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Habitat Conservation Plan Advisory Committee Handbook 11/04/1996 i 1....ibiiii., cor,servi.ori pin Advisory comm.i.i.ee (HcpAc) / m,,,„ q 3' k � r' `'^ ""'� ' f per' :a f tl . . ;-, * /ka, i,,., 1,4 * W'i *V. 0 41601r,...... *' *tit" . ift,#* if ,,,,,,'.110, . ,ilitt°A . 1 ' as *'4` ... s , rt . 9G 4kk*P r 444,4, 7 tutit ft ' '' ' , ' ' 4 ...'.. l' ,o.-. t, t..c: t ''. t'4**, ' '4 ‘i ..t' .e , ,:..x.,,,.. . , . 4 .,'.° ' i * . t''',.t't - lt 4.0.' 1 '1 .`f. f't:' ''''' ,' - - IA ' -, -f 4e,, ...' I, . ., t, ..=, !,, t 0,,,,* it -1* * . 1t 3 *334 �'. i 1t I' t et "* , HABITAT CONSERVATION PLANNING AND INCIDENTAL TAKE PERMIT PROCESSING HANDBOOK November 4, 1996 U.S. Department of the Interior Fish and Wildlife Service U.S. Department of Commerce National Oceanic and Atmospheric Administration National Marine Fisheries Service TABLE OF CONTENTS Section Page Preface I Chapter 1 - The ESA and Incidental Take Permits 1-1 A. Purpose of the Habitat Conservation Planning Process 1-1 B. Purpose of the Handbook 1-1 C. Background and Legal Authority 1-1 D. Coordination Between FWS and NMFS 1-3 E. Overview of the Incidental Take Permit Process 1-4 1. When is a Permit Needed? 1-4 2. What Kinds of Activities Can Be Authorized? 1-5 3. Phases of the Process 1-5 4. Compliance With NEPA and Section 7 of the ESA 1-6 5. Guiding Principles 1-7 F. Overview of Permit Processing Requirements 1-7 1. Expeditious Processing of Permit Applications 1-8 2. The Low-effect HCP Category 1-8 3. Processing Low-Effect Permit Applications 1-9 4. Summary of Permit Processing Requirements 1-9 5. Target Permit Processing Times 1-10 6. Benefits of Regional Conservation Planning 1-14 G. Helpful Hints 1-15 Chapter 2 - Overview of FWS and NMFS Roles and Responsibilities 2-1 A. Delegation of Permit Authority 2-1 B. Roles and Responsibilities 2-1 1. Applicant 2-1 2. Field Office 2-2 3. Regional Office 2-3 4. Washington Office 2-7 5. Solicitor's Office/General Counsel Office 2-7 Chapter 3 - Pre-application Coordination and HCP Development 3-1 A. Getting Started 3-1 1. Who Can Apply for a Section 10 Permit? 3-1 2. Determining the Appropriate Applicant 3-2 3. Steering Committees 3-3 4. The Services'Role on Steering Committees &HCP Efforts 3-4 5. Preparing the HCP Species List 3-7 6. Involving Other Federal and State Agencies 3-8 7. Treaty Rights and Trust Responsibilities 3- B. Developing the HCP 3- 1. Mandatory Elements of an HCP 3- n TABLE OF CONTENTS (CONT.) Section Page 2. Identifying Project Impacts 3- a. Delineation of HCP Boundaries 3- b. Collection and Synthesis of Biological Data 3- c. Determination of Proposed Activities 3- d. Determining Anticipated Take Levels 3- e. Coordinating the HCP With Section 7 of the ESA 3- f. Addressing Indirect Project Effects 3- g. Consideration of Plants in the HCP and Permit 3- i h. Addressing Effects on Critical Habitat 3- 3. Mitigation Programs & Standards 3- a. Regulatory Standards & Relationship to Recovery 3- b. Must an HCP Benefit the Species? 3- c. Mitigation For Habitat Loss 3- d. Funding Recovery Measures as Mitigation 3- e. Mitigation for Small-Scale, Low-Effect Projects 3- f. Consistency in Mitigation Standards 3- g. Adaptive Management 3- 4. Monitoring Measures 3- 5. Unforeseen/Extraordinary Circumstances 3- a. The "No Surprises" Policy 3- b. HCP Amendments 3- 6. Funding 3- 7. Analyzing Alternatives 3- 8. Additional Measures-Implementing Agreements 3- C. Alternative HCPs 3- 1. Addressing Species Through Habitat-Based HCPs 3- 2. Programmatic HCPs 3- D. Addressing Migratory Birds and Eagles (FWS Only) 3- E. Coordinating HCPs With National Wildlife Refuges(FWS Only) 3- F. "Safe Harbor" Policy 3- Chapter 4 - Treatment of Unlisted Species 4-1 A. Addressing Unlisted Species in the HCP 4-1 1. Deciding How to Address Unlisted Species 4-2 2. Addressing Unlisted Species in the HCP and Permit 4-2 3. Standards for "Covering" Species Under a Permit 4-4 B. Challenges in Treating Unlisted Species 4-4 Chapter 5 -Environmental Analysis and Documentation 5-1 A. General Information 5-1 n TABLE OF CONTENTS (CONT.) Section Page 1. Scope of the NEPA analysis 5-1 2. Categorical Exclusions 5-2 3. Environmental Assessments 5-3 a. Use of EAs When Mitigation Reduces Significant Impacts 5-3 b. Programmatic EAs 5-4 4. Environmental Impact Statements 5-4 B. Techniques for Streamlining Section 10 and NEPA Planning 5-5 1. Combining NEPA/HCP Documents 5-5 2. Joint-Federal State Process 5-5 3. Incorporation by Reference 5-6 C. Internal Service Guidance and Assistance 5-6 Chapter 6 -Application Requirements and Processing Procedures 6-1 A. Guidance to the Applicant 6-1 1. What to Provide the Applicant 6-1 2. Application Form and Instructions 6-2 3. Name of Applicant 6-2 4. Application Fee 6-2 5. Providing the General Permit Requirements 6-3 B. Processing the Application 6-3 1. Processing Times 6-3 2. Timing of Document Preparation and Submission 6-4 a. Description of Required HCP Documents 6-4 b. Submitting the Complete Application Package 6-5 c. Certification of Application by the Field Office 6-6 d. Timing of Other Application Documents 6-6 e. Labeling the Documents as Draft/Final 6-7 f. Dating Section 10 Documents 6-8 g. Finalizing the Implementing Agreement 6-8 3. Who Submits the Application Package? 6-9 4. Judging the Application for Completeness 6-9 5. Problems Identified During HCP Development 6-9 6. FWS Law Enforcement LEMIS System 6-10 C. Internal FWS/NMFS Review 6-10 1. Early Coordination Between Field and Regional Office 6-10 2. Distribution of the Application Package 6-12 TABLE OF CONTENTS (CONT.) Section Page 3. Internal Section 7 Consultation 6-13 a. Role of the Section 7 Consultation 6-13 b. Who Conducts the Section 7 Consultation? 6-14 c. Conferences on Proposed Species 6-15 d. Biological Opinion Formats/Requirements 6-16 4. Legal Review of the Application Package 6-19 5. Preparing the Signature Package 6-19 6. New Policies or Legal Questions 6-20 D. Federal Register Notices of Receipt 6-20 1. Timing of the Notice 6-20 2. Content of the Notice 6-21 3. Submission of the Notice 6-21 4. Providing HCP Documents to the Public/FOIA Considerations 6-22 5. Objection to the Permit 6-24 6. Notice of Permit Issuance, Denial, or Abandonment 6-24 E. Permit Issuance Conditions &Reporting Requirements 6-25 1. Permit Conditions 6-25 2. Permit Duration 6-25 3. Distribution of Copies of the Permit 6-26 4. Reporting Requirements 6-26 F. Permit Denial, Review, and Appeal Procedures 6- 1. Permit Denial 6-27 2. Review Procedures 6-27 3. Requests for Reconsideration 6-27 4. Appeal 6-28 5. Copies of Denials 6-28 G. Permit Amendments 6-29 H. Permit Renewal 6-29 I. Permit Transferals 6-30 J. Permit Violations, Suspensions, and Revocations 6-31 1. Notifying Law Enforcement 6-31 2. Permit Suspension/Revocation 6-32 Chapter 7 - Issuance Criteria for Incidental Take Permits 7-1 A. General Permit Issuance Criteria 7-1 B. Endangered/Threatened Species Permit Issuance Criteria 7-2 1. Taking Will Be Incidental 7-2 a. Authorizing Take Associated With Mitigation Activities 7-2 b. Authorizing Take for Scientific Purposes 7-3 2. Applicant Will Minimize and Mitigate Impacts 7-3 3. Will Ensure Adequate Funding/Unforeseen Circumstances 7-4 TABLE OF CONTENTS (CONT.) Section Page 4. Will Not Reduce Likelihood of Survival & Recovery 7-4 5. Other Measures Required Will Be Provided 7-5 6. Assurances That the HCP Will Be Implemented 7-5 Chapter 8 -Definitions 8-1 n LIST OF APPENDICES Appendix 1: Section 10 Regulations: 50 FR 39681, September 30, 1985 (FWS); 55 FR 20603, May 18, 1990 (NMFS). Appendix 2: Reference List of Publications on HCPs and Conservation Biology Appendix 3: Example of an HCP Memorandum of Understanding Appendix 4: "Template" Implementing Agreement Appendix 5: FWS Guidance on Addressing Migratory Birds and Eagles (FWS Only) Appendix 6: FWS Guidance on Integrating HCPs With National Wildlife Refuges (FWS Only) Appendix 7: Safe Harbor Policy Appendix 8: Example of an Integrated HCP/EA Appendix 9: FWS Fish and Wildlife Permit Application Form 3-200 With Privacy Act Notice, Instructions, and Notice of Permit Application Fee; and NMFS Incidental Take Application Instructions Appendix 10: General Permit Conditions: 50 CFR Part 13 (FWS); 50 CFR Parts 217, 220, and 222 (NMFS) Appendix 11: Endangered and Threatened Species Permit Conditions: 50 CFR Part 17 excerpts (FWS); 50 CFR 222.22 (NMFS) Appendix 12: List of FWS/NMFS Washington,D.C. and Regional Offices Appendix 13: Examples of a Set of Findings Appendix 14: FWS Director's Order No. 11 and Examples of an Environmental Action Memorandum Appendix 15: Federal Fish and Wildlife Permit(Form 3-201) Appendix 16: Examples of Federal Register Notice of Receipt of Permit Application and Notice of Availability of NEPA Document Appendix 17: Examples of Issued Incidental Take Permits Appendix 18: "Template" Federal Register Notices of Permit Issuance P'0�?pi T OIy �7, asMos9yF�� o"► z, -� c§ 0 A R it; Io • 3. o� �MENT OF G J FOREWORD It gives us great pleasure to introduce this new Habitat Conservation Planning Handbook. It is the culmination of much hard work by dedicated U.S.Fish and Wildlife Service and National Marine Fisheries Service employees. It represents a great deal of collaboration with our conservation partners, and an important milestone in our ongoing efforts to make the Endangered Species Act(Act)more efficient and effective while providing voluntary opportunities for private landowners to be involved in conservation. With the streamlining measures and other innovations provided in this handbook,the Habitat Conservation Planning (HCP) process ranks as one of our greatest successes in seeking ways to reduce the Act's regulatory burden on private landowners while addressing the habitat needs of listed species. HCPs reduce conflicts between listed species and economic use or development activities, allowing for the development of"creative partnerships"between the public and private sector which make the process work for both landowners and species. We have taken a process that was rarely used and have turned it into an increasingly utilized and successful way to provide private owners of natural resources with the creative flexibility and certainty they need to plan their activities while providing protection for listed species. n Species benefit too,and that is another strength of this process. It often expands the focus from conserving a single species to looking at the ecosystem as a whole,and that can often keep species from declining long before they may need to be considered for listing. Thus, the HCP process provides many opportunities for willing owners of natural resources to make positive contributions to the conservation of species and their habitats. This allows landowners to become true partners in the conservation of our precious natural heritage. We would like to take this opportunity to express our heartfelt thanks for the hard work and dedication of all those who have made the development of the HCP process and this handbook possible. I especially want to thank those States, county and private natural resource owners who have become conservation partners with our Departments through this process. This document will be an important tool in threatened and endangered species conservation for our Nation. Bruce Babbitt D. James Baker Secretary Under Secretary for Oceans and Atmosphere Department of the Interior National Oceanic and Atmospheric Administration PREFACE The habitat conservation planning(HCP)program under section 10(a)(1)(B) of the Endangered Species Act(ESA)has grown rapidly in recent years. In the first 10 years of the program (1983- 1992), 14 incidental take permits were issued. As of the end of August, 1996, 179 incidental take permits had been issued and approximately 200 HCPs were being developed. In just a few years the HCP process has been transformed from a relatively little used option under the ESA to one of its most important and innovative conservation programs. Another pattern has begun to emerge, as evidenced by the growing number of HCPs being developed and by the size of the conservation planning areas involved. As of late 1995, most HCPs approved were for planning areas less than 1,000 acres in size. However, of the HCPs being developed as of early 1996, approximately 25 exceed 10,000 acres in size, 25 exceed 100,000 acres, and 18 exceed 500,000 acres. This suggests that HCPs are evolving from a process adopted primarily to address single developments to a broad-based, landscape level planning tool utilized to achieve long-term biological and regulatory goals. It also suggests that the underlying spirit of the HCP process has begun to take hold. These large-scale, regional HCPs can significantly reduce the burden of the ESA on small landowners by providing efficient mechanisms for compliance, distributing the economic and logistic impacts of endangered species conservation among the community, and bringing a broad range of landowner activities under the HCPs' legal protection. In addition, the Services have helped reduce the burden on small landowners and have made it easier for them to be involved in the HCP process through streamlining measures in the HCP process. The HCP process was patterned after the San Bruno Mountain HCP--an innovative land-use planning effort in California's San Francisco Bay area that began in the mid-1970s with a classic conflict between development activities and endangered species protection and culminated in the issuance of the first incidental take permit in 1983. What made the San Bruno Mountain case unusual was that it attempted to resolve these conflicts through negotiation and compromise rather than continued litigation. This fundamental approach was endorsed and codified by Congress when it incorporated the HCP process into the ESA in 1982. One of the great strengths of the HCP process is its flexibility. Conservation plans vary enormously in size and scope and in the activities they address--from half-acre lots to millions of acres, from forestry and agricultural activities to beach development, and from a single species to dozens of species. Another key is creativity. The ESA and its implementing regulations establish basic biological standards for HCPs but otherwise allow the creative potential of HCP participants to flourish. As a result,the HCP program has begun to produce some remarkably innovative natural resource use and conservation programs. The challenge of balancing biology with economics is a complex one, but is fundamental to the HCP process. Policy and procedure have at times frustrated HCP users and hampered the program's ability to meet its full potential. The HCP process was historically viewed as procedurally difficult;permit approvals took too long in some cases and long-term regulatory certainty under HCPs was widely desired by applicants but rarely available. However,the U.S. Fish and Wildlife Service and National Marine Fisheries Service have made significant improvements in the HCP program in recent years. We have increased section 10 staff and improved guidance about section 10 objectives and standards, clarified and streamlined permit processing requirements, and substantially raised the certainty provided to HCP permittees. This handbook incorporates all these improvements and reflects updated policies and procedures in the HCP program. The handbook is organized as follows. Chapter 1 provides a summary and overview of the HCP process. Chapter 2 summarizes the roles of the applicant and the Fish and Wildlife Service and National Marine Fisheries Services'Field, Regional, and Washington Offices. Chapter 3 explains the process of developing an HCP. Chapter 4 explains how unlisted species may be addressed in an HCP. Chapter 5 deals with section 10 NEPA requirements. Chapter 6 explains how to process and review an incidental take permit application. Chapter 7 explains the section 10 permit issuance criteria. Finally, Chapter 8 contains a glossary of important terms used throughout the handbook. The handbook also contains numerous appendices, which include pertinent Federal regulations and policies; a reference list of publications about HCPs; "template" HCP documents that can be used as guides; and examples of HCP documents such as a permit application form and Federal Register notices. The handbook is organized to make information readily available. All important issues have labeled sections or subsections. The reader can find specific subjects of interest by scanning the Table of Contents and turning to the appropriate page. Acting Director U.S. Fish and Wildlife Service Assistant Administrator for Fisheries National Marine Fisheries Service ii n E'-I X LY3 er,-Y" �u�=tiIpp ,e U.S.Fish&Wildlife Service/National Oceanic &Atmospheric Administration a ,,,, Addendum to the HCP Handbook Executive Summary The joint Fish and Wildlife Service/National Marine Fisheries Service addendum to the HCP handbook(the"5-point policy") focuses on the expanded use and integration of five components of the Habitat Conservation Planning program,namely (1)biological goals,(2)adaptive , . managem , monitoring, pmit duration,andent (5)(3)public participatio(4) er n.The , 414r , purpose of this addendum is to promote nationwide efficiency,effectiveness,and consistency within and between the ' • , Services,and to enhance the HCP program nationwide.These new initiatives are based � 9` � � � on curent operating conservation programs (i.e.,habitat conservation measures)the i1Services and permittees are incorporating into HCPs,lessons learned, ��„ recommendations received,and methods the Services are using to strengthen the HCP process to help ensure species conservation. The Services'new guidance was published in the Federal Register on June 1,2000. .' Biological Goals and Objectives n, The Services will work with the applicant to " derive biological goals that are commensurate with the scope of the Young nor theaa I spotted owls.USFWS photo proposed action to ensure that they are consistent with conservation actions needed. Biological goals are the broad guiding Adaptive Management adaptive management strategy include,but principles for the operating conservation Adaptive management is an integrated are not limited to,significant biological program;they are the rationale behind the method for addressing uncertainty.It can be uncertainty about specific information about minimization and mitigation strategies. used to examine alternative strategies for the ecology of the species or its habitat(e.g., Specific biological objectives are the meeting the biological goals and objectives food preferences,relative importance of measurable targets for achieving the of an HCP The Services are already predators,territory size),habitat or species biological goals. incorporating adaptive management management techniques,or the degree of provisions into the operating conservation potential effects of the activity on the The Services believe that HCPs will be plans of many HCPs(See the Services' species covered in the incidental take strengthened if they have biological goals HCP Handbook,Chapter 3).In an HCI? permit. and objectives integrated into the operating adaptive management willinclude mutually conservation program.The practice of agreed upon boundaries for its application. Monitoring defining biological goals for HCPs facilitates Monitoring serves not only to ensure the development of conservation strategies Not all HCPs or all species covered in an compliance and gauge the effect and that ensure that the implementation of the incidental take permit need an adaptiveeffectiveness of HCPs,it also informs HCP will succeed.These goals and management strategy.However,an adaptive choices under adaptive management objectives must be based on the best management strategy is essential for HCPs provisions,assists in redefining biological t scientific information available and reflect that would otherwise pose a significant risk goals,and provides the Services with an i the conservation needs of the covered to the species due to significant data or important part of the information used to species for an operating conservation information gaps.Possible significant data conduct range-wide assessments of species program. gaps that could lead to the development of an status and baseline conditions. There are at least two types of HCP monitoring:(1)compliance monitoring, "' which monitors the permittee's -4 implementation of the requirements of the ; x. m HCP permit,and/or Implementation Agreement;and(2)effects and effectiveness ' • ,. monitoring,which investigates the impacts s : . of the authorized take and the operating 7 4: _,,,., * 1'-, conservation program implemented to verify ,:s.' _ progress toward the biological goals and � " ''...,7< 4.,,,,,., 1. objectives.A monitoring ro ram should ' incorporate both types in order to examine effectively all aspects of an HCP and ensure the ultimate success of the HCP of .4 7 k 4 Monitoring measures should be �� _ commensurate with the scope and duration . of the project and the biological significance ��� ` «� of its effects.The monitoring program should be flexible so that it can be modified, , if necessary,based on the need for �' ' 4 . � additional information.In order to obtain �° meaningful information,the applicant and the Services should structure monitoring Gopher tortoise. USFWS photo by Harold Waalqu1st methods and standards so that the results from one reporting period and area to another are comparable,and the monitoring length of time necessary to implement and Services also intend to expand the use of protocol responds to the question(s)asked. achieve the benefits of the operating informational meetings to provide a forum Credible monitored units should reflect the conservation program,and the extent to for answering questions that members of biological objective's measurable units(e.g., which the program incorporates adaptive the public may have regarding HCPs that if the biological objective is in terms of management strategies. are large-scale regional plans and/or may be numbers of individuals,the monitoring controversial.Although the development of program should measure the number of Public Participation an HCP is the applicant's responsibility,the �� individuals).The monitoring program must The Services intend to expand public Services will encourage applicants for most be based on sound science and standard participation in the HCP process in order to large-scale,regional HCP efforts to provide survey or other protocols previously provide the public with a greater extensive opportunities for public established should be used. opportunity to assess,review,and critique involvement during the planning and plans as they are being developed.The implementation process. Permit Duration Services currently require a 30-day public To date,the Services have issued more than comment period for all formal HCP Copies of the addendum maybe viewed and 300 permits,with varying lengths in permitapplications,however,the Services printed from the HCP website at http.