[Federal Register Volume 64, Number 45 (Tuesday, March 9, 1999)]
[Notices]
[Pages 11485-11490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5737]
[[Page 11485]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 981208299-8299-01]
RIN 1018-ZA03
Notice of Availability of a Draft Addendum to the Final Handbook
for Habitat Conservation Planning and Incidental Take Permitting
Process
AGENCIES: Fish and Wildlife Service, Interior, and National Marine
Fisheries Service, National Oceanic and Atmospheric Administration,
Commerce.
ACTION: Notice of document availability; request for comments.
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SUMMARY: The Fish and Wildlife Service and National Marine Fisheries
Service (the Services) are publishing for comment a Draft Addendum to
the final Handbook for Habitat Conservation Planning and Incidental
Take Permitting Process (5-point policy guidance), which is included
entirely within this notice. The purpose of the Draft Addendum is to
provide additional clarifying guidance to the Services for conducting
the incidental take permit program under section 10(a)(1)(B) of the
Endangered Species Act including developing habitat conservation plans
(HCPs). It also provides clarifying guidance to those who are applying
for an incidental take permit. We believe the draft guidance will
promote efficiency and nationwide consistency within and between the
Services and improve the HCP program.
DATES: The Services must receive comments on or before May 10, 1999. We
must receive your comments by this date for them to be considered
during preparation of a final Addendum.
ADDRESSES: Send written comments regarding this Draft Addendum to the
Division of Endangered Species, U.S. Fish and Wildlife Service, 4401
North Fairfax Drive, Room 452, Arlington, Virginia 22203 (facsimile
703/358-1735); or to the Office of Protected Resources, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, Maryland
20910 (facsimile 301/713-0376). Comments received will be available for
public inspection, by appointment, during normal business hours at the
above addresses.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service, (telephone 703/358-
2171, facsimile 703/358-1735), or Kevin Collins, Chief, Endangered
Species Division, National Marine Fisheries Service (telephone 301/713-
1401, facsimile 301/713-0376) at the above addresses.
SUPPLEMENTARY INFORMATION:
Background
The Endangered Species Act (ESA) was amended in 1982 to allow the
taking of listed species incidentally to an otherwise lawful activity
by non-Federal entities such as states, counties, local governments,
and private landowners (section 10(a)(1)(B)). To receive a permit, the
applicant submits a conservation plan (also referred to as an HCP) that
meets the criteria included in the ESA and its implementing regulations
(50 CFR parts 17 and 222). The Services recently amended those
regulations to include ``No Surprises'' assurances (February 23, 1998,
63 FR 8859). To provide internal guidance on conducting the incidental
take permit program, the Services developed the joint Handbook for
Habitat Conservation Planning and Incidental Take Permitting Process
(HCP Handbook), which was made available for public review and comment
on December 21, 1994 (59 FR 65782) and issued in final form on December
2, 1996 (61 FR 63854).
In just a few years, the HCP program has been transformed from a
relatively little-used approach under the ESA to one of its most
important and innovative conservation programs. For example, in the
first ten years of the program, the Services issued only 14 incidental
take permits. However, by September 30, 1998, the Services had issued
243 incidental take permits, and approximately 200 HCPs are currently
under development.
The section 10 incidental take process provides the Services an
opportunity to negotiate with and provide technical assistance to
applicants as they develop HCPs. Also, it provides the flexibility the
Services and applicants need to resolve issues between economic
development and species conservation. The Services continue to learn
from the HCP program which we believe has resulted in stronger HCPs
that help ensure species conservation. Based on comments received from
the public through a variety of ways (workshops, meetings, training
sessions, scientific studies, participation in the development and
implementation of HCPs, and during comment periods on various ESA
regulations and policies) as well as deliberations within the Services,
we announced, on February 17, 1998, our intention to provide a draft 5-
point policy initiative for public review and comment. The 5-points
addressed herein as the Draft Addendum are (1) biological goals and
objectives, (2) adaptive management, (3) monitoring, (4) permit
duration, and (5) public participation.
