicants coordinate with local field offices for more specific detail and advice or guidance on their specific project needs before developing their HCPs.

Comment 3: The Services have provided a new standard for minimization and mitigation that is inconsistent with the requirements of the ESA.

Response 3: Some commenters took issue with the explanations in the Handbook, particularly in Chapter 9, of the ESA requirement that applicants must “to the maximum extent practicable, minimize and mitigate the impacts of” permitted taking. Some commenters interpreted these explanations and related discussions of the concept of “fully offset,” as creating an alternative or substitute for the ESA's statutory “maximum extent practicable” standard. However, the Handbook explains the ESA standard and clarifies the discussion that was in the 1996 Handbook. It does not establish a new or alternative standard for minimization and mitigation.

We acknowledge that the manner in which this topic was presented in the draft may be confusing. Therefore, we have modified the language to provide clearer guidance that is consistent with the ESA's “maximum extent practicable” standard. We have also revised the language to better explain how applicants can meet the ESA's “maximum extent practicable” standard.

Comment 4: The guidance on climate change in the Handbook goes too far. Applicants should not have to come up with complex models or complex global climate change scenarios.

Response 4: We have clarified that climate change effects that could impact the applicant's proposed conservation strategy and the durability of mitigation should be considered in the HCP. In addition, we changed all references of “climate change” to “climate change effects,” in order to reduce confusion. Furthermore, applicants are not responsible for addressing climate change at a global scale.

Regarding the comments concerning complex modeling, we suggest the use of various models to help applicants consider the effects of climate change while developing their conservation strategy. The Handbook does not impose a requirement to use specific models.

Comment 5: The draft HCP Handbook undermines the “No Surprises” rule.

Response 5: One of our main goals with this HCP Handbook revision was to incorporate lessons learned throughout our 30 years of program implementation in order to better address the possibility of changed or unforeseen circumstances by using tools such as adaptive management and better advance planning. With “No Surprises,” State and private landowners are assured that if “unforeseen circumstances” arise, the Services will not require the commitment of additional activities or additional restrictions beyond the level otherwise agreed to in the HCP without the consent of the permit holder.

The Handbook does not change or undermine the “no surprises” rule, but rather it encourages applicants to consider a robust list of potential changed and unforeseen circumstances that could arise during the permit term. This will ensure successful implementation of the HCP and help to ensure that the conservation strategy and mitigation plan will endure in perpetuity, as required by the incidental take permit issuance criteria. We have provided clarifying language regarding the “No Surprises” rule.

Comment 6: The term “mitigation” is used throughout the Handbook, and there is no clear description about what mitigation actually means.

Response 6: The Handbook treats mitigation in a manner consistent with the requirements and legal authorities provided by the ESA. We acknowledge that our use of the term “mitigation” in the draft was sometimes confusing. We have clarified our treatment of the ESA section 10 mitigation requirements and also provided additional background, including the definition of mitigation and general principles of Federal mitigation policy as described in the November 3, 2015, Presidential Memorandum on mitigation. These clarifications can be found primarily in Chapter 9.

Comment 7: Please clarify whether the HCP Handbook is guidance or policy.

Response 7: The HCP Handbook is a Services guidance document that includes reference to respective agency policies (and citations) where appropriate.

Comment 8: Contrary to the statements in the Handbook, the Services cannot require that all ESA-listed species that applicants expect they may take from proposed covered activities be covered by the HCP and incidental take permit. The Services should clarify that it is up to applicants to decide which species to include as covered species.

Comment 8: Ultimately, it is the Services who determine if the applicant's incidental take permit application is complete. If the application does not include all of the ESA-listed wildlife species that we are reasonably certain may be taken as a result of the covered activities, then the Services would consider the application incomplete. Therefore, to ensure the applicant provides a complete incidental take permit application, the revised final version of the Handbook states, “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 the applicant does not anticipate take or will avoid take during implementation of covered activities (e.g., inclusion of measures that will avoid potential for take).” In the view of the Services, this best reflects the language, structure, and congressional purposes of ESA section 10 and the ESA as a whole. In addition, it is important to note that section 9 prohibitions make it illegal for any person subject to the jurisdiction of the United States to take any wildlife species listed as endangered (and threatened through FWS regulations), without written authorization.

Authority: 16 U.S.C. 1531 et seq.

Dated: December 7, 2016.

James W. Kurth,

Acting Director, U.S. Fish and Wildlife Service.

Dated: December 8, 2016

Samuel D. Rauch, III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.