// duration.Having a range of permit recognize the concern of the general public endangered fws.gov/hcp/.Copies may also durations is important,as it takes into regarding the length of the public comment be obtained by calling the FWS Division of account both the biological impacts resulting period,especially for large-scale HCPs.The Endangered Species at 703/358 2171 or the from the proposed land use(e.g.,variations Services will provide a 60-day public NMFS Office of Protected Resources at in the length of timber rotations and comment period for most HCPs.The 301/7131401. treatments)and economic developmental exceptions to a 60-day comment period differences(e.g.,housing development would be those for low-effect HCPs and HCPs versus forestry-related HCPs). large scale regional,or exceptionally complex HCPs.The Services believe the Both FWS and NMFS regulations for current 30-day public comment period incidental take permits outline factors to provides enough time to review amendments consider when determining incidental take and low-effect HCPs.In some cases, permit duration(50 CFR§§17.32 and individual permits under a programmatic 222.307).These factors include duration of HCP may not need additional public review the applicant's proposed activities and the since the larger,programmatic HCP would expected positive and negative effects on have undergone more extensive review In covered species associated with the addition,the minimum comment period for proposed duration including the extent to these HCPs is proposed to be 90 days, which the operating conservation program unless significant public participation will increase the survivability of the listed occurs during HCP development. species and/or enhance its habitat.In determining the duration of an incidental In addition to extending the public comment U.S. Fish & Wildlife Service take permit,the Services will also consider period,the Services will also seek to National Oceanic & Atmospheric PTh the extent of scientific and commercial data announce the availability of HCPs in local Administration underlying the proposed operating newspapers of general circulation and in conservation program for the HCP the electronic format on an increased basis.The May 2000 CHAPTER 1 THE ENDANGERED SPECIES ACT AND INCIDENTAL TAKE PERMITS A. Purpose of the Habitat Conservation Planning Process The purpose of the habitat conservation planning process and subsequent issuance of incidental take permits is to authorize the incidental take of threatened or endangered species, not to authorize the underlying activities that result in take. This process ensures that the effects of the authorized incidental take will be adequately minimized and mitigated to the maximum extent practicable. B. Purpose of the Handbook The purpose of this handbook is to guide the U.S. Fish and Wildlife Service (FWS)and National Marine Fisheries Service (NMFS) (collectively,the Services) in processing incidental take permit applications and participating in associated habitat conservation planning efforts. The goals of the handbook are threefold: (1)to ensure that the goals and intent of the conservation planning process under the Endangered Species Act are realized; (2)to establish clear standards that ensure consistent implementation of the section 10 program nationwide; and(3)to ensure that FWS and NMFS offices retain the flexibility needed to respond to specific local and regional conditions and a wide array of circumstances. Although intended primarily as internal agency guidance,this handbook is fully available for public evaluation and use, as appropriate. C. Background and Legal Authority Section 9 of the Endangered Species Act of 1973, as amended (ESA),prohibits the "take" of any fish or wildlife species listed under the ESA as endangered; under Federal regulation, take of fish or wildlife species listed as threatened is also prohibited unless otherwise specifically authorized by regulation. Take, as defined by the ESA, means "to harass, harm, pursue, hunt, shoot, wound, kill,trap, capture, or collect, or to attempt to engage in any such conduct." In the 1982 amendments to the ESA, Congress established a provision in section 10 that allows for the "incidental take" of endangered and threatened species of wildlife by non- Federal entities. Incidental take is defined by the ESA as take that is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Prior to 1982, non-Federal parties undertaking otherwise lawful activities that were likely to result in take of listed species risked violating the section 9 prohibition but had no recourse under the law for exemption. Up to that time, only take occurring during scientific research and other conservation actions could be authorized under the ESA. �"� 1-1 • The "incidental take permit" process was established under section 10(a)(1)(B)of the ESA /" precisely to resolve this difficulty. Under this provision the Secretary of the Interior and Secretary of Commerce may,where appropriate, authorize the taking of federally listed wildlife or fish if such taking occurs incidentally during otherwise legal activities. The Secretaries of Interior and Commerce subsequently charged the Directors of the FWS and NMFS,respectively, with regulating the incidental taking of listed species under their jurisdiction. Section 10(a)(2)(A) of the ESA requires an applicant for an incidental take permit to submit a "conservation plan" that specifies, among other things, the impacts that are likely to result from the taking and the measures the permit applicant will undertake to minimize and mitigate such impacts. Conservation plans under the ESA have come to be known as "habitat conservation plans" or "HCPs" for short. These terms are used interchangeably throughout this handbook. The terms incidental take permit, section 10 permit, and section 10(a)(1)(B)permit are also used interchangeably in the handbook. Section 10(a)(2)(B) of the ESA provides statutory criteria that must be satisfied before an incidental take permit can be issued. Thus, section 10, as revised, provides a clear regulatory mechanism to permit the incidental take of federally listed fish and wildlife species by private interests and non-Federal government agencies during lawful land,water, and ocean use activities. However, Congress also intended this process to reduce conflicts between listed species and economic development activities, and to provide a framework that would encourage "creative partnerships" between the public and private sectors and state, municipal, and Federal agencies in the interests of endangered and threatened species and habitat conservation (H.R. Rep. No. 97-835, 97th Congress, Second Session). This is critically important, for Congress was not instituting merely a permit procedure but a process that, at its best,would integrate non-Federal development and land use activities with conservation goals, resolve conflicts between endangered species protection and economic activities on non-Federal lands, and create a climate of partnership and cooperation. Congress also intended that HCPs could include conservation measures for candidate species,proposed species, and other species not listed under the ESA at the time an HCP is developed or a permit application is submitted. This can benefit the permittee by ensuring that the terms of an HCP will not change over time with subsequent species listings. It can also provide early protection for many species and, ideally,prevent subsequent declines and in some cases the need to list such species. Congress modeled the 1982 section 10(a) amendments after the conservation plan developed by private landowners and local governments to protect the habitat of two federally listed butterfly species on San Bruno Mountain in San Mateo County, California. Congress also 1-2 recognized that the circumstances surrounding the San Bruno Mountain HCP would not be universally applicable and that each HCP would be unique to its own factual setting. The FWS published its final regulations for implementing the section 10 permit program in the Federal Register on September 30, 1985 (50 FR 39681-39691);NMFS published final regulations for the program on May 18, 1990 (55 FR 20603; see Appendix 1 for both regulations). However, because the process applies to a wide variety of projects and activities,the Services declined to promulgate "exhaustive, 'cookbook' regulations . . . detailing every possible element that could be required in conservation plans." Rather,the section 10 permit regulations reiterate ESA requirements and provide a framework for issuance and management of permits. Beyond that it is Service policy to promote "flexibility and ingenuity" in working with permit applicants and developing HCPs under the section 10 process. In keeping with this policy,this handbook establishes detailed but flexible guidelines to be used in developing HCPs,processing section 10(a)(1)(B) permit applications, and managing ongoing HCP programs. It also attempts to correct the inevitable difficulties identified during the first 10 years of the section 10 program and to make it more efficient in the future. However, nothing in this handbook is intended to supersede or alter any aspect of Federal law or regulation pertaining to the conservation of endangered species. D. Coordination Between FWS and NMFS FWS and NMFS share joint authorities under the ESA for administering the incidental take permit program. Generally,the FWS is responsible for terrestrial and freshwater aquatic species while NMFS is responsible for listed marine mammals, anadromous fish, and other living marine resources. Thus, HCP efforts in which FWS is involved tend to be land-based, while HCPs in which NMFS is involved are generally aquatic, addressing either marine or anadromous species. NMFS also issues permits for incidental taking of listed fish species during other activities such as state-run hatchery operations and commercial or recreational fisheries. In some cases these responsibilities overlap and the agencies work closely together--for example, in the Pacific Northwest many HCPs are being developed which address terrestrial species and anadromous fish in the same planning effort. This handbook is intended to serve the needs of each agency's incidental take permit program. Although to date the FWS has had a more active program, and some sections consequently are written more from the FWS's land-based perspective, it has been and is the intention of both agencies to develop and use the handbook jointly. It is also their intention to cooperate fully in joint administration of the section 10 program. However, there are procedural differences between the two agencies. Chapters 2 and 6 describe certain differences between FWS and NMFS with respect to organizational structure, permit delegation authority, and applicable Federal regulations, and Chapters 3 and 4 contain some information applicable to FWS only. All such differences are clearly indicated and unless �"'� 1-3 otherwise noted the policies and procedures described in the handbook apply jointly to FWS and NMFS. E. Overview of the Incidental Take Permit Process 1. When is a Permit Needed? The starting point for the section 10(a)(1)(B)permit process is a determination that "take" is likely to occur during a proposed non-Federal activity and a decision by the landowner or project proponent to apply for an incidental take permit. Federal activities and non-Federal activities that receive Federal funding or require a Federal permit(other than a section 10 permit)typically obtain incidental take authority through the consultation process under section 7 of the ESA. Thus,the HCP process is designed to address non-Federal land or water use or development activities that do not involve a Federal action that is subject to section 7 consultation. In some cases,however, Federal agencies besides FWS or NMFS may be integrally involved in HCP efforts. In these cases, the action to be conducted by the Federal agency during the implementation of the HCP should be included as an additional element to be consulted on through the section 7 consultation conducted for the HCP. This allows the Services to conduct one formal consultation that incorporates the actions for the HCP and any related and supportive Federal actions into one biological opinion. The biological opinion developed for the HCP should also incorporate the necessary biological analysis on the Federal action as well as the actions in the HCP to help eliminate duplication. Thus,the single biological opinion issued by the Services would address both the Federal action and the non-Federal action, and it would include an incidental take statement that authorizes any incidental take by the Federal agency and an incidental take permit that authorizes any incidental take by the section 10 permittee. See Chapter 3, Section A.1 and A.6 for more information. Before determining whether a section 10 permit is needed, the applicant,with Service technical assistance, should consider whether take during proposed project activities can be avoided. This is sometimes possible through relocation of project facilities,timing restrictions, or similar measures, depending on the nature and extent of the proposed activity and the biology of the species involved. If take cannot be avoided,the Services will recommend that an incidental take permit be obtained. The decision to obtain a permit lies with the prospective permit applicant. However, should the applicant ultimately elect not to obtain a permit, and an unauthorized take attributable to project activities occurs, the responsible individuals or entity would be liable under the enforcement provisions of the ESA. 2. What Kinds of Activities Can be Authorized? 1-4 A section 10(a)(1)(B)permit only authorizes take that is incidental to otherwise lawful activities. In this context, "otherwise lawful activities" means economic development or land or water use activities that,while they may result in take of federally listed species, are consistent with other Federal, state, and local laws. Take that occurs during other types of activities--i.e.,take for scientific purposes,to enhance the propagation or survival of a listed species, or for purposes of establishment and maintenance of experimental populations--must be authorized by a permit under section 10(a)(1)(A) of the ESA (e.g., "Safe Harbor"or "recovery" permits). In some cases, however, take in the form of capture or harassment can be authorized under an incidental take permit, if the purpose of such actions is to minimize more serious forms of take (e.g., death or injury)or to conduct monitoring programs during activities authorized by the permit(see Chapter 7, Section B.1) 3. Phases of the Process. Once the decision to obtain a permit has been made,the section 10 process consists of three phases: (1)the HCP development phase; (2)the formal permit processing phase; and(3)the post-issuance phase. The HCP development phase is the period during which the applicant's project or activity is integrated with species protection needs through development of the HCP. This phase is typically conducted by the applicant with technical assistance from FWS or NMFS Field Office and ends when a "complete application package" is forwarded to the appropriate permit issuing office. A complete application package consists of a permit application form, fee (if required), a completed HCP, a draft National Environmental Policy �-.. Act(NEPA) document(if required), and in some cases an Implementing Agreement(see Chapter 6, Section B.2). The permit application processing phase involves review of the application package by the appropriate Regional Office or, in some cases,the NMFS Washington, D.C., office; announcement in the Federal Register of the receipt of the permit application and availability of the NEPA analysis for public review and comment; intra-Service consultation under section 7 of the ESA; and determination whether the HCP meets ESA statutory issuance criteria. If FWS or NMFS determines, after considering public comment,that the HCP is statutorily complete and that permit issuance criteria have been satisfied, it must issue the permit. The Field Office and Regional Office should coordinate regularly throughout these first two phases of the HCP process to avoid any renegotiation of the terms of the HCP by the Regional Office (see Chapter 6, Section C.1). The post-issuance phase is the period during which the permittee and other responsible entities implement the HCP and its monitoring and funding programs. Service responsibilities, in addition to any identified in the HCP, are to monitor the permittee's compliance with the conservation program and other terms and conditions of the permit, and the HCP's long-term progress and success. When a permit is issued, it is also Service policy to notify the public of the outcome of the permit application through a Federal Register notice. An individual notice may be published for each permit decision, or a quarterly or 1-5 biannual list of permit decisions for that period may be published. There are also specific notification requirements under NEPA. 4. Compliance With NEPA and Section 7 of the ESA. Issuance of an incidental take permit is a Federal action subject to National Environmental Policy Act compliance. The purpose of NEPA is to promote analysis and disclosure of the environmental issues surrounding a proposed Federal action in order to reach a decision that reflects NEPA's mandate to strive for harmony between human activity and the natural world. Although section 10 and NEPA requirements overlap considerably,the scope of NEPA goes beyond that of the ESA by considering the impacts of a Federal action on non- wildlife resources such as water quality, air quality, and cultural resources. Depending on the scope and impact of the HCP,NEPA requirements can be satisfied by one of the three following documents or actions: (1) a categorical exclusion; (2)an Environmental Assessment(EA); or(3) an Environmental Impact Statement(EIS). An EIS is required when the project or activity that would occur under the HCP is a major Federal action significantly affecting the quality of the human environment. An EA is prepared when it is unclear whether an EIS is needed or when the project does not require an EIS but is not eligible for a categorical exclusion. An EA culminates in either a decision to prepare an EIS or a Finding of No Significant Impact(FONSI). Activities which do not individually or cumulatively have a significant effect on the environment can be categorically excluded from NEPA. Chapter 5 of the handbook discusses NEPA requirements. ,- Issuance of an incidental take permit is also a Federal action subject to section 7 of the ESA. Section 7(a)(2) requires all Federal agencies, in consultation with the Services,to ensure that any action "authorized, funded, or carried out" by any such agency "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of critical habitat. Because issuance of a section 10 permit involves an authorization, it is subject to this provision. Although the provisions of section 7 and section 10 are similar, section 7 and its regulations introduce several considerations into the HCP process that are not explicitly required by section 10-- specifically, indirect effects, effects on federally listed plants, and effects on critical habitat. Chapter 3, Sections B.2(e)-(h) discuss these issues in detail. Chapter 6, Section C.3 explains how section 7 consultation for issuance of section 10(a)(1)(B)permits is conducted. 