Addendum To the HCP Handbook
The Services intend to incorporate the 5-point policy initiative
into the HCP Handbook as an addendum that will provide additional
guidance on implementing the incidental take permit provisions of
section 10(a)(1)(B) of the ESA. The five sections (or 5-points) of the
Draft Addendum are contained entirely within this notice. Some of this
guidance is derived from approaches we currently apply to the HCP
process. In particular, we will use this guidance to establish overall
biological goals for species covered by HCPs, to clarify and expand the
use of adaptive management, monitoring, and to provide criteria to be
considered by the Services in determining incidental take permit
duration, and to expand the use of public participation. Nothing in
this guidance is intended to supersede or alter any aspect of Federal
law or regulation pertaining to the conservation of threatened or
endangered species.
Biological Goals and Objectives
An approved incidental take permit and associated HCP authorizes
incidental take of the covered species while meeting the issuance
criteria in section 10(a)(2)(B) of the ESA. They ensure that the
permittee will minimize and mitigate the effects of the authorized
incidental take to the maximum extent practicable through an HCP's
operating conservation program. An operating conservation program
consists of the management activities undertaken when implementing an
approved HCP to minimize and mitigate the effects of the activity on
the covered species. The biological outcome of the operating
conservation program for the covered species is the best measure of the
success of an HCP. The best HCPs clearly define the desired outcome for
the covered species and their habitats in terms of biological goals and
objectives.
Although identifying biological goals and objectives was discussed
in the HCP Handbook, the Services did not require HCPs to specifically
identify biological goals and objectives. However, most HCPs had
implied biological goals and objectives, and many recent HCPs include
explicit biological goals and/or objectives. In the future, every HCP
will include specific biological goals and objectives. Pursuant to the
underlying
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statutory and regulatory authorities, the Services will work with the
applicant to derive the biological goals and objectives by examining
the applicant's proposed action and the overall conservation needs of
the covered species and/or its habitat.
Biological goals are the broad guiding principles for the operating
conservation program; they are the rationale behind the minimization
and mitigation strategies. Specific biological objectives are subsets
of the biological goals and represent specific measurable targets for
achieving the goals of the operating conservation program. Thus
biological goals and objectives can be stated in a step-down approach
based on the best scientific information available and reflect the
conservation needs of the covered species. However, not all HCPs are
likely to need complex, multi-tiered biological goals and objectives.
The biological goals and objectives should be commensurate with the
specific impacts and duration of the HCP applicant's proposed action.
For example, low-effect HCPs generally have simple measurable
biological objectives (e.g., preserving a minimum number of forage
trees on the property) and include a relatively simple operating
conservation program and monitoring protocol.
Determination of the biological goals and objectives is integral to
the development of the operating conservation program. Conservation
measures identified in an HCP, its accompanying incidental take permit,
and/or IA provide the means for achieving the biological goals and
objectives. For example, the overall biological goal could be to ensure
population viability by maintaining habitat contiguity. The specific
measurable objective to achieve this goal may be to conserve an
adequate number of acres of habitat in a certain configuration, so that
a viable corridor is maintained. The conservation measures could
specify the number of acres and configuration. If the size and
configuration were not determinable, an adaptive management strategy
could be used, and the HCP, permit, and/or IA could list a series of
incremental steps to be taken within an agreed upon range of management
adjustments for determining and securing a viable corridor.
Available literature, State conservation strategies, candidate
conservation plans, draft or final recovery plans or outlines, and
other sources of relevant scientific and commercial information can
serve as guides in setting biological goals and objectives. Species
experts, State wildlife agencies, recovery teams, and/or scientific
advisory committees may also help develop the biological goals and
objectives. The biological goals and objectives may be either habitat
or species based. More complex multispecies and/or regional HCPs may
need an integration of habitat and species-specific goals and
objectives. Although the goals and objectives may be stated in habitat
terms, each covered species that falls under that goal or objective
must be clearly specified. Regardless of the type of goal and objective
used, the Services will ensure that the biological goals are consistent
with conservation actions needed to adequately minimize and mitigate
impacts to the covered species to the maximum extent practicable.