5. Guiding Principles. The section 10 process is an opportunity to provide species protection and habitat conservation within the context of non-Federal development and land and water use activities. Ideally, it may also allow for the conservation and recovery of federally listed, proposed, and candidate species as well as overall biological diversity. It thus provides a 1-6 p"� mechanism for allowing economic development that will not "appreciably reduce the likelihood of the survival and recovery of the species in the wild." While species conservation is of course paramount, the section 10 process recognizes the importance of both biological and economic factors. Biologically, it provides FWS and NMFS with a tool to minimize and mitigate the incidental take of listed,proposed, and candidate species at the local, rangewide, or ecosystem level. For landowners and local governments, it provides long-term assurances that their activities will be in compliance with the requirements of the ESA. For both sides, the HCP process promotes negotiation and compromise and provides an alternative to conflict and litigation. The Services recognize the importance of working in partnership with non-Federal interests under section 10 of the ESA. The Services are committed to facilitating such partnerships by participating in all phases of the HCP process,providing timely assistance to permit applicants, expeditiously processing permit applications, and generally undertaking all measures necessary to ensure that the section 10 program is able to meet the growing challenges and opportunities of integrating endangered species protection with economic activities and needs. These principles are discussed further throughout this chapter and the entire handbook. F. Overview of Permit Processing Requirements Processing an incidental take permit application consists of announcing the HCP and NEPA analysis in the Federal Register and making them available for public review and comment; evaluating comments received, if any; conducting a consultation under section 7 of the ESA; and determining whether the HCP meets statutory issuance criteria under section 10(a)(2)(B) of the ESA. These basic steps are required for all HCPs. However, specific document and processing requirements will vary depending on the size, complexity, and impacts of the HCP involved (see sections F.2-F.5 below). Other documents or actions that may be needed depending on the HCP include the Implementing Agreement(Chapter 3, Section B.8), Environmental Action Memorandum, a brief document that provides the Service's record of NEPA compliance for categorically excluded actions (Chapter 6, Section B.2), and legal review of the application package (Chapter 6, Section C.4). 1. Expeditious Processing of Permit Applications. In the first ten years of the section 10 HCP program (1983-1992), 14 incidental take permits were issued. As of August, 1996, 179 incidental take permits have been issued, and approximately 200 are in development. To cope with this growing section 10 workload and anticipated continued increases in the program,the Services intend to streamline the HCP process to the maximum extent practicable and allowable by law. �"� 1-7 To accomplish this,the handbook introduces numerous improvements to the section 10 program developed by the Services and the Departments of Interior and Commerce. First, the handbook establishes a category of HCPs called "low-effect HCPs" which will apply to activities that are minor in scope and impact;these HCPs will receive expedited handling during the permit application processing phase. Second,the handbook improves guidance to Service personnel about section 10 program standards and procedures. Third, the handbook institutes numerous mechanisms to expedite the permit processing phase for all HCPs. Fourth,the handbook establishes specific time periods for processing incidental take permit applications once an HCP is submitted to the FWS or NMFS for approval. 2. The Low-effect HCP Category. For purposes of the section 10 program, the Services establish a special category for HCPs with relatively minor or negligible impacts. This "low-effect HCP" category is defined as follows: Low-Effect HCPs-- Those involving: (1)minor or negligible effects on federally listed, proposed, or candidate species and their habitats covered under the HCP; and (2) minor or negligible effects on other environmental values or resources. "Low-effect" incidental take permits are those permits that, despite their authorization of some small level of incidental take, individually and cumulatively have a minor or negligible effect on the species covered in the HCP. Low-effect HCPs may also apply to habitat-based HCPs if the permitted activities have minor or negligible effects to the species associated with the habitat-types covered in the HCP. Factors relevant to the determination that an activity is a low-effect activity include, but are not limited to,the effect of the activity on the distribution or the numbers of the species. The relationship between the geographic size of a project and the scope or severity of its impacts will not always be clear-cut. Projects that are large or small in size often will have commensurately high or low effects. However, a project may be large in size, but still be categorized as low-effect if it is expected to result in minor or negligible impacts. Similarly, a project could be small in size but capable of generating very significant impacts (e.g., if it affects a species with a highly-restricted range). The Services must consider each HCP on a case-by-case basis in determining whether it belongs in the low-effect category,taking into account all relevant factors including biological factors. The determination of whether an HCP qualifies for the low-effect category must be based on its anticipated impacts prior to implementation of the mitigation plan. The purpose of this category is to expedite handling of HCPs for activities with inherently low impacts, not for projects with significant potential impacts that are subsequently reduced through mitigation programs. However, this determination should factor in actions taken by the applicant to avoid take, such as conducting activities during specific times to avoid the nesting season or by relocating project locations. 1-8 3. Processing Low-Effect Permit Applications. Low-effect HCPs and permit applications often involve a single small land or other natural resource owner and relatively few acres of habitat. The impacts of such projects on federally listed species frequently are minor or negligible and the applicants often do not have the resources to withstand long delays. Consequently, an important guiding principle of the handbook is that permit application processing requirements for low-effect HCPs, as defined above,will be substantially simplified and permit issuance for such HCPs will be expedited to the maximum extent possible, consistent with Federal law. This will be accomplished by: (1)establishing clear processing standards for all HCP permit applications; (2) eliminating or standardizing section 10 documents for low-effect projects, wherever possible; (3)eliminating unnecessary review procedures; (4) categorically excluding low-effect HCPs from NEPA requirements; and (5)utilizing other techniques described throughout the handbook. 4. Summary of Permit Processing Requirements. The primary documentation and processing requirements for HCPs by category are as follows. Both categories also require the permit document with applicable terms and conditions. Low-effect HCPs require: (1)an HCP; (2)an application form and fee ($25); (3)publication in the Federal Register of a Notice of Receipt of a Permit Application; (4) formal section 7 consultation; (5) a Set of Findings,which evaluates a section 10(a)(1)(B) permit application in the context of permit issuance criteria found at section 10(a)(2)(B) of the ESA; and(6) an Environmental Action Memorandum, a brief document that serves as the Service's record of NEPA compliance for categorically excluded actions by explaining the reasons the Services concluded that there will be no individual or cumulative significant effects on the environment. Implementing Agreements will not be prepared for a low-effect HCP, unless requested by the permit applicant. In such cases, acceptance of the legal terms and conditions of the permit by the applicant will provide the necessary assurance that the plan will be implemented. Low-effect projects are categorically excluded from NEPA (see Chapter 5, Section A.2). All other HCPs require: (1) an HCP; (2) an application form and fee ($25); (3) an Implementing Agreement(optional, depending on Regional Director discretion); (4)the NEPA analysis, either an EA or EIS; (5)publication in the Federal Register of a Notice of Receipt of a Permit Application and Notice(s) of Availability of the NEPA analysis; (6) Solicitor's Office review of the application package; (7) formal section 7 consultation; and (8) a Set of Findings, which evaluates a section 10(a)(1)(B)permit application in the context � '� 1-9 of permit issuance criteria found at section 10(a)(2)(B) of the ESA and 50 CFR Part 17. "1 Note: For NMFS,the NOAA General Counsel's Office (either in the Region or Headquarters)reviews all documents relating to all HCPs. An EA will satisfy NEPA requirements for a section 10 permit application and will conclude with a Finding of No Significant Impact(FONSI), unless it is determined during preparation of the EA that approval of the project is a major Federal action significantly affecting the quality of the human environment. It is not necessary to prepare an EA first, if it is determined from the start that an EIS is necessary, although an HCP that requires an EIS should be uncommon. In the latter case, an EIS and Record of Decision(ROD) is required. For some HCPs, it may be possible to prepare the EA in accordance with 40 CFR 1501.4(e)(2), which requires that any Finding of No Significant Impact(FONSI) in an EA be made available for public review for 30 days before an agency makes its final decision and can eliminate the need for an EIS [see Chapter 5, Section A.3]. Figure 1 shows a diagram of the section 10 permit processing requirements from submission of the application package to permit issuance for a low-effect HCP that is categorically excluded from NEPA. Figures 2 and 3 show a diagram of the section 10 permit processing requirements from submission of the application package to permit issuance for an HCP that requires an EA and an EIS,respectively. 5. Target Permit Processing Times. The time required to process an incidental take permit application will vary depending on the size, complexity, and impacts of the HCP involved. The Services will work to complete all steps as expeditiously as possible. Procedurally,the most variable factor in permit processing requirements is the level of analysis required for the proposed HCP under NEPA- -whether an EIS, EA, or a categorical exclusion--although other factors such as public controversy can also affect permit processing times. 1-10 Figure 1: Typical Processing Steps for a Low-Effect Section 10(a)(1)(B ) Incidental Take Permit Application �"'� 1-11 Figure 2: Typical Processing Steps for a Section 10(a)(1)(B) Incidental Take Permit Application Requiring an EA r-N 1-12 n Figure 3: Typical Processing Steps for a Section 10(a)(1)(B) Incidental Take Permit Application Requiring an EIS 1-13 The handbook establishes the following target permit processing requirements for HCPs based on the NEPA action. Although not mandated by law or regulation,these targets are adopted as FWS and NMFS policy and all Service offices are expected to streamline their incidental take permit programs and to meet these targets to the maximum extent practicable. Permit processing times are defined as the period between receipt of a complete application package, as defined in Chapter 6, Section B.2(b),to the issuance of the incidental take permit, including Federal Register notifications and public comment. The targets do not include any portion of the HCP development phase. Section 10(a)(1)(B)Permit Application Processing Times: HCP With EIS less than 10 months HCP With EA 3 - 5 months Low-effect HCP (Categorically Excluded) less than 3 months These targets will apply as maximum processing times unless project controversy, staff or workload problems, or other legitimate reasons make delays unavoidable. However, in many cases it is expected actual processing times will be less than these targets and all FWS and NMFS offices are encouraged to improve on the targets whenever possible. 6. Benefits of Regional or Multi-species Conservation Planning. Some HCP applicants may be tempted to segment(or "piecemeal") a project into parts to take advantage of reduced processing requirements for low-effect HCPs as compared to larger ones. The Services do not endorse such segmentation and will not allow use of the low-effect HCP category to avoid processing requirements without commensurate reductions in project impacts. In addition, a low-effect HCP may not be available for a segmented project or one component of a regional HCP because in determining whether an action is categorically excluded from NEPA the Services must consider cumulative effects. The Services must also consider the interrelated, interdependent, and cumulative effects analyzed through the section 7 analysis. Potential HCP applicants considering regional or multi-species HCPs may initially conclude that such efforts are undesirable in light of more streamlined processing requirements for low-effect projects. However, regional or multi-species HCPs have many benefits. They can, for example: (1) maximize flexibility and available options in developing mitigation programs; (2) reduce the economic and logistic burden of these programs on individual landowners by distributing their impacts; (3) reduce uncoordinated decision making, which can result in incremental habitat loss and inefficient project review; (4)provide the permittee with long-term planning assurances and increase the number of species for which such assurances can be given; (5) bring a broad range of activities under the permit's legal 1-14 protection; and (6)reduce the regulatory burden of ESA compliance for all affected participants. The cumulative total of HCP processing requirements is far greater when regional or area- wide activities are permitted individually than when addressed comprehensively under a regional HCP. Consequently,a second guiding principle of this handbook is that FWS and NMFS will continue to encourage state and local governments and private landowners to undertake regional and multi-species HCP efforts as appropriate and will assist such efforts to the maximum extent practicable. G. Helpful Hints A successful HCP often requires consensus building and integration of numerous interests, especially for large-scale, regional planning efforts. Also,biological issues are not always clear-cut and sometimes are subject to interpretation. Service biologists must combine flexibility, creativity, good science, and good judgement in providing technical assistance to HCP applicants and making the section 10 program successful. The following "rules of thumb" should be helpful in meeting these challenges. o Review recovery plans for affected species and assess the extent to which HCP mitigation programs are consistent with them. Although FWS or NMFS cannot mandate that HCPs contribute to recovery, applicants should be encouraged to develop HCPs that produce a net positive effect on a species (see Chapter 3, Section B.3). Recovery plans should be used to help identify strategies to minimize and mitigate the effects of the HCP. When recovery plans are not available, contact recovery teams or other species experts to obtain information pertinent to HCP development. When appropriate,the development of the HCP could involve more active participation by recovery team members and species experts by providing technical assistance to the applicant. o Keep up-to-date on applicable statutes and policies, including the ESA, its implementing regulations,this handbook, and court decisions. Understand the authorities and limitations of the ESA and NEPA. Be up-to-date on new biological developments and state-of-the-art techniques such as population viability analysis. Keep reference materials on hand concerning legal and biological issues applicable to the section 10 program(Appendix 2 contains a list of reference materials). o The HCP is initiated by the applicant and is the applicant's document, not FWS's or NMFS's. The Services should assist the applicant and help guide the process by providing sufficient staff and technical advice. However, if the applicant insists on measures that would not allow the HCP to meet the section 10 issuance criteria,the �''� 1-15 Service will inform the applicant of the deficiencies in writing and offer assistance in developing a solution. If deficiencies are not corrected,the FWS or NMFS may ultimately have to deny the permit(see Chapter 6, Section F.1). Providing technical assistance early and continuously through the HCP development process will hopefully prevent such situations from occurring. o Help the applicant determine early in the process what species are to be addressed in the HCP. This will depend on what species occur in the project area, whether they are likely to be affected by project activities,their listing status (listed, proposed, or candidate),the applicant's objectives, and other factors (see Chapter 3, Section A.5). The Service will encourage permit applicants to address any species in the plan area likely to be listed within the life of the permit. This can benefit the permittee in two ways: (1)the "No Surprises" policy applies to unlisted species that are adequately addressed in an HCP (see Chapter 3, Section B.5(a)); and (2) it prevents the need to revise an approved HCP should an unlisted species that occurs within the plan area but was not addressed in the HCP subsequently be listed(see Chapter 4). The Services should advise the applicant on this issue, but ultimately the decision about what species to include in the HCP is always the applicant's. o Work with the applicant to get important issues on the table as early as possible in the HCP development stage. Make sure the applicant understands the section 10 issuance criteria and any regulatory or biological issues that will need to be addressed in the HCP. Avoid "eleventh-hour" surprises that result in delays and bad feelings on all sides. o HCP mitigation programs will be as varied as the projects they address. Some will be simple while those for large-scale, regional planning efforts may be quite complicated. There are few ironclad rules for mitigation programs but make sure they address specific needs of the species involved and that they are manageable and enforceable. A monitoring plan should be developed that establishes reporting requirements, biological criteria for measuring program success, and procedures for addressing deficiencies in HCP implementation (see Chapter 3, Sections B.3-B.5). o Service Field Offices and Regional Offices must coordinate regularly throughout the HCP process and work as a team, not as isolated, separate players. This is essential to ensure that FWS or NMFS, as applicable, provide consistent, dependable assistance to the applicant in developing the HCP and that internal differences in approach are resolved prior to the submission of an HCP proposal to the Regional office for formal processing (see Chapter 6, Section C.1). o The same principle cited immediately above applies to coordination between FWS and NMFS when an HCP includes the jurisdiction of both agencies. It is also important to 1-16 r-., obtain the views of the state wildlife and conservation agencies early and to address their comments. o Make sure the Services' section 7 obligations as they apply to issuance of a section 10 permit are explained to the permit applicant(s) and that section 7 considerations are introduced into the HCP from the beginning of the planning process. Compliance of the HCP with section 7 and 10 of the ESA should be regarded as concurrent, integrated processes, not as independent and sequential. (see Chapter 3, Section B.2(e) and Chapter 6, Section C.3). o The activities addressed under an HCP may be subject to Federal laws other than the ESA, such as the Coastal Zone Management Act, Archeological Resource Protection Act, and National Historical Preservation Act. Service staff should check the requirements of these statutes and ensure that Service responsibilities under these laws, if any, are satisfied, and that the applicant is notified of these other requirements from the beginning. The Service's staff should, to the extent feasible for all HCPs other than low-effect HCPs, integrate analysis done in compliance with other environmental and cultural review requirements into the NEPA analysis prepared for the proposed HCP. o Work with the permit applicant in good faith but ensure that the HCP established clearly measurable and enforceable compliance standards, including written documentation of all applicable biological results. o Once an incidental take permit has been issued, monitor permit compliance, and make sure monitoring activities are conducted and monitoring reports are submitted as defined by the HCP. Develop a tracking and accountability system for issued permits. Report all violations of permit conditions to the appropriate law enforcement personnel. 1-17 CHAPTER 2 OVERVIEW OF FWS AND NMFS ROLES AND RESPONSIBILITIES A. Delegation of Permit Authority In the past,the FWS's Office of Management Authority(OMA) in the Washington, D.C. area processed and issued all section 10(a)(1)(A) and 10(a)(1)(B)permits. Effective February 12, 1992,the FWS Director delegated incidental take permit responsibilities to the Regional Directors. For NMFS,the responsibility for issuing incidental take permits is divided between the Office of Protected Resources in Silver Spring, Maryland(Washington, D.C. area), and its west coast Regions. B. Roles and Responsibilities FWS and NMFS offices at the regional, field, and Washington, D.C. level, and the permit applicant, all have specific responsibilities in implementing the HCP program. This section summarizes the roles and responsibilities of each of these participants. Keep in mind that specific HCP procedures may vary somewhat between FWS Regions or between FWS and NMFS. This is because the circumstances faced by individual HCP participants may differ widely across regional boundaries or agency jurisdictions, and this handbook, while establishing consistent program standards, also seeks to maintain the flexibility to adjust to specific local needs. Thus, while fundamental legal and policy issues will be consistent nationwide, individual procedures (e.g., document handling requirements) may vary depending on the decisions of FWS Regional Directors or the NMFS Regional or Washington, D.C. Offices. 1. Applicant. The applicant is responsible for compliance with the take prohibition and exceptions under sections 9, 4(d), and 10(a) of the ESA. Once the decision to obtain a permit has been made, the applicant is also responsible for preparing the HCP and, if approved, for implementing it. Requesting technical assistance from FWS,NMFS, and other interests during preparation of the HCP is strongly recommended to ensure the HCP ultimately submitted for approval is biological sound and meets statutory requirements. The applicant: o Should coordinate with FWS,NMFS, affected Federal and state agencies,tribal governments, and where appropriate, affected private interests and organizations in preparing an HCP that satisfies the requirements of section 10(a)(1)(B) of the ESA and Federal regulations. ''� 2-1 n o Generally, develops a draft Environmental Assessment(EA)with technical assistance from the Services, and draft Federal Register notices for Service use during the permit processing phase. Normally,EISs are also prepared by the applicant, or through a contractor, or an HCP applicant, under certain circumstances and strict guidance from FWS or NMFS, can assist in developing an EIS. However, FWS or NMFS is ultimately responsible for the content of all section 10 NEPA documents. o Submits a permit application (Form 3-200), a$25 application fee (unless applicant is fee exempt), a completed HCP, draft NEPA analysis (optional) and an IA (as needed)to the appropriate FWS Field or Regional Office or NMFS Regional or Washington, D.C. Office (see Chapter 6, Section B.3). For FWS applications, note that Federal regulation [50 CFR 13.11(b)] calls for the application to be submitted to the Arlington,Virginia office; however, these regulations are being amended to reflect delegation of the permit program to the Regional Directors. NMFS regulations [50 CFR 222.22] state that applications should be sent to the Silver Spring, Maryland Office, but applications involving west coast anadromous fish should be submitted to the Southwest or Northwest Regional Directors. o During the permit processing phase, coordinates with the appropriate FWS or NMFS Field Office to amend or correct the HCP or associated documents, as n necessary. Also should provide the Field Office with additional information necessary for the Services to respond to public comments when appropriate. o If the permit is issued, implements all measures and programs required by the HCP permit and submits all documentation, monitoring reports, etc. as required over the life of the permit. 2. Field Office. FWS Responsible Party -Field Supervisor. NMFS Responsible Party- Field Supervisor. The Field Office is responsible for assisting the applicant in preparing the HCP; ensuring that the HCP and associated documents are complete; and coordinating with the appropriate Regional Office (or NMFS Washington, D.C. Office) throughout HCP development, approval, and implementation. The Field Office: o Provides technical assistance to the permit applicant and serves as applicant's point of contact for information concerning HCP, permit processing, and NEPA 2-2 requirements during the HCP development phase. Provides assistance to the applicant's HCP steering committee, if any, as requested (see Chapter 3, Section A.3). o Encourages permit applicant to include affected state and Federal agencies and tribal governments to participate in the HCP process. Other Federal agencies might be involved, for example, if they are involved in adjacent planning areas or would administer mitigation lands under the HCP. Inclusion of affected state agencies insures efficient consideration of any additional requirements of state law. o Coordinates review of HCP development with FWS or NMFS Law Enforcement agents involved in enforcing permit conditions. o Stays informed on planning progress,problems, significant issues, and decisions; routinely advises the Regional Office of HCP progress on key policy and substantive issues (see Chapter 6, Section C.1). o Reviews drafts of the HCP and IA for adequacy and comments as necessary. Draft HCPs should be returned to the permit applicant within 30 days of submission, to the maximum extent possible. o Prepares NEPA analysis, or reviews draft documents if prepared by the applicant or contractor. Draft NEPA analysis should also be returned to the permit applicant within 30 days of submission,to the maximum extent possible. o Certifies to the Regional Office in writing that HCP documents have been reviewed by Field Office staff and are found to be statutorily complete, when the "complete application package" is transmitted to the Regional Office (see Chapter 6, Section B.2). o Reviews public comments received, if any, and coordinates necessary changes to the HCP or IA with the FWS or NMFS Regional HCP Coordinator during the permit application processing phase; notifies applicant(s)of recommended revisions to the draft HCP or IA, if any, identified as a result of legal or public review; and discusses remedies. Coordinates with FWS or NMFS Regional Office Environmental Coordinator,NMFS Washington, D.C. Office HCP Coordinator, or the applicant or applicant's contractor to make revisions to the NEPA document, if necessary. o For FWS, briefs the Regional Director, appropriate Assistant Regional Director, ARD for Law Enforcement, and the Solicitor's Office concerning HCP issues as 2-3 requested. For NMFS,briefs the Regional Director, Deputy Director, Law Enforcement, and General Counsel's Office, as requested. o Drafts the following documents(see Chapter 6, Section B.2): NEPA analysis, either an EA or EIS that is integrated with the proposed HCP (unless drafted by the applicant or contractor). Federal Register Notice of Receipt of permit application and Notice(s) of Availability of EA or EIS. Biological opinion concluding formal section 7 consultation. The biological opinion concluding formal section 7 consultation may be done by the FWS or NMFS office that assisted in HCP development or by another office. To avoid possible biases, the staff member conducting the section 7 consultation should not be the section 10 biologist providing technical assistance to the HCP applicant. This will help ensure that the intra-Service section 7 consultation is an independent analysis of the proposed HCP. If,because of staff time constraints, this is not possible,then the biological opinion should be reviewed by another knowledgeable biologist before it is signed by the approving official. It is very important that the staff member that completes the section 7 consultation be involved in the initial stages of the HCP process. This will help ensure that the section 7 requirements are addressed in the HCP and that the two processes are /'� integrated which will help expedite the permitting process. If the Regional Director has delegated the authority,the biological opinion may be signed by an approving official in the Field Office. Set of Findings (see Chapter 6. Section B.2). An Environmental Action Memorandum for low-effect HCPs that are categorically excluded from NEPA, Finding of No Significant Impact(FONSI) for the EA, or Record of Decision(ROD) for the EIS. News releases as appropriate or requested by the Regional Office. Responses to comments, as necessary. Permit Terms and Conditions for inclusion in the permit(FWS's Form 3-201), if requested by the Regional Office or NMFS Washington, D.C. Office. o Monitors compliance with HCP provisions and permit terms and conditions and evaluates success of the HCP at least annually. Arranges for independent biological peer review, as appropriate. 2-4 �` o Provides an accounting of fund expenditures administering the section 10 program to the Regional Office as requested. 3. Regional Office. FWS Responsible Parties - Regional Director(RD); Deputy Regional Director(DRD); appropriate Assistant Regional Director(ARD); and Assistant Regional Director for Law Enforcement(ARD-LE). NMFS Responsible Parties- Regional Director(RD); Deputy Regional Director (DRD). For FWS,the Regional Office oversees and administers the incidental take permit program for its respective region. For NMFS,this is true for the Northwest and Southwest Regions only, and only for activities concerning west coast anadromous fish species; the Washington,D.C. Office administers the balance of the permit program. Currently, the only HCPs in development in these NMFS regions are for anadromous species. The FWS and applicable NMFS Regional Office is responsible for coordinating with the Field Office throughout the HCP process, reviewing and processing the permit application; and issuing or denying the permit. It is also responsible for ensuring that permit processing targets described in Chapter 1 and Chapter 6 are met. The Regional Office: o Receives complete permit application package with supporting documents from the Field Office or applicant, and accounts for fee processing (see Chapter 6, Section B.3). o Processes application check. o Coordinates with ARD-LE to have permit number assigned through LEMIS (Law Enforcement Management Information System); coordinates review of permit application by ARD-LE, as necessary (FWS only). o Reviews permit application package for adequacy and reports any deficiencies to the Field Office (Section 10 Coordinator reviews HCP and IA; Environmental Coordinator reviews NEPA analysis) (see Chapter 6, Section B.4 and C.1). Prior periodic Field Office review and reporting on key policy and substantive issues should result in the identification and elimination of most deficiencies prior to formal Regional Office review. o Transmits Federal Register notices to the Office of the Federal Register for publication(see Chapter 6, Section D). 2-5 o Files copies of any draft and final EIS with the Environmental Protection Agency [see Chapter 5, Section A.4]. o Reviews draft and finalizes internal section 7 consultation, if the biological opinion was drafted by the Field Office that participated in HCP development, or incorporates biological opinion completed by the Field Office into the administrative record. o Reviews and finalizes Set of Findings (unless finalized by the Field Office). o Prepares the Environmental Action Memorandum (EAM) for low-effect HCP permit applications (see Chapter 6, Section B.2). o Coordinates with the Assistant Director for Ecological Services for major policy issues to ensure the interpretation of the policy is legally sufficient and within the overall National policy guidance for the HCP program. o Briefs the Director or Washington, D.C. Office on all significant HCP developments,permit application processing, and post-issuance efforts, as necessary. Reports HCPs in development and section 10 permits issued to Washington Office, as requested. o Coordinates with lead Region responsible for the species prior to issuance of the n permit to ensure agency-wide consistency for species that overlap more than one FWS or NMFS Region. o Prepares permit and associated documents (IA, FONSI, ROD, EAM) for RD or DRD signature, as necessary or requested (see Chapter 6, Section C.5). o Issues or denies the permit and(FWS only)updates LEMIS. Sends the signed permit with terms and conditions or a denial letter to the permittee or applicant. Sends copies of these documents to the Field Office, other affected offices, and Division of Endangered Species (FWS) and Office of Protected Resources (NMFS) in Washington, D.C. o Sends Notice of Permit Issuance to the Office of the Federal Register for publication on a quarterly or biannual basis. o Coordinates Freedom of Information Act (FOIA) requests. 4. Washington Office. 2-6 FWS Responsible Parties-Director; Assistant Director of Ecological Services (AES); and Chief,Division of Endangered Species (DTE). NMFS Responsible Parties- Director, Office of Protected Species; Chief,Endangered Species Division. The FWS Washington Offices provide guidance and oversight to the Regional and Field Offices. It is responsible for nationwide administration of the program: o Develops regulations and national policy guidance. o Assists in resolving issues or disputes when requested by the Regional Offices. o Briefs Director or other authorities or coordinates such briefings as necessary. o Prepares HCP,NEPA, and other related training and technical assistance to Regional Offices and Field Offices, as needed. o Maintains and updates national list or data base of HCPs in development and permits issued. The NMFS Washington, D.C. Office of Protected Resources has the same functions as described for FWS. It also processes all permit applications and issues or denies all permits, except for those concerning anadromous species in the Northwest or Southwest Regions. NMFS permits for activities such as state fish hatcheries, and commercial or recreational fisheries must comply with all statutory provisions of section 10(a)(1)(B)of the ESA, but may have fewer documentation requirements than other types of incidental take permits. (Refer to NMFS final regulations for the program contained in Appendix 1 (55 FR 20603)). The NMFS Washington, D.C. Office should be contacted for assistance in handling any such permits. Generally, all other NMFS-issued incidental take permits are subject to the documentation requirements described in this handbook. 