Explicit biological goals and measurable objectives provide clear
guidance for both the applicant and the Service as to the purpose and
direction of the HCP's operating conservation program. They create
parameters and benchmarks for developing conservation measures, provide
the rationale behind the HCP's terms and conditions, promote an
effective monitoring program, and help determine the focus of an
adaptive management strategy, if appropriate. The operating
conservation program will include those measurable actions that, when
implemented, are anticipated to meet the biological objectives.
Implementing the operating conservation program is the extent of the
permittee's obligation for meeting the biological goals and objectives.
Adaptive Management
Adaptive management strategies can assist the Services and the
applicant in developing an adequate operating conservation program and
improving its effectiveness. In the HCP program, adaptive management is
used to examine alternative strategies for meeting measurable
biological goals and objectives through research and/or monitoring, and
then, if necessary, to adjust future conservation management actions
according to what is learned.
Not all HCPs or all species covered in an incidental take permit
need an adaptive management strategy. However, an adaptive management
strategy is essential for permits that cover species that have
significant biological data or information gaps that incur a
significant risk to that species at the time the permit is issued.
Possible significant data gaps that could lead to the development of an
adaptive management strategy include, but are not limited to,
significant biological uncertainty about specific information about the
ecology of the species or its habitat (e.g., food preferences, relative
importance of predators, territory size), habitat or species management
techniques, or the degree of potential effects of the activity on the
species covered in the incidental take permit. However, there may be
some circumstances with such a high degree of uncertainty that a
species should not receive coverage in an incidental take permit at all
until additional research is conducted. If an adaptive management
strategy is used, the approved HCP must outline the agreed upon future
changes to the operating conservation program.
Habitat Conservation Plan assurances (No Surprises) and the use of
adaptive management strategies are compatible. The assurances apply
once all appropriate HCP provisions have been mutually crafted and
agreed upon and approved by the Services and the applicant. Adaptive
management strategies, if used, are part of those provisions, and their
implementation becomes part of a properly implemented conservation
plan. When an HCP, permit, and IA incorporate an adaptive management
strategy, it should clearly state the agreed upon and warranted range
of possible operating conservation program adjustments due to
significant new information, risk, or uncertainty. During HCP
negotiations, the Services and the applicant should determine the range
of acceptable and anticipated management adjustments necessary to
respond to new information after the permit is issued and describe this
procedure in the HCP, permit, or IA. This process will enable the
applicant to assess the potential economic impacts of adjustments
before agreeing to the HCP.
Often, there is a direct relationship between the level of
biological uncertainty for a covered species and the degree of risk
that an incidental take permit could pose for that species. Therefore,
the operating conservation program may need to be relatively cautious
initially and adjusted later based on new information. A practical
adaptive management strategy within the operating conservation program
of a long-term incidental take permit will include milestones that are
reviewed at scheduled intervals during the lifetime of the incidental
take permit and permitted action. If there is a relatively high degree
of risk, milestones and adjustments may need to occur early and often.
For an adaptive management strategy to be effective, it must be
integrated into a monitoring program that is designed to ensure proper
data collection and analysis that can guide appropriate adjustments in
the operating conservation program. For example, a
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habitat management objective may be defined as recruiting 95 percent
large woody debris into streams to achieve the biological goal of
maintaining properly functioning riparian habitat. The operating
conservation program could include a range of possible buffers to
achieve the biological objectives. The monitoring program would include
measuring the amount of woody debris in streams. If the results from
the monitoring program indicated that the 95-percent objective was not
being achieved, then a change from one buffer to another might be
warranted. However, the original agreed upon range of possible
management adjustments, as identified in the HCP, incidental take
permit, or IA, would need to have included the new buffer. The design
of the adaptive management strategy and the monitoring program includes
the type(s) of information needed and the triggers to institute changes
in the width of the buffer.
If existing ecological data is insufficient to determine the method
needed to achieve a biological objective, adaptive management
strategies can be used to meet objectives by obtaining information on
the species and its ecology through ongoing research, recovery
planning, and conservation planning by Federal, State, and local
agencies. For example, the Natomas Basin HCP in California has an
adaptive management strategy that incorporates ongoing research. At
this time, the U.S. Geological Survey's Biological Resources Division
is conducting a study to determine the giant garter snake's population
biology and habitat use. If additional information from the study
suggests a different approach is appropriate to meet the conservation
needs of the snake, the preserve location(s) could be modified and the
habitat type emphasized in the restoration could be changed within the
terms of the adaptive management strategy of the HCP's operating
conservation program.
If the full range of effects of a proposed project is unknown at
the time of HCP negotiation, a monitoring program combined with an
adaptive management strategy could determine the actual extent of
effects and then allow for agreed upon shifts in management strategies.
A key element of adaptive management is to establish the information
needs and link them to the management strategies and their objectives.
For example, a study to determine the specific effects of grazing on a
butterfly, based on a range of possible grazing pressures, could help
establish a long-term management strategy. The HCP's adaptive
management strategy could outline the potential range of grazing
management regimes, but since the extent of the butterfly's tolerance
of grazing may be initially unknown, the operating conservation program
could start with a more cautious grazing regime and be subject to
subsequent relaxation, if appropriate. The particular aspects of the
grazing regime could subsequently shift or relax, depending on the
results of the study.
Where specific methodologies (e.g., translocation) or strategies
have not been thoroughly tested, an adaptive management strategy can
investigate different management tools to determine the best approach.
In Utah, the Washington County HCP includes a five-year desert tortoise
translocation study. Translocation of desert tortoises from areas to be
developed is an action to minimize, not mitigate, take of desert
tortoises in the HCP. Depending on the recovery unit, translocation may
prove to be a useful tool for desert tortoise recovery in the future.
Healthy desert tortoises found within areas to be developed are
translocated to designated areas. The effects of that translocation on
the biology of the tortoises, including health status, weight gain,
reproduction, and behavior, are being monitored. If the tortoises
successfully adapt to the new location, then translocation may continue
in an isolated and currently unoccupied portion of the HCP reserve
area. Information gained on the efficacy of translocation as a
management technique, and on habitat requirements of desert tortoises
(vegetation, elevation, etc.) can subsequently be used to adjust
management in this and other HCPs in the range of the species.
HCPs may be designed to provide flexibility other than through the
use of adaptive management. The permittee or another responsible party
may need the flexibility, under different circumstances, to employ
alternative methods or strategies within the operating conservation
program to achieve the biological goals and objectives. This
flexibility also allows previously agreed upon management and/or
mitigation actions to be implemented as needed in response to changed
circumstances. The HCP, incidental take permit, and IA, if any,
describes the range of management and/or mitigation actions and the
process by which the management and funding decisions are made and
implemented.
Monitoring
Monitoring is a mandatory element of all HCPs (See 50 CFR
17.22(b)(1), 17.32(b)(1), and 222.22). When properly designed and
implemented, monitoring programs for HCPs should obtain the information
necessary to assess compliance, project impacts, and to verify progress
toward the agreed upon biological goals and objectives. Monitoring also
provides the scientific data necessary to evaluate the success of the
HCP's operating conservation programs with respect to the development
of strategies in future HCPs or other programs that contribute to the
conservation of species and their habitat. The HCP Handbook already
provides guidance for developing monitoring measures (Chapter 3,
section B.4.) and discusses reporting requirements (Chapter 6, section
E.4.). The following information further clarifies and provides
additional guidance for the monitoring component of an HCP, permit,
and/or IA.