5. Solicitor's Office/General Counsel Office. FWS Responsible Parties - Solicitor's Office NMFS Responsible Parties - General Counsel's Office For FWS,the Solicitor's Office need review only those parts of the permit application package that the Regional Director request be reviewed--typically the HCP and Implementing Agreement. Coordination with the Regional Solicitor's Office on a permit application package should begin as soon as possible in the permit processing phase and during the HCP development phase. After Solicitor review is complete, the 2-7 Regional Solicitor's office should forward a memorandum to the RD or appropriate ARD stating that he or she has reviewed the IA and other documents, as applicable, and that they meet statutory and regulatory requirements. The Regional Solicitor's Office should review the documents,as necessary, throughout the HCP process to ensure regulatory and statutory compliance and to avoid "last minute" identification of problems in documents submitted for final approval. For NMFS,the General Counsel's Office(either in the Region or Headquarters) must review the entire application package and all supporting ESA and NEPA documentation. The purpose of legal review of the permit application package is to ensure that the HCP and associated documents meet the strict requirements of the ESA and its regulations. This is especially important for the HCP,which has specific legal requirements, and the Implementing Agreement, which legally binds the applicant to complying with the HCP and permit terms. For NMFS, legal review of all documents must be conducted by either the Headquarters or Regional General Counsel's Office. n 2-8 '~ CHAPTER 3 PRE-APPLICATION COORDINATION AND HCP DEVELOPMENT Congress intended the HCP process to be used to reduce conflicts between federally listed species and non-Federal development and land use, and to provide a framework for "creative partnerships" between the public and private sectors in endangered species conservation. Congress also intended the FWS and NMFS to be not just regulators of the HCP program, but active participants in providing technical assistance, and that "comprehensive" HCPs could be developed jointly by the FWS,NMFS, the private sector, and local, state, and Federal agencies, with the Services as a technical advisor(H.R. Rep. No. 97-835, 97th Congress, Second Session). This chapter discusses the Services'roles in the HCP process during the pre-application and HCP development phase. From a technical standpoint,this involves advising the permit applicant on the biological needs of the species involved, statutory HCP requirements and permit issuance criteria,NEPA requirements, and other technical issues. The Services also have an important "leadership" role to play in the HCP program,which involves not only technical expertise but attitude and philosophy. Although FWS or NMFS typically do not initiate HCP efforts,they can and should encourage them and once initiated support them to the maximum extent possible. This means being actively involved during HCP development;providing advice on mitigation programs, monitoring measures, and reserve designs; providing timely review of draft documents; helping find solutions to contentious issues; and generally helping bring the HCP together. A. Getting Started Once a private or non-Federal entity(or entities)has decided to obtain a section 10(a)(1)(B) permit the first task that it needs to undertake are determining the appropriate applicant, deciding whether or not to establish a steering committee, and preparing a list of species to be addressed in the HCP. 1. Who Can Apply For a Section 10 Permit? Section 10 permits can be issued to state,municipal, or tribal governments, corporations or businesses, associations, and private individuals. They can also be issued to entities that are a combination of these, such as joint power authorities, watershed councils, and other planning authorities. The standard method of authorizing take for Federal agencies is through the section 7 consultation process. Actions authorized, funded, or carried out by Federal Agencies must go through the section 7(a)(2) consultation process. There are cases where a Federal agency i"� 3-1 is a partner in an HCP, and has a minor, but integral role in the HCP. Examples of these types of HCPs would include HCPs where a Federal agency is involved in a cooperative planning effort in which both Federal and private lands are addressed under a single HCP but the Federal agency is not the applicant or the primary partner in the plan. In these cases, the specific identified actions to be conducted by the Federal agency during the implementation of the HCP should be consulted on as part of the section 7 consultation conducted for the HCP. This allows the Services to conduct one formal consultation that incorporates the actions for the HCP and any specified or identified cooperative Federal action into one biological opinion. The biological opinion developed for the HCP should also incorporate the necessary biological analysis on the Federal action as well as the actions in the HCP to help eliminate duplication. Thus,the single biological opinion issued by the Services would address both the Federal action and the non-Federal action, and it would include an incidental take statement that authorizes any incidental take by the Federal agency and an incidental take permit that authorizes any incidental take by the section 10 permittee. Before processing a section 10 permit application involving a Federal agency, Service staff should consult with the appropriate Regional Director's or Solicitor's Office (FWS), or the Regional Director's Office or Washington, D.C. Office of Protected Resources Office (NMF S). 2. Determining the Appropriate Applicant. The first step is to determine who the applicant is who ultimately will hold the permit. In many cases this is relatively straightforward--the applicant is the land or other natural resource owner who proposes the project or activity and is responsible for implementing the HCP. In regional HCPs,the plan often relies upon local or regional authorities to implement the plan and regulate the taking of listed species addressed in the plan. The permittee must therefore be capable of overseeing HCP implementation and have the authority to regulate the activities covered by the permit. For large-scale planning efforts involving only one or two landowners or types of activities,the landowners themselves are usually the appropriate permittee. For planning efforts involving numerous property owners and activities,the permittee is usually a local public agency--e.g., a city or county government or several local agencies acting jointly. In other cases, a state agency may obtain and hold a section 10 permit for certain types of state-regulated private activities (e.g., forestry activities). When no government agency is available or interested in assuming the responsibility for an HCP,private groups wishing to obtain a permit for large-scale or multi-faceted projects may initiate an HCP without government involvement. They may, for example, form a consortium to develop the HCP, in which case the consortium would be the permittee. Or, they may jointly fund development of the HCP but maintain their individual identities by applying for separate permits, using the same HCP or individual HCPs modified from a 3-2 jointly-developed "template." Either approach is acceptable so long as the permittees have the authority to regulate or control all or applicable parts of the HCP program and the conditions of the HCP are enforceable. 3. Steering Committees. An HCP "steering committee" is a group of persons who represent affected interests in a broad-scale HCP planning area and generally oversee HCP progress and development. Steering committees are not required by law and the Services do not require them, although they have proven useful to applicants in a variety of HCP settings. However,the Services cannot be the entities which establish them without compliance with the Federal Advisory Committee Act. It is important to remember that a steering committee's purpose is to advise the applicant in the development of the HCP, not to advise the Service on permit issuance. The steering committee approach may not be appropriate for all situations. For some applicants, it may be too formal or complicated, or they may view it as giving "outside interests"too much access to proprietary data involving private lands. If this is the case during the pre-application phase,the Services should encourage the applicant to provide opportunities to brief or inform representatives of interested parties of key elements or issues to be addressed in the proposed HCP. This can be accomplished in several ways, such as formal or informal meetings, newsletters, etc. When used in the HCP process, steering committees are usually appointed by the permit applicant and can fulfill several roles--they can assist the applicant in determining the scope of the HCP (size of the planning area, activities to include, etc.), help develop the mitigation program and other HCP conditions,provide a forum for public discourse and reconciling conflicts, and help meet public disclosure requirements. Steering committees are particularly useful in regional HCPs, especially those in which the prospective permittee is a state or local government agency, and are recommended for these types of HCP efforts. However, they are generally not utilized for low-effect HCPs or most single landowner projects. Ideally, a steering committee should include representatives from the applicant; state agencies with statutory authority for endangered species; state or Federal agencies with responsibility for managing public lands within or near the HCP area(including other Service program areas such as the FWS's Refuges Division); tribal interests where applicable; affected industries and landowners (especially those with known or possible endangered species habitats); and other civic or non-profit groups or conservation organizations with an interest in the outcome of the HCP process. For regional HCPs it is not practical to include every affected landowner or interest group on the steering committee. Instead, industry groups should be encouraged to assign a professional or trade organization to the committee to represent them--e.g., a farm bureau, cattlemen's association, or building industry association--though corporations with extensive 3-3 land holdings in the plan area may want to represent themselves. The steering committee needs to be representative, but its size must be manageable. Another way to control numbers of participants in the HCP process is by using sub- committees. Sub-committees act as small working groups on behalf of the main committee and are an excellent means of addressing specific issues and developing specific components of the HCP. Sub-committees are more efficient than the larger steering committee for conducting certain tasks and generally help move the HCP process forward. Prior to initiating an HCP effort,the newly-appointed steering committee may elect to develop a Memorandum of Understanding (MOU)or similar document to record "up front" the goals of the HCP,the composition of the committee, expectations of HCP participants, and other information unique to the locality or defined by the committee. Appendix 3 shows the MOU developed by participants of the Kern County, California HCP. The question of whether to establish a steering committee may be difficult for non- governmental applicants. State or local governments typically embrace the steering committee idea early in the process because of their desire to obtain consensus from the community. On the other hand,private landowner applicants may feel that creation of a steering committee will lead to confrontation or the intrusion of outside interests into proprietary or sensitive economic matters. However, applicants should be aware of the potential benefits of a steering committee. These include identification and resolution of issues before they cause delays later in the process, development of an HCP that enjoys greater support in the community, and the cooperation of agencies or private conservation organizations that may be needed to help implement the conservation program. Permit applicants ultimately must weigh the risks of establishing or not establishing a steering committee with the expected benefits. For large-scale or regional HCPs, one of the main functions of the steering committee is to build consensus among diverse organizations and interests, so it is important to promote good working relationships among committee participants. This does not mean that reaching agreement in complex HCP efforts will be easy! Often it is not. However, development of the HCP will be most effective when all interests in the community are represented in steering committee activities and their views and needs are given a fair hearing. A few suggestions: o Steering committee meetings should be open to the public. This allows interested persons who do not actually sit on the committee to attend meetings, monitor progress, and generally feel they are part of the process. o HCP participants should avoid creating an impression that they are pursuing unstated agendas or negotiating in bad faith. The trust developed between diverse and sometimes antagonistic HCP participants can be fragile, and this 3-4 �` impression can be damaging to a productive HCP even if untrue. Participants need to be sensitive to perception and avoid the impression of bad faith. o The FWS and NMFS should not assign inexperienced staff to provide technical assistance to large-scale or regional HCP steering committees. This can result in mistakes, lost opportunities, and suggests to the applicants that the agencies are disinterested in the planning process. Inexperienced staff should learn the HCP process by working on small HCPs and by assisting other staff on larger efforts. If no staff have specific HCP experience,then individuals who are otherwise seasoned FWS or NMFS professionals should be assigned. If such individuals are not available, other staff should be sent to monitor HCP progress but not to actively participate. In such cases, staff sent to monitor the HCP should make clear to the applicants the limitations of their participation and resist rendering advice on important issues. However, they can and should act as liaisons to more experienced staff in the Field Office in answering questions or obtaining advice. o The composition of the steering committee will depend on the type of HCP involved. Regional HCPs involving numerous activities and in which the applicant is a government entity ideally should include representatives from all affected interests. Steering committees for non-government HCPs can be organized according to the specific needs of the applicant, but at the least should include representatives from each permit applicant. o A good facilitator or consultant who is skilled at moderating committee meetings, building consensus, and handling uncooperative parties can help significantly to move the HCP process forward. 4. The Services'Roles on Steering Committees &HCP Efforts. Neither the FWS nor NMFS is required by statute or regulation to serve on HCP steering committees. Nevertheless, it is strongly advised that section 10 applicants invite the Services to participate as technical advisors on their steering committees. This will help ensure that adequate biological standards are incorporated into the HCP and that the HCP and associated documents meet procedural requirements when the permit application is 3-5 submitted. An HCP prepared in the absence of Service technical participation could be judged inadequate late in the process and unnecessary delays could result. The same caveat applies to all HCPs, regardless of size or whether a steering committee is established. However, a careful balance needs to be drawn between constructive Service involvement in HCP efforts and overly aggressive involvement. Too little involvement can leave the impression that FWS or NMFS are disinterested or unhelpful,while too much can create the perception that the Services are inflexible in their approach to the HCP process, rigidly dictating the mitigation program. To avoid either impression, Service HCP representatives need to understand their role and make that role clear to the applicant and the steering committee. Their function as agency representatives is to provide guidance about statutory and policy standards and to help facilitate development of a suitable mitigation program that satisfies the requirements of section 10; it is not to dictate every element in the HCP. The option to ignore or modify Service recommendations remains with the applicant; of course, doing so might result in subsequent difficulties during the permit application processing phase and the disapproval of an inadequate HCP. Service representatives at the Field Office level cannot pre-approve an HCP because section 10 permits are issued by the Regional Office (or, for NMFS,the Washington, D.C. Office), and, although advance coordination between the Field and Regional Offices should ensure their agreement on the HCP's adequacy,the permit application must still be evaluated fully during the public comment period. The Services' steering committee members should also abstain from formal voting procedures on HCP issues if the committee conducts such votes. This will prevent confusion and reinforce the Services' proper role as advisor. Until the HCP is completed and submitted for approval, specific HCP development decisions are up to the steering committee and the applicant. During the HCP development phase,the Services should be prepared to advise section 10 applicants on the following(regardless of whether there is a steering committee): o Preparing the species list and identifying project scope and impacts. o Biological studies and data needed to assess project impacts; o NEPA requirements and the applicant's potential role in developing the NEPA analysis. o Applicability of state endangered species law and requirements, and any other Federal laws that may be applicable, if any. 3-6 o Project modifications that would minimize take and reduce impacts, or, ideally, and with concurrence of the applicant, would generate an overall measurable net benefit to the affected species; o Design of mitigation, habitat enhancement, or mitigation programs; o Reserve design criteria and assistance in population viability assessments, if desired. o Methods for monitoring HCP progress and project impacts on affected species; o Biologically acceptable take limits and how to define them; o Criteria to track or determine success of the HCP; and, o Procedural and other HCP issues as requested by the committee. 5. Preparing the HCP Species List. In many HCPs,there are one or two primary species that "trigger" the need for an incidental take permit(e.g.,the northern spotted owl or salmon in the Pacific Northwest, desert tortoise in southwestern deserts, or red-cockaded woodpecker in the southeast),though other listed species may occur in the same planning areas. After the decision has been made to obtain a permit, one of the first decisions an HCP applicant must make is what species to address in the plan. Generally,permit applicants should be advised to include all federally listed wildlife species likely to be incidentally taken during the life of the project or permit. If the applicant does not address such species, it may not be possible to issue the permit(if the issuance of a more limited permit would violate section 7(a)(2) for the listed species not covered) or the project activities could be stopped or delayed after the permit has been issued if a listed species that was not addressed in the HCP is likely to be taken during project activities. There are also advantages in addressing unlisted species in the HCP (proposed and candidate species as a minimum),particularly those that are likely to be listed within the foreseeable future or within the life of the permit. Doing so can protect the permittee from further delays--e.g.,having to revise the HCP and amend the permit--should species that were not listed at the time the original HCP was approved subsequently become listed. In addition, the "No Surprises" policy(see below, Section B.5(a)), applies to listed as well as unlisted species if they are adequately addressed in the HCP. The more species addressed in the HCP,the more potentially complicated the HCP may become. For example, in most state systems,primary jurisdiction over candidate species rests with the affected State fish and wildlife agency, thereby increasing the advisability of 3-7 that agency's participation in the HCP process. Thus, selecting the species list can become an exercise in balancing the need to obtain maximum regulatory certainty,with practical considerations such as manageability, availability of biological information, and cost. The Services should be prepared to advise the applicant about which listed species should be highest priority in the HCP,which unlisted species are most likely to be listed in the future, and which species, listed or unlisted, can otherwise be advantageously addressed in the HCP. Ultimately,the decision about what species to address in the HCP lies with the applicant. In any case,the species list should be developed and agreed upon early in the HCP process, since it forms much of the basis for future plan development. When preparing the species list the applicant should be informed that the ESA generally does not prohibit the incidental take of federally listed plants. Nevertheless, the Services should encourage the applicants to consider including listed plants in HCPs because, although incidental take of plants may not be prohibited by section 9,the section 7(a)(2)prohibition against jeopardy does apply to plants. If the section 7 consultation on a section 10 permit application concludes that issuance of the HCP permit for wildlife species would jeopardize the existence of a listed plant species,the permit could not be issued. To avoid this outcome, the applicant should ensure that actions proposed in the HCP are not likely to jeopardize any federally listed plant species. In addition, not all species under the jurisdiction of NMFS listed as threatened are subject to the section 9 take prohibitions. Such prohibitions are applied through regulation, on a case-by-case basis. Therefore, an incidental take permit may not be required for these species. Specific regulations are provided at 50 CFR Part 227. 