Scope of Monitoring
The Services and the applicant must ensure that the monitoring
program provides information to: (1) evaluate compliance; (2) determine
if biological goals and objectives are being met; and (3) provide
feedback to an adaptive management strategy, if used. Biological
objectives provide a framework for developing a monitoring program that
measures progress toward meeting those biological objectives. If an
HCP, permit, and/or IA has an adaptive management strategy, it is
crucial to integrate the monitoring program into this strategy in order
to guide any necessary changes in management.
When an applicant and the Services design a monitoring program, the
scope of the monitoring measures should be commensurate with the scope
and duration of the operating conservation program and project impacts.
Some programs may be simple, while those for large-scale or regional
planning efforts may be comprehensive and track more than one component
of the HCP (e.g., habitat quality, collection of mitigation fees). The
HCP, permit, and/or IA should also tier the monitoring program to
reflect the structure of the biological goals and objectives. The
following components are essential for most monitoring protocols (the
size and scope of the HCP will dictate the actual level of detail in
each item): (1) the implementation and effectiveness of the HCP terms
and conditions (e.g., financial responsibilities and obligations,
management responsibilities, and other aspects of the incidental take
permit, HCP, and the IA, if applicable); (2) the level of incidental
take of the covered species; (3) the biological conditions resulting
from the operating conservation program (e.g.,
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change in the species' status or a change in the habitat conditions);
and (4) any informational needs of an adaptive management strategy, if
utilized. An effective monitoring program is flexible enough to allow
modifications, if necessary, to obtain the appropriate information.
In order to obtain meaningful information, the applicant and the
Services should structure the monitoring methods and standards so that
the results from one reporting period and area to another are
comparable, and the monitoring protocol responds to the question(s)
asked. Credible monitored units should reflect the biological
objective's measurable units (e.g., if the biological objective is in
terms of numbers of individuals, the monitoring program should measure
the number of individuals). The monitoring program will be based on
sound science and standard survey or other monitoring protocols
previously established should be used. Although the specific methods
used to gather necessary data may differ depending on the species and
habitat types, monitoring programs should use a multispecies approach
when appropriate.
HCP monitoring should consist of two types. The first is compliance
monitoring, where the Services monitor the permittee's implementation
of the requirements of the HCP, incidental take permit terms and
conditions, and IA, if applicable. The second is effects and
effectiveness monitoring where the permittee (or other designated
entity) examines the impacts of the authorized incidental take
(effects) and implementation of the operating conservation program to
determine if the actions are producing the desired results
(effectiveness). To monitor all aspects of an HCP effectively, and to
ensure its ultimate success, the entire monitoring program should
incorporate both types of monitoring. The monitoring program should
also clearly designate who is responsible for the various aspects of
monitoring.
Compliance Monitoring
Compliance monitoring is necessary for the Services to ensure that
the permittee is meeting the terms and conditions of the HCP, its
accompanying incidental take permit, and IA, if any. Therefore, the
Services verify adherence to the terms and conditions of the incidental
take permit, HCP, IA, and any other related agreements, and will ensure
that incidental take of the covered species does not exceed the level
authorized under the incidental take permit. FWS and NMFS regulations,
50 CFR 13.45 and 50 CFR 220.45, respectively, provide the authority for
the Services to require annual compliance reports unless otherwise
specified by the incidental take permit. Also, the Services will ensure
that the reporting requirements are tailored to assist the Services
with monitoring incidental take permit compliance (e.g., documentation
of habitat acquisition, use of photographs). These reports help
determine whether the permittee is properly implementing the terms and
conditions of the HCP, its incidental take permit, and any IA, and will
provide a long-term administrative record documenting progress made
under the incidental take permit.
In addition to reviewing reports submitted by the permittee, it is
important for the Services to make field visits to verify whether the
report data are correct and the HCP is being implemented as negotiated.
These visits allow the Services to check for information, identify
unanticipated deficiencies or benefits, develop closer cooperative ties
with the permittee, help prevent accidental violations of the
incidental take permit's terms and conditions, and assist the permittee
and Services in developing corrective actions when necessary.