6. Involving Other Federal and State Agencies. During the development stage of an HCP,the Services will provide technical assistance and information concerning regulatory and statutory requirements to the applicants to ensure completeness of the application. Throughout this developmental process, the Services will encourage applicants to invite and include other Federal and State agencies who can utilize their existing authorities, expertise, or lands, in support of the HCP development and implementation process. It is particularly important to encourage participation of other Federal and State agencies that manage nearby lands into the HCP development process, if the applicant is willing to do so. However,the Service must ensure that activities are not identified in the HCP that obligate other agencies to conduct mitigation or minimization activities for species covered by the HCP, unless specifically negotiated with the agency, and the agency was a partner in the development and implementation of the HCP. The "No Surprises"policy,which provides the applicant with regulatory certainty, calls for the Services to assist with correcting any unforeseen circumstance that may arise. This means that in the face of unforeseen circumstances the FWS and NMFS will not require additional mitigation in the form of additional lands or funds from any permittee who is adequately implementing or has implemented an approved HCP. Once the permit is issued and its terms 3-8 are being complied with,the applicant will not be required to accept additional obligations of this type. The policy also protects the permittee from other forms of additional mitigation except in cases where "extraordinary circumstances" exist. The Services can, however, encourage other Federal or State agencies to assist with any unforeseen circumstances. Other agencies will be better able to assist if they have been involved throughout the entire HCP development. Any Federal or State agency that could ultimately be affected by the implementation of an HCP will be notified during the developmental process, and once the HCPs are completed and the incidental take permit is issued the Services will provide copies to the affected agencies. This will help these agencies effectively manage their lands in a way that could support the HCP and promote the conservation and recovery of listed and unlisted species. 7. Treaty Rights and Trust Responsibilities. A unique and distinctive relationship exists between the United States and Native American Tribes, as defined by treaties, executive orders, statutes, court decisions, and the United States Constitution. This relationship differentiates tribes from other entities that deal with, or are affected by,the Federal government. Indian tribes are recognized under Federal law as separate sovereigns with governmental rights over their lands and people. These governmental rights and authorities extend to natural resources that are reserved by or protected in treaties, executive orders, and Federal statutes. Such reserved rights may include off-reservation rights to hunt, fish, or gather trust resources. The United States has a Federal trust obligation towards Indian tribes to preserve and protect these rights and authorities. The Federal Indian trust responsibility is a legal enforceable fiduciary obligation, on the part of the United States,to protect tribal lands, assets, resources, and treaty rights, as well as a duty to carry out the mandates of Federal law with respect to American Indian tribes and Alaskan Natives. During habitat conservation planning negotiations with non-Federal landowners,the Services must consider whether proposed plans might affect tribal rights to trust resources. Whenever the Services have a reasonable basis for concluding that such effects might occur, they must notify the affected tribes and consult government to government in a meaningful way. Consultation with the affected tribe shall be completed within a timely manner. After careful consideration of the tribe's concerns, the Services must clearly state the rationale for the recommended final decision and explain how the decision relates to the government's trust responsibilities. In light of this obligation, it is important that the Services identify and evaluate during the planning process, any anticipated effects of a proposed HCP upon Indian trust resources. 3-9 B. Developing the HCP 1. Mandatory Elements of an HCP. Under the Endangered Species Act [Section 10(a)(2)(A)] and Federal regulation [50 CFR 17.22(b)(1), 17.32(b)(1), and 222.22], a conservation plan submitted in support of an incidental take permit application must detail the following information. o Impacts likely to result from the proposed taking of the species for which permit coverage is requested; o Measures the applicant will undertake to monitor, minimize, and mitigate such impacts; the funding that will be made available to undertake such measures; and the procedures to deal with unforeseen circumstances; o Alternative actions the applicant considered that would not result in take, and the reasons why such alternatives are not being utilized; and, o Additional measures FWS or NMFS may require as necessary or appropriate for purposes of the plan. Each of these conservation plan elements are discussed in detail in the sections below. NMFS regulations(50 CFR 222.22)also require a list of all sources of data used in preparation of the plan. Section 10 HCP requirements and permit issuance criteria must be clearly explained to any prospective permit applicant at the outset of an HCP effort. This is essential to ensure that the applicant understands the HCP process and that the HCP is developed within required legal parameters. 2. Identifying Project Impacts. Four subtasks must be completed to determine the likely effects of a project or activity on federally listed or candidate species: (a) delineation of the HCP boundaries or plan area; (b) collection and synthesis of biological data for species to be covered by the HCP; (c) identifying activities proposed in the plan area that are likely to result in incidental take; and(d) quantifying anticipated take levels. To help expedite the section 7 process,the HCP should also assist the Services in: (e) satisfying the requirements of section 7 of the ESA; (f) addressing significant indirect effects of the project on federally listed species, if any; (g) addressing jeopardy to federally listed plants, if anticipated; and(h)addressing effects on critical habitat, if any. Section 7 should be addressed as early as is practicable in the HCP development process. 3-10 '^` a. Delineation of HCP Boundaries. HCP boundaries should encompass all areas within the applicant's project, land use area, or jurisdiction within which any permit or planned activities likely to result in incidental take are expected to occur. HCP boundaries should also be as exact as possible to avoid later uncertainty about where the permit applies or where permittees have responsibilities under the HCP. For low-effect and many other HCPs,the plan area is usually synonymous with the project or land use site or the landowner's property. For regional HCPs, the size and configuration of the plan area will depend on various factors. Sometimes a regional HCP boundary will simply be a county line because a county government is the applicant. In other cases, it will be drawn to deliberately include or exclude certain areas or activities, depending on the participants' objectives [see Section B.2(c) below]. Generally, HCP applicants should be encouraged to consider as large and comprehensive a plan area as is feasible and consistent with their land or natural resource use authorities. Regional and other large-scale HCPs allow the permittee to address a broad range of activities and to bring them under the "umbrella" of the permit's legal protection. They also allow analysis of a wider range of factors affecting listed species,maximize flexibility needed to develop innovative mitigation programs, and minimize the burden of ESA compliance by replacing individual project review with comprehensive, area-wide review. On the other hand, considering a large and complicated planning area has its own potential difficulties. Attempts to satisfy too many land use or endangered species issues in one effort can be frustrated by excessive complexity, shortages of biological information, and difficulties in securing the consensus of HCP participants. However,these are judgment calls, and the final size and configuration of an HCP planning area will often be a compromise between the need to be as comprehensive as possible and the inherent risks of an over-extended, protracted HCP effort. Regional HCPs sometimes can be simplified by dividing the planning area into separate planning units with different conditions and requirements for each area. This approach was adopted in the San Bruno Mountain HCP. Coordination with individual landowners and local land use authorities will help determine when subdivision of a plan area will yield substantial advantages. In any case, neither the ESA nor its implementing regulations limits the size of an HCP planning area. No matter how large or small, HCP areas are acceptable so long as the HCP is statutorily complete and meets the section 10 issuance criteria. With respect to small projects, the FWS section 10 regulations state that, "The Service believes that Congress did not intend to exclude projects from the incidental take provisions of section 10(a)merely because the projects were of more limited duration or geographical scope [than the San Bruno Mountain HCP]" (50 FR 39681-39691). 3-11 The HCP plan area might also include areas necessary for the mitigation. The exception to this general rule may be where the mitigation consists of reserves apart from the area in which incidental take is authorized. This will entail various considerations--e.g.,the distance from permitted activities to reserve areas (see below, Section B.2(c)) and the ability of the permit applicant or its designee to regulate activities inside the reserve. Private, state, or locally-owned lands should never be considered for inclusion in HCPs as reserves without the concurrence of the landowners or their representatives. b. Collection and Synthesis of Biological Data. Preparing an acceptable HCP requires the availability of up-to-date biological information on the species being considered within the plan area. First,the applicant should collate and review existing information about species distribution, occurrence, and ecology. FWS or NMFS can assist in this process by directing the applicant to available information. Second,the applicant should determine whether the available information is adequate to proceed with the planning process. If not, FWS or NMFS should recommend the type, scope, and design of biological studies that can reasonably be developed to support the HCP. However, research efforts on behalf of an HCP should be confined to distribution studies or other studies with a direct bearing on the needs of the HCP. Permit applicants should not be expected to undertake studies that do not directly affect the outcome of the HCP. Determining the availability of existing information is especially important for regional HCPs, since they may involve species whose biology is not well known. Low-effect HCPs typically will not require additional studies beyond surveys needed to determine the distribution of the species within the plan area. n Another approach to consider for HCPs is habitat-based HCPs (see Chapter 3, Section C.1) in which the presence of a particular species can be assumed based on the presence of its habitat type; if that habitat type is then addressed in the HCP and included in the mitigation program, additional distribution studies may not be necessary. c. Determination of Proposed Activities. The applicant should be encouraged to include in the HCP a description of all actions within the planning area that: (1) are likely to result in incidental take; (2) are reasonably certain to occur over the life of the permit; and (3) for which the applicant or landowner has some form of control. For many HCPs,this will usually involve a specific well-defined project(e.g.,home construction; water use development) or land use activity (e.g., forestry). For regional and other large-scale planning efforts, the applicants will need to determine what activities they wish to include in the HCP and, if necessary,which ones they wish to exclude. Generally, applicants should be encouraged to include as comprehensive a set of activities in the HCP as is practicable. This will maximize the permittee's long-term planning assurances, broaden legal coverage, and minimize the possibility that some future activity will not be covered by an issued permit. What is being authorized in a section 10 permit is incidental take, not the activities that result in the take. Similarly, a violation of the permit occurs only if the amount or extent of authorized take is exceeded or if the terms and conditions of the HCP or the permit are not 3-12 implemented,not necessarily because some unspecified activity has occurred. The legality of an incidental take occurring during a specific activity will depend on how the HCP is structured. In some regional HCPs,the permit may specify that a certain number of habitat acres may be modified during construction activities, but the specific types of construction are unspecified--in which case the construction type per se would not affect the legality of any resulting incidental take. However, other HCPs may analyze incidental take in the context of a specified activity to be conducted across the HCP area, such as forest management. In such cases, incidental take is only authorized in association with specifically analyzed activities. Even in the former case, an activity type that is not implicitly or explicitly covered by an HCP should not be allowed to "use"portions of the incidental take authorization at the expense of activities that are described. Unless broadly defined types of activities are described in the HCP (e.g., timber harvest, agriculture, or construction activities),then incidental take occurring during such activities within the plan area generally would not be authorized. In any case,the specificity with which activities are described in the HCP will depend on the applicant's objectives. They should be sufficiently described (as included or excluded)that the permittee or landowners subject to the permit can determine the applicability of the incidental take authorization to the activities they undertake. Determining appropriate activities to include in the HCP can involve the same considerations as those described in Section B.2(a) concerning the HCP boundary. Here again the desire for a comprehensive HCP must be balanced against the risk of over-complicating the plan. Also a factor is the willingness of any particular group to participate in the HCP process. No group can be forced to participate. Of course, not participating in the responsibilities of the HCP also means not enjoying the benefits of protection from the incidental take prohibition and regulatory streamlining. In some cases, specific landowners or industries may be reluctant to become involved in the HCP process. In such cases, Service representatives should assist the remaining participants in good faith,while encouraging "sideliners" to observe the benefits of the program. Of course, "non-participants" should understand that if their activities are not addressed in the HCP, either specifically or generically, they will not be covered by the incidental take permit. Moreover, if the permit applicant is a state, regional, or local governmental agency, "non- participants" may ultimately be affected by the terms and conditions of an HCP once the permittee begins to implement the HCP through the exercise of its regulatory powers. In other cases, a landowner may elect not to participate in an HCP for other reasons--for example, if they are negotiating a separate agreement or are operating under an existing permit. These factors can result in HCPs with unusual inclusions and exclusions. For example, in the Metropolitan Bakersfield HCP in California, oil development activities are specifically excluded from the planning area but are proposed for inclusion in the Kern County HCP, 3-13 which overlays the Bakersfield HCP (see Appendix 3). Sometimes a new HCP will overlay multiple existing HCPs, or some applicants may elect to pursue an HCP on their own even though a regional HCP is being developed in the same area. Also, more than one regional HCP may occur near each other within the same bio-regional province, or two such HCPs may occur within the range(s) of the same species. Such inclusions and exclusions are perfectly acceptable. Nevertheless,participants should be aware of coordination problems that can develop between HCPs in these types of cases. For example, it is important to ensure that mitigation programs for the same species are identical in adjacent HCPs. Also, the Services should not issue more than one permit for identical activities in the same area at the same time, since this could result in two differing sets of conditions for the same activities. In cases where a new HCP overlays an existing one, neither the Services nor the new permit-holder can force existing permittees to adopt conditions of the new permit without their consent--(however,there may be exceptions, such as when the new permittee is a state or local government with its own regulatory authority). Generally, however, the Services will not seek additional mitigation from existing HCP permit holders for the same activities affecting the same species under a broad regional plan. d. Determining Anticipated Incidental Take Levels. In determining the amount of incidental take that will be authorized during the life of the permit,three things must be determined: (1) how incidental take will be calculated; (2)the level of incidental take and related impacts expected to result from proposed project activities; and (3)the level of incidental take that the section 10 permit will actually authorize. The first depends on the ability of HCP participants to determine,to the extent possible,the number of individual animals of a covered species occupying the project or land use area or the number of habitat acres to be affected. Depending on this information,proposed incidental take levels can be expressed in the HCP in one of two ways: (1) in terms of the number of animals to be "killed, harmed, or harassed" if those numbers are known or can be determined; or(2) in terms of habitat acres or other appropriate habitat units (e.g., acre-feet of water)to be affected generally or because of a specified activity, in cases where the specific number of individuals is unknown or indeterminable. The latter is typically expressed as all individuals occupying a given area of habitat, in whatever habitat unit is being used. The next aspect depends on the number of animals or habitat units that occur in the project or planning area, and the likelihood that any given activity will result in take. This can be determined by first "overlaying" data on proposed activities--often in the form of maps--with biological data compiled from existing sources and collected in the field by the applicant. When this is completed, the effects of particular activities on species occupying project areas can be analyzed. Under Federal regulation (50 CFR 17.3), "harm" in the definition of take can include "significant habitat modification or degradation where it actually kills or injures wildlife by 3-14 '"` significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Therefore,habitat modification or destruction, to the extent the above effects occur, can constitute take and must be detailed in the HCP and authorized by the permit. "Harassment" is defined by regulation as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering." As with "harm," any action qualifying as harassment under this definition must be described in the HCP and authorized by the permit(see Chapter 7, Section B.1). After expected take levels have been estimated based on a comparison of proposed activities with species distribution in the plan area,the applicant and the Services can begin to determine the final outcome of the HCP. In general terms,this is done by determining what incidental take levels can be authorized that are consistent with the section 10 issuance criteria(i.e,that will not "appreciably reduce the likelihood of the survival and recovery of the species in the wild"), and developing a mitigation program that is also consistent with the issuance criteria(i.e.,that will minimize and mitigate "to the maximum extent practicable"). If, in the Services'judgment, initially anticipated incidental take levels exceed what can be permitted under the section 10 issuance criteria, additional take avoidance and other mitigation measures must be developed. These processes--determining anticipated incidental take, development of the mitigation program, and establishing authorized incidental take levels--are dynamic and do not necessarily occur in consecutive order as the above description might infer. e. Coordinating the HCP With Section 7 of the ESA. Section 7(a)(2) of the ESA requires all Federal agencies "in consultation with and with the assistance of the Secretary"to ensure that "any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of designated critical habitat. The section 7 implementing regulations (50 CFR Part 402)require, among other things, analysis of the direct and indirect effects of a proposed action,the cumulative effects of other activities on listed species, and effects of the action on critical habitat, if applicable. Consultation under section 7 of the ESA is the Federal agency's responsibility, not the applicant's. In the case of issuance of a section 10(a)(1)(B)permit, FWS or NMFS must conduct an intra-Service (or internal) consultation to ensure compliance of permit issuance with the provisions of section 7. However, although the consultation responsibilities is not the permit applicants,the applicant should help ensure that those considerations required of the Services by section 7 have been addressed in the HCP. Otherwise, the Services' section 7 consultation on proposed permit issuance might result in a jeopardy or adverse modification finding with respect to indirect or cumulative effects, listed plants, or critical habitat if the HCP has inadequately considered these issues. 'r'` 3-15 However, despite these additional considerations, in most cases the applicant will not actually experience a significant increase in responsibilities under the HCP because of the Services' associated section 7 responsibilities. This is because there are relatively high thresholds under section 7 (i.e.,jeopardy), and many of the same relevant biological considerations are already integrated into the HCP process [see Sections B.2(f)-(h) below]. In many cases, the procedural aspects of the section 7 consultation are more important to the applicant's interests than its substantive outcome. In the past, some have viewed the section 7 consultation for a section 10(a)(1)(B)permit as an independent review process that occurs after the HCP has been prepared and during the permit application processing phase. However,this approach left the permit applicant with no guarantee that the process of meeting the requirements of section 10(a)(1)(B)would result in issuance of the permit, since a section 7 consultation conducted late in the process could result in the discovery of unresolved issues,the return of an inadequate HCP to the applicant, or a jeopardy biological opinion. To avoid this, it is now Service policy to begin integrating the section 7 and section 10 processes from the beginning of the HCP development phase, and to regard them as concurrent and related, not independent and sequential, processes. In procedural terms, this means that considerations of section 7 consultation requirements should start at the beginning of the HCP development phase, not during the permit processing phase. It also means that if the Services and the applicant work together to develop an adequate HCP--one that meets the section 10 issuance criteria as well as the Services' applicable section 7 standards--then a "no jeopardy" biological opinion at the close of the section 7 consultation should be virtually assured. Service representatives should explain to HCP applicants at the outset of any HCP effort the Services' section 7 obligations, how those obligations affect the applicant, and how the two processes (sections 7 and 10) will be integrated. f. Addressing Indirect Project Effects. In some cases, it may be determined that activities being considered in an HCP would be likely to result in indirect effects to listed species. The implementing regulations of section 7 of the ESA define indirect effects as "those that are caused by the proposed action and are later in time, but still are reasonably certain to occur." In the HCP context, this would typically mean that activities under the HCP are expected to affect species outside the HCP plan area, or species that are inside the plan area but are not otherwise directly covered by the terms of the HCP. If expected indirect effects are serious enough to result in jeopardy or result in adverse modifications to critical habitat, and they have not been adequately treated in the HCP, the Services would have to deny the permit. Thus, indirect effects issues must be treated carefully during any HCP negotiation process. From a practical standpoint, one problem is that large-scale projects of the type addressed in many HCPs can have "ripple" effects that continue long past their point of origin. Following 3-16 '"� a causation chain of indirect effects from their point of origin to some specific effect, or vice versa, can be difficult, and assigning responsibility for all potential subsequent effects to the originator of a particular action may not be justified or practical. For example, some species addressed in HCPs occupy small habitat areas or have narrow habitat requirements and are therefore unusually vulnerable to biotic and abiotic factors such as fire, vegetation succession,predation, and interspecific competition. In these cases, human alteration of the landscape in and around such habitats can have heightened adverse effects or specific indirect effects that must be addressed if the habitats are to be considered viable and affected populations are to persist. A good example is development in endangered beach mice habitat,which results in increased pet populations and then increased predation on beach mice. The HCP in such cases must address these types of effects. In the southeast, for example, some approved HCPs have been predicated on the successful control of post-project, human-induced effects on endangered species populations that remain or are protected after development of adjacent areas. Permittees have agreed to provide funding to control predators and competitors of listed species, nuisance or exotic vegetation, or pollution, and to meet education and information needs in the local community. With these considerations in mind, the following guidance is provided about how to address indirect effects issues in HCPs. If a species is likely to be jeopardized as a result of the indirect effects of activities proposed in an HCP,the Services may not issue the permit unless these effects are adequately addressed. However, before an HCP is required to contain additional requirements to adequately address indirect effects under section 7: (1)the risk of r-. jeopardy should be clear and reasonably certain to occur; and(2)the indirect effects in question must be reasonably foreseeable and a proximate consequence of the activities proposed under the HCP. The standard for imposing additional requirements on an HCP is the likelihood of jeopardy, not just the existence of indirect effects. g. Consideration of Plants in the HCP and Permit. The take prohibition for federally listed plants under the ESA is more limited than for listed animals. Section 9(a)(2)(B)prohibits the removal of listed plants or the malicious damage of such plants on areas under Federal jurisdiction, or the destruction of listed plants on non-Federal areas in violation of state law or regulation. Thus,the ESA does not prohibit the incidental take of federally listed plants on private lands unless the take or the action resulting in the take is a violation of state law (which in most cases eliminates the need for an incidental take permit for plants). Nevertheless, the Services recommend that permit applicants consider listed plants in HCPs. This is because the section 7(a)(2)prohibition against jeopardy applies to plant as well as wildlife species; and if the section 7 consultation on a section 10 permit application concludes that issuance of the permit for wildlife species would jeopardize the existence of a listed plant species,the permit could not be issued. To avoid this outcome, the applicant should ensure that actions proposed in the HCP are not likely to jeopardize any federally listed plant species. - 3-17 However, if it is determined that the proposed HCP is not likely to jeopardize the continued existence of any federally listed plant species,then any such plants present within the HCP area that are on private or other non-Federal lands are protected against incidental take only to the extent that state law applies. Beyond that the applicant has no further responsibility with respect to listed plants. In the spirit of the conservation planning process, however, the Services will encourage applicants to address endangered or threatened plants in their HCPs. Although take of listed plants does not require a section 10 permit in most cases,the names of any plants addressed in the HCP can be placed on the permit at the request of the applicant when it is issued. This might be done: (1)because a particular plant is protected by state law and is subject to the section 9 take prohibition; or(2)to protect the permittee's interests should the legal status of any plant change during the life of the permit as a result of changes to the ESA. This approach is acceptable and is encouraged if the permit applicant requests it or it otherwise increases the applicant's confidence in the long-term assurances under the permit. It is also consistent with the treatment of unlisted wildlife species in section 10 permits as described in Chapter 4. h. Addressing Effects on Critical Habitat. Section 7(a)(2)prohibits the "destruction or adverse modification" of designated critical habitat by any action authorized, funded, or carried out by a Federal agency. The section 7 regulations define "destruction or adverse modification" as "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species." The regulations for section 4 of the ESA(50 CFR 424.12)describe the "constituent elements" of critical habitat /'1 as "those that are essential to the conservation of the species" including, but not limited to, "roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation,vegetation type,tide, and specific soil types." Thus, in issuing section 10 permits,the Services must ensure that the constituent elements of critical habitat will not be altered or destroyed by proposed activities to the extent that the survival and recovery of affected species would be appreciably reduced. However,these section 7 obligations typically impose few restrictions on the HCP applicant in addition to those required by section 10, because the section 10 issuance criteria also prohibit appreciably reducing the "likelihood of the survival and recovery of the species in the wild" [section 10(a)(2)(B)]. In other words, the inherent biological value of areas designated as critical habitat typically would prevent significantly greater alteration of their constituent habitat elements under section 10 than would be permissible under section 7. Nevertheless, to the extent that a proposed HCP might result in impacts to critical habitat, such impacts should be described and evaluated in the biological opinion concluding section 7 consultation on the permit application. Some HCPs encompass areas that have been or have the potential to be designated as critical habitat. To fulfill the Service's section 7 compliance responsibilities, all HCPs must be 3-18 reviewed to determine whether they are likely to jeopardize the continued existence of the species or cause adverse modification to designated critical habitat. The Services will provide technical assistance and work closely with the applicant throughout the development of the HCP to reduce the probability of developing an HCP that would not meet these criteria. It is possible to approve an HCP that authorizes land use or development activities within an area designated as critical habitat. The activities approved under an HCP could include a variety of land or natural resource use activities that modify critical habitat on a large scale without the activities being deemed an adverse modification contrary to the requirements of section 7(a)(2). The authorization of activities in critical habitat through the HCP process is possible because the adverse modification of critical habitat is analyzed by determining the effects on the entire area designated as critical habitat or an administrative part or unit of the critical habitat, not on a smaller scale of particular individual acres. In addition,the HCP permittee must minimize and mitigate for any effects caused by the authorized activity, which would offset or reduce the significance of adverse effects to the critical habitat. Thus,the overall net affect of authorized land use activities for a particular HCP can be brought within the range of effects which is allowable under section 7. 3. Mitigation Programs& Standards. Mitigation programs under HCPs and section 10 permits are as varied as the projects they address. Consequently,this handbook does not establish specific "rules" for developing mitigation programs that would limit the creative potential inherent in any good HCP effort. On the other hand,the standards used in developing HCPs must be adequate and consistent regardless of which Service office happens to work with a permit applicant. Mitigation programs should be based on sound biological rationale; they should also be practicable and commensurate with the impacts they address. This section sets forth some fundamental standards for mitigation programs and suggests some broad mitigation strategies, but leaves the development of specific programs to individual applicants and Service personnel. Mitigation actions under HCPs usually take one of the following forms: (1)avoiding the impact(to the extent practicable); (2) minimizing the impact; (3)rectifying the impact; (4) reducing or eliminating the impact over time; or(5)compensating for the impact. For example,project effects can be (1) avoided by relocating project facilities within the project area; (2)minimized through timing restrictions and buffer zones; (3)rectified by restoration and revegetation of disturbed project areas; (4)reduced or eliminated over time by proper management, monitoring, and adaptive management; and (5) compensated by habitat restoration or protection at an onsite or offsite location. In practice,HCPs often use several of these strategies simultaneously or consecutively. Other types of mitigation not mentioned may also be used. a. Regulatory Standards & Relationship to Recovery. 3-19 Issuance criteria under section 10 of the ESA require that the HCP applicant "minimize and mitigate" the impacts of any incidental taking authorized by a section 10 permit, and that issuance of the permit not "appreciably reduce the likelihood of the survival and recovery of the species in the wild" (see Chapter 7). Section 7(a)(2) of the ESA requires that issuance of a permit does not "jeopardize the continued existence of' any federally listed species, or result in "destruction or adverse modification" of designated critical habitat. The implementing regulations of section 7 define "jeopardize" as "to engage in an action that reasonably would be expected, directly or indirectly,to reduce appreciably the likelihood of both the survival and recovery of the species in the wild by reducing the reproduction, numbers, or distribution of that species"--this is essentially identical to the section 10 issuance criterion cited above. Section 7(a)(2)also requires use of"the best scientific and commercial data available" in fulfilling its provisions. No other specific mitigation standards for HCPs are specified under the ESA. Issuance of a section 10 permit must not "appreciably reduce"the likelihood of the survival and recovery of the species in the wild. Note that this does not explicitly require an HCP to recover listed species, or contribute to their recovery objectives outlined in a recovery plan. This reflects the fact that HCPs were designed by Congress to authorize incidental take, not to be mandatory recovery tools. However, recovery is nevertheless an important consideration in any HCP effort. This is because, some HCPs may encompass all or much of a species'range and address crucial biological issues; because of the inherent biological significance of such planning areas, a ,/"'1 poorly designed HCP could readily trigger the "appreciably reduce" or "jeopardize" standard. Second, many HCPs, even smaller ones, can be said to contribute to recovery to the extent that individually or collectively they provide for dependable conservation actions and long- term biological protections. Thus, contribution to recovery is often an integral product of an HCP,but it is not an explicit statutory requirement. To put this in practical terms, applicants should be encouraged to develop HCPs that produce a net positive effect for the species or contribute to recovery plan objectives. The Services should also assess the extent to which an HCP's mitigation program is consistent with recovery plans. In general, conservation plans that are not consistent with recovery plan objectives should be discouraged. Similarly, HCPs that might preclude a significant recovery option, unless they otherwise contribute substantially to the goal of recovery should also be discouraged. In cases where a recovery plan is not available,the Services must use other available biological information and its best judgement to encourage the development of HCPs that would aid in a species' recovery. b. Must An HCP Benefit the Species? 