The Services must track HCP implementation and the monitoring
programs. The Services' National and Regional Offices will develop a
database to track incidental take permit issuance and compliance. The
following standard fields should be included in each database to
maintain consistency throughout the Nation:
1. The permittee's name;
2. The incidental take permit number;
3. The incidental take permit duration;
4. The amount of authorized take;
5. The location of permitted action and mitigation;
6. The amount of area covered;
7. The species and habitat covered; and
8. The nature of the permitted activity.
Some suggested additional fields in the databases include:
1. A brief summary of the monitoring program;
2. The reporting frequency and the dates reports are due, received,
and reviewed;
3. The nature and effect of the incidental take; and
4. A brief description of the status of the operating conservation
program.
Individual Regional Offices may choose to expand the databases to
add fields specific to the HCPs in their region, especially for
tracking cumulative effects for future HCP analyses. For example, the
database may also record and schedule periodic audits of the HCP and
field visits. The databases should allow the Services to generate
monthly and quarterly lists identifying the completion and due dates
for operating conservation program or other HCP actions. This will help
the Services initiate the required review and analysis needed for the
monitoring program associated with each HCP.
For large-scale and/or regional HCPs, oversight committees, made up
of representatives from significantly affected entities (e.g., State
Fish and Wildlife agencies), are often used to ensure proper and
periodic review of the monitoring program, and to ensure that each
program complies with the terms and conditions of the incidental take
permit. For example, the proponents of the Karner blue butterfly HCP in
Wisconsin are proposing an auditing approach to insure incidental take
permit compliance. The lead applicant, Wisconsin Department of Natural
Resources, will initially conduct annual on-site audits of each
partner. FWS will audit the Wisconsin Department of Natural Resources
in a similar fashion. In addition, FWS will accompany the Wisconsin
Department of Natural Resources on the partner audits as appropriate to
understand partner compliance levels. Over time, Wisconsin Department
of Natural Resources will conduct the audits less frequently, if
performance levels are acceptable. Each partner will provide an annual
monitoring report and will submit these along with their audit report
to FWS annually.
Oversight committees should periodically evaluate the permittee's
compliance with the HCP, its incidental take permit, and IA, and the
success of the operating conservation program in reaching its
identified biological goals and objectives. Such committees usually
include species experts and representatives of the permittee, the
Service, and other affected agencies and entities. It may also be
beneficial to submit the committee's findings to recognized experts in
pertinent fields (e.g., conservation biologists, restoration
specialists, etc.) for review or to have technical experts conduct
field investigations to assess implementation of the terms and
conditions. Because the formation of these committees may be subject to
the Federal Advisory Committee Act (FACA), the role of the participants
and the purpose of the meetings must be clearly identified. FACA
requirements will be adhered to,
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where appropriate. Oversight committees should meet at least annually
and review implementation of the monitoring program and filing of
reports as defined in the HCP, permit, and/or IA.
Monitoring the Effects and Effectiveness of the HCP
Effects and effectiveness monitoring determine if the anticipated
impacts from the permitted project are occurring (effects) and progress
toward the biological goals and objectives of the HCP (e.g., if the
conservation strategies are producing the desired habitat conditions or
population numbers) (effectiveness). The Services should incorporate
provisions for monitoring the effects and effectiveness of the HCP
during HCP development. Effects and effectiveness monitoring may also
involve assessing threats and population trends of the covered species
as it relates to the permitted activities, as well as monitoring the
development of targeted habitat conditions. The Services should strive
to collect information that will help detect cumulative trends in
covered species populations or changes in the quality and/or quantity
of the habitat (e.g., restoration of the streamside riparian area).