3-20 '� Whether or not an HCP must benefit a species is similar to its relationship to recovery objectives. No explicit provision of the ESA or its implementing regulations requires that an HCP must result in a net benefit to affected species. However,just as they can contribute to recovery, HCPs can also benefit the species they address because of the conservation programs they establish and the long-term assurances they provide. This is especially true of regional and other large-scale HCPs that address all or much of a species'range. Wherever feasible,the FWS and NMFS should encourage HCPs that result in a "net benefit" to the species. c. Mitigation for Habitat Loss. Activities conducted under HCPs frequently involve permanent habitat losses (or temporary habitat disturbances), for which the permittee mitigates by acquiring or otherwise protecting replacement habitat at an onsite or offsite location. Commonly referred to as "habitat mitigation,"this strategy is acceptable under the HCP process so long as such mitigated habitat losses are consistent with the section 10 issuance criteria. One form of habitat mitigation is the "habitat bank" approach, in which habitats are "banked" (protected through conservation easement or other means)prior to a project. These lands are then utilized as needed for mitigation purposes. A variation on this scheme is the "mitigation credit" system--in which "banked" habitats are established as "credits" (usually on a per-acre basis), and the habitat banker then uses the credits as needed or sells them to other parties requiring mitigation lands at a fair market price. The latter system has considerable promise as a mitigation strategy because: (1) it allows owners of endangered species habitat to derive economic value from their land as habitat; (2) it allows parties with mitigation obligations to meet their obligations rapidly(mitigation lands are simply purchased as credits); and(3)the mitigation lands are provided prior to the impact(eliminating uncertainty about whether a permittee might fail to fulfill the HCP's obligations after the impact has occurred). Still another approach is the "mitigation fund," in which a permittee pays a cash amount as determined by the HCP into an account administered by a suitable entity, and where other such contributions are pooled into a habitat acquisition fund. The type of mitigation habitat and its proximity to the area of impact will need to be considered. Generally,the location of replacement habitats should be as close as possible to the area of impact; it must also include similar habitat types and support the same species affected by the HCP. However, there may be good reason to accept mitigation lands that are distant from the impact area--e.g., if a large habitat block as opposed to fragmented blocks can be protected or if the mitigation lands are obtained through a mitigation fund. Ultimately, the location of mitigation habitat must be based on individual circumstances and good judgement. Potential types of habitat mitigation include, but are not limited to: (1) acquisition 3-21 of existing habitat; (2)protection of existing habitat through conservation easements or other legal instruments; (3) enhancement or restoration of disturbed or former habitats; (4) prescriptive management of habitats to achieve specific biological characteristics; and(5) creation of new habitats. Here again,the specific strategy or combination of strategies used will depend on the species and type of habitat involved. In some cases, acquisition of high- quality existing habitat will be the best approach--for example,where the habitat type takes years to develop (e.g., old-growth forest). However, if such habitat is continually being lost, a strategy based on this method alone could result in net loss of habitat value. In other cases, restoring degraded habitat or creating new ones is the best strategy--for example,where the habitat type is relatively easy to manipulate (e.g., grasslands). Where affected species depend on natural disturbance regimes that can be replicated through management regimes (e.g.,prescribed fire or flooding),prescriptive management may be preferable to habitat acquisition or protection alone. Certain caveats may apply to these strategies, however. For example, when a mitigation program involves creation of new habitat or restoration of degraded habitats, HCP participants should ensure that techniques used are proven and reliable or, if relatively new, that contingency measures or adaptive management procedures are included to correct for failures. Sometimes,the HCP applicant may need to conduct activities prior to the time when replacement habitats can be provided. This is acceptable so long as the HCP provides legal or financial assurances that the permittee will fulfill the HCP's obligations. One way to /"N accomplish this is through Letters of Credit controlled by the government until the mitigation lands have been provided. Another method is requiring a specified cash payment into a mitigation fund prior to commencement of HCP activities. However, such payments alone are not regarded as acceptable mitigation. Unless the fund is ultimately used and habitat is otherwise acquired. Mitigation funds have often been used in regional HCPs in which the responsible party for habitat mitigation under the HCP is a state or local government agency. Other examples are mitigation funds or other well-established mitigation programs utilized by small-landowners [see below, Section B.3(d)]. In such cases,the responsibilities of individual contributors may end with the payment, and any additional performance requirement would either be waived or would belong to the permitted agency. One common issue raised during HCP negotiations is how long mitigation lands must be conserved. When habitat losses permitted under an HCP are permanent, protection of mitigation lands normally should also be permanent(i.e., "in perpetuity"). Mitigation for temporary habitat disturbances can be treated more flexibly; however, management logistics and other considerations may still dictate permanent mitigation for temporary impacts, though typically at a lesser rate than for permanent ones. d. Funding Recovery Measures as Mitigation. 3-22 Another issue in cases where habitat is lost during HCP activities is whether funds contributed for purposes other than habitat acquisition or protection--e.g., species research-- can serve as habitat mitigation. First and foremost,mitigation should address compensate for habitat lost through the permitted activities of the HCP by establishing suitable habitat for the species that will be held in perpetuity, if possible. For example, the mitigation requirement for low-effect HCPs that have a negligible effect on habitat could be to enhance existing habitat so that it meets the species' requirements. Generally, research is not considered a preferred mitigation strategy, since the type of mitigation is usually related directly to the type of effect. It is acceptable in some cases for funding to be provided to State or Federal agencies to implement recovery actions within critical habitat,to restore degraded habitat, to address anthropogenic influences, and for conservation actions on larger, more secure populations of the affected species on public lands. In some cases,matching Federal/private funding has been developed under HCPs for such purposes. e. Mitigation for Small-Scale, Low-Effect Projects. It is important that methods be established by state and Federal wildlife agencies and other organizations that allow proponents of small projects or small-scale land use proposals to participate in larger HCPs, or that make convenient mitigation strategies accessible to low- effect HCPs. For example, it is often difficult for an individual to locate and acquire a few acres of mitigation habitat, since lands are usually sold by the lot or in large segments. A good way to accommodate this problem is to establish mitigation fund accounts that accumulate funds until relatively large-scale acquisitions can be effected [see above, Section B.3(c)]. Habitat banks are another good way to handle this situation. Avoid requiring permittees to meet habitat mitigation requirements without a practical, accessible means of meeting that requirement. In general, flexibility is needed in addressing the unique circumstances often associated with small landowners and small-scale, low-effect HCPs. f. Consistency in Mitigation Standards. Mitigation measures required by individual FWS or NMFS offices should be as consistent as possible for the same species. This can be challenging when a species encompasses multiple offices or regions, but is essential. The first step is good communication between offices. The next is establishment of specific standards--e.g., for survey methods, buffer zones, or mitigation methods--and consistent implementation of those standards. Field Offices should coordinate these standards between biologists in the same office; Regional Offices should ensure consistency among Field Offices. Mitigation standards should also be developed in coordination with state wildlife agencies. The Service should not apply inconsistent mitigation policies for the same species,unless differences are based on biological or other good reasons and are clearly explained. Consistent mitigation strategies help streamline the /'1 3-23 HCP development process--especially for smaller HCPs--by providing readily available standards which applicants can adopt in their HCPs. g. Adaptive Management. The Services often incorporate adaptive management concepts into the HCP process to minimize the uncertainty associated with listed or unlisted species where there are gaps in the scientific information or their biological requirements. Over the years,there has been an increase in the diversity and geographical size of HCPs. As of late 1995, most HCPs approved were for planning areas of less than 1,000 acres. However, of the 200 HCPs being developed as of early 1996, approximately 25 exceed 10,000 acres, 25 exceed 100,000 acres, and 18 exceed 500,000 acres. This suggests that HCPs are evolving from a process developed primarily to address single developments to broad-based, landscape level planning tools utilized to achieve long-term conservation goals for listed and unlisted species,while allowing applicants to proceed with their land use and development. For some species, not all of the scientific information needed to develop comprehensive long-term conservation strategies to conserve species may be available at the time of HCP development. Where these data gaps occur, not all of the questions regarding the long-term effects of implementing these HCPs can be answered. When significant uncertainty exists, it can be addressed through the incorporation and implementation of adaptive management measures into HCPs. For those HCPs with significant uncertainty, incorporating adaptive management provisions into the HCP becomes important to the planning process and the /'1 long-term interest of affected species. For example, an applicant's commitment to conduct watershed analyses(scientifically examining the conditions within watersheds and making site-specific recommendations)and then adjusting management strategies based on the results of the analyses for part or all of their lands is one form of adaptive management that has been applied to HCPs in the Pacific Northwest. Through adaptive management,the biological objectives (or goals) of a conservation strategy are defined using techniques, such as models of the ecological system that includes its components, interactions, and natural fluctuations. If existing data makes it difficult to predict exactly what mitigation is needed to achieve a biological objective, then an adaptive management approach can be used in the HCP. The primary reason for using adaptive management in HCPs is to allow for changes in the mitigation strategies that may be necessary to reach the long-term goals (or biological objectives) of the HCP, and to ensure the likelihood of survival and recovery of the species in the wild. Under adaptive management,the mitigation activities of the HCP could be monitored and analyzed to determine if they are producing the required results (e.g.,properly functioning riparian habitats). If the desired results were not being achieved,then adjustments in the mitigation strategy could be considered through an adaptive management clause of the HCP. 3-24 Research can fill data gaps and/or test the effectiveness of management and mitigation strategies,which can then be modified as new information is obtained. Adaptive management, if used, can provide a reliable means for assessing the mitigation and minimizing strategies outlined in HCPs,producing better ecological knowledge, and developing appropriate modifications that would improve the mitigation strategy for a species. The base mitigation strategy or initial minimization and mitigation measures which are implemented must be sufficiently vigorous so that the Service may reasonably believe that they will be successful. An adaptive management approach is particularly useful when significant questions remain regarding an HCP's initial mitigation strategy. The Services should not approve an HCP using conservation strategies that have a low likelihood of success. Monitoring is an important tool in an adaptive management approach and should be designed in a way that ensures data will be properly collected, analyzed, and used to adjust mitigation strategies, as appropriate. A key element of adaptive management is the establishment of testable hypotheses linked to the conservation strategies and their biological objectives. If monitoring determines that biological conditions are outside specific parameters or thresholds,which are defined in the HCP,the conservation strategies should be reviewed. The "thresholds" for review should be linked to key elements of the HCP and should be obtainable through monitoring data collected during the implementation of the HCP. These "threshold" levels should be clearly defined in the HCP and should be based upon measurable criteria, and monitoring should be clearly linked to those measurable criteria. The establishment of measurable criteria would dictate the type of monitoring including the number of samples, distribution of samples, and use of controls. Prior to the issuance of a permit, there should be a clear understanding and agreement between the Services and the permittee as to the mitigation range of adjustments which might be required as a result of any adaptive management provisions. A mechanism for determining the magnitude of strategy change to be employed, based upon the results of the monitoring and the level of deviation significance from the desired condition, should be developed in advance so all parties are clear in this regard and can react at the appropriate time. Corrective actions to any of the conservation strategies in the HCP should be based on significant "non-achievement" of the HCP's base mitigation. This does not preclude the Services from working with the applicant to develop a strategy to compensate for external factors (e.g., catastrophic fires)or requesting the applicant to voluntarily increase the base mitigation strategy because of these external factors. 4. Monitoring Measures. 3-25 The section 10 regulations require that an HCP specify the measures the applicant will take to "monitor" the impacts of the taking resulting from project actions [50 CFR 17.22(b)(1)(iii)(B) and 50 CFR 222.22(b)(5)(iii)]. Monitoring measures described in the HCP should be as specific as possible and be commensurate with the project's scope and the severity of its effects. For regional and other large-scale HCPs, monitoring programs 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 requirements throughout the life of the HCP, and where appropriate, adaptive management options (see Chapter 3, Section B.3(g)). The following steps are logical elements for consideration in developing HCP monitoring programs for regional or other large-scale HCPs: o Develop objectives for the monitoring program. Any monitoring program associated with HCPs should answer specific questions or lead to specific conclusions. If the objectives are well-developed,they will help shape a complete monitoring program. o Describe the subject of the monitoring program--e.g., effects on populations of affected species, effects on the habitat of the species, or effects on both. o Describe variables to be measured and how the data will be collected. Make sure these are consistent with the objectives of the monitoring program. o Detail the frequency, timing, and duration of sampling for the variables. Determining how frequently and how long to collect data is important to the success or failure of the monitoring program. If the interval between samples is too long or too short, the monitoring program may not detect an effect. The frequency,timing, and duration of the sampling regimen should also relate to the type of action being evaluated,the species affected by the action, and the response of the species to the effects produced by the action. o Describe how data are to be analyzed and who will conduct the analyses. A monitoring program is more effective when analytical methods are integrated into the design. For example,parametric and non-parametric statistical analyses require different sample sizes, which affect the frequency,timing, and duration of sampling. 3-26 '~ o Monitoring must be sufficient to detect trends in species populations in the plan area but should be as economical as possible. Avoid costly monitoring schemes that divert funds away from other important HCP programs, such as mitigation. o Monitoring programs can be carried out by a mutually-identified party other than the permittee, so long as this is specified in the HCP, funding is provided, and the party is qualified. The FWS and NMFS also have a responsibility to monitor the implementation and success of HCPs. The Services may agree to specific monitoring responsibilities under the HCP, Implementing Agreement, or as part of the incidental take statement issued in conjunction with the section 7 biological opinion. Even if not specified in this manner,the agency still has the responsibility to monitor compliance with the terms of particular HCPs, including any adaptive management commitments incorporated into the HCP, and the section 10 program generally. One way to achieve this is to ensure that requirements for monitoring and status reports are included in HCPs where needed and by ensuring that such reports are submitted by permittees and reviewed by FWS or NMFS staff. For regional HCPs, another way is to establish technical review teams to periodically evaluate HCP compliance and the success of adaptive management programs. Such teams could include species experts and representatives of the permittee, FWS,NMFS, and other affected public agencies. To maintain the credibility of the HCP, it may be beneficial to submit the technical team's findings to occasional review by recognized experts in pertinent fields (e.g., conservation biologists, re-vegetation specialists, etc.). Not all of the above steps are necessary for small-scale, low-effect HCPs, and should only be used as appropriate. 5. Unforeseen Circumstances/Extraordinary Circumstances. Congress recognized in the section 10 amendments that "...circumstances and information may change over time and that the original plan might need to be revised. To address this situation the Committee expects that any plan approved for a long-term permit will contain a procedure by which the parties will deal with unforeseen circumstances." (H.R. Rep.No. 97- 835, 97th Congress, Second Session). Accordingly, Federal regulation requires such procedures to be detailed in the HCP [50 CFR 17.22(b)(l)(iii)(C)]. At the same time the legislative history states that: The Committee intends that the Secretary may utilize this provision to approve conservation plans which provide long-term commitments regarding the conservation of listed as well as unlisted species and long-term assurances to the proponent of the conservation plan that the terms of the plan will be 3-27 adhered to and that further mitigation requirements will only be imposed in accordance with the terms of the plan. In the event that an unlisted species addressed in the approved conservation plan is subsequently listed pursuant to the Act, no further mitigation requirements should be imposed if the conservation plan addressed the conservation of the species and its habitat as if the species were listed pursuant to the Act." (H.R. Report No. 97-835, 97th Congress, Second Session, and 50 FR 39681-39691.) This Congressional history illustrates the potential tension between two primary goals of the HCP program: (1)adequately minimizing and mitigating for the incidental take of listed species, and(2)providing regulatory assurances to section 10 permittees that the terms of an approved HCP will not change over time, or that necessary changes will be minimized to the extent possible, and will be agreed to by the applicant. How to reconcile these objectives remains one of the central challenges of the HCP program. "Unforeseen circumstances," also referred to as "extraordinary circumstances," in the past have been broadly defined to include a variety of changing circumstances that may occur over the life of an ongoing HCP. However, it is important to distinguish between the terms "unforeseen circumstances," or "extraordinary circumstances," versus "changed circumstances." "Changed circumstances" are not uncommon during the course of