Monitoring programs will vary based on whether they are for low-
effect or for regional, multispecies HCPs; however, the general
elements of each program are similar. Post-activity or post-
construction monitoring, along with a single report at the end of the
monitoring period, will often satisfy the monitoring requirements for
low-effect HCPs. For other HCPs, monitoring programs will be more
comprehensive and may include milestones, timelines, and/or trigger
points for change. Effects and effectiveness monitoring will generally
include, but are not limited to, the following:
1. Periodic accounting of authorized incidental take;
2. Surveys to determine species status, appropriately measured for
the particular operating conservation program (e.g., presence, density,
or reproductive rates);
3. Assessments of habitat condition;
4. Progress reports on fulfillment of the operating conservation
program (e.g., habitat acres acquired and/or restored); and
5. Evaluations of the operating conservation program and its
progress toward its intended biological goals.
The Services and the HCP permittee cooperatively develop the
effects and effectiveness monitoring program and determine
responsibility for its various components. In multi-party HCPs,
different parties may monitor different aspects of the HCP. The
Services must periodically review any monitoring program to confirm
that it is conducted according to their standards.
Monitoring Reports
The Services will streamline the reporting requirements for
monitoring program by requesting all reports in a single document. The
HCP, permit, or IA should specifically state the level of detail and
quantification needed in the monitoring report and tailor report due
dates to the activities conducted under the incidental take permit
(e.g., due at the end of a particular stage of the project or the
anniversary date of incidental take permit issuance). Most monitoring
programs require reports annually, usually due on the anniversary date
of incidental take permit issuance. Wherever possible, the Services
will coordinate the due dates with other reporting requirements (e.g.,
State reports) so the permittee can satisfy more than one reporting
requirement with a single report. The following represents the minimum
information frequently needed in a monitoring program and its reports:
1. Objectives for the monitoring program;
2. Effects on the covered species and/or habitat;
3. Location of sampling sites;
4. Methods for data collection and variables measured;
5. Frequency, timing, and duration of sampling for the variables;
6. Description of the data analysis and who conducted the analyses;
and
7. Evaluation of progress toward achieving measurable biological
goals and objectives and other terms and conditions as required by the
incidental take permit and/or IA.
These elements may be simplified for periods of no activity or low-
effect HCPs. If a required report is not submitted by the date
specified in the HCP or incidental take permit terms and conditions, or
is inadequate, the Services will notify the permittee. The Services
have discretion to offer the permittee an extension of time to
demonstrate compliance. The Services have examined this reporting
guidance under the Paperwork Reduction Act of 1995 and found that it
does not contain requests for additional information or an increase in
the collection requirements other than those already approved for
incidental take permits (OMB approval for FWS #1018-0094; for NMFS #
0648-0230).
Funding Monitoring Programs
The ESA and the section 10 regulations require that HCPs specify
the measures the permittee will adopt to ensure adequate funding for
the HCP. An HCP that does not contain an adequate funding commitment
from the applicant/permittee to support an acceptable monitoring
program should not be approved unless the HCP establishes alternative
funding mechanisms. The Services and the applicant should work together
to develop the monitoring program, and determine who will be
responsible for monitoring the various components of the HCP. Specific
monitoring tasks may be assigned to entities other than the permittee
(e.g., State or Tribal agencies) as long as the Services and parties
responsible for implementing the HCP approve of the monitoring
assignment. The terms of the HCP, incidental take permit, and IA may
contain funding mechanisms that provide for a public (e.g., local,
State, or Federal) or a private entity to conduct all or portions of
the monitoring. This funding mechanism must be agreed upon by the
Services and the parties responsible for implementing the HCP.
Permit Duration
Both FWS and NMFS regulations for incidental take permits outline
factors to consider when determining incidental take permit duration
(50 CFR 17.32 and 222.22). These factors include duration of the
applicant's proposed activities and the expected positive and negative
effects on covered species associated with the proposed duration
including the extent to which the operating conservation program will
increase the survivability of the listed species and/or enhance its
habitat. In determining the duration of an incidental take permit, the
Services will also consider the extent of scientific and commercial
data underlying the proposed operating conservation program for the
HCP, the length of time necessary to implement and achieve the benefits
of the operating conservation program, and the extent to which the
program incorporates adaptive management strategies.
To date, the Services have issued more than 200 incidental take
permits, varying in duration from one to 99 years. The average duration
of incidental take permits issued is 25 years; pending applications for
incidental take permits currently have an average requested duration of
30 years. The Services allow a range in incidental take permit duration
to account for both the varying biological impacts resulting from the
proposed
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activity (e.g., variations in the length of timber rotations and
treatments versus a real estate subdivision build out), and the nature
or scope of the permitted activity and operating conservation program
addressed in the HCP, permit, and/or IA (e.g., housing or commercial
developments versus long-term sustainable forestry; conservation
easements). Though not always applicable, small-scale HCPs are likely
to have short-term incidental take permits, whereas large-scale HCPs
are likely to have longer term incidental take permits because of the
time required to implement their operating conservation program and the
permittee's need for long-term assurances. Longer permits may also
ensure long-term commitments to the operating conservation program.
Public Participation
The Services intend to expand public participation in the HCP
process to provide greater opportunity for the public to assess,
review, and analyze HCPs and associated documents (e.g., National
Environmental Policy Act (NEPA) documents). As stated in the HCP
Handbook in Chapter 6.B, the Services currently require a minimum 30-
day public comment period for all HCP applications. However, the
Services recognize the concern of the public regarding an inadequate
time for the public comment period, especially for large-scale HCPs.
Therefore, the Services propose to expand the current comment period to
provide a 60-day public comment period for most HCPs. The exceptions to
a 60-day comment period would be those for low-effect HCPs and large
scale regional, or exceptionally complex HCPs. The Services believe the
current 30-day public comment period provides enough time to review
low-effect HCPs, which have a categorical exclusion from NEPA.
For large-scale, regional, or exceptionally complex HCPs, the
Services intend to expand the use of informational meetings and/or
advisory committees. In addition, the minimum comment period for these
HCPs is proposed to be 90 days, unless significant public participation
occurs during HCP development. With the extension of the public comment
periods, the recommended timeline targets for processing incidental
take permits are extended accordingly: The timeline to complete low
effect HCPs will remain up to three months; HCPs with an Environmental
Assessment (EA) will be four to six months; and HCPs with a 90-day
comment period and/or an Environmental Impact Statement (EIS) may be up
to 12 months.
During the public comment period, any member of the public may
review and comment on the HCP and the accompanying NEPA document, if
applicable. If an EIS is required, the public can also participate
during the scoping process. When practicable, the Services will seek to
announce the availability of HCPs in electronic format and in local
newspapers of general circulation. The Services will encourage
potential applicants to allow for public participation during the
development of an HCP, particularly if non-Federal public agencies
(e.g., State Fish and Wildlife agencies) are involved. Although the
development of an HCP is the applicant's responsibility, the Services
will encourage applicants for most large-scale, regional HCP efforts to
provide extensive opportunities for public involvement during the
planning and implementation process.
The Services recommend that applicants include Native American
tribes during the development of the HCP if tribal resources may be
affected. If an applicant chooses not to consult with Tribes, the
Services, under the Secretarial Order on Federal-Tribal trust
responsibilities and ESA, will consult with the affected Tribes to
evaluate the effects of the proposed HCP on Tribal trust resources and
will provide the information resulting from such consultation to the
HCP applicant prior to the submission of the draft HCP for public
comment, and will advocate the incorporation of measures that will
restore or enhance Tribal trust resources. After consultation with the
tribes and the non-federal landowner and after careful consideration of
the tribe's concerns, the Services will clearly state the rationale for
the recommended final decision and explain how the decision relates to
the Services' trust responsibility.
Public Comments Solicited
The Services will issue a final Addendum to the HCP Handbook based
upon consideration of information and recommendations received from all
interested parties. Therefore, the Services are soliciting comments,
recommendations, or suggestions from the public, other concerned
government agencies, the scientific community, industry, or any other
interested party about this Draft Addendum.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: November 2, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
Dated: January 28, 1999.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-5737 Filed 3-8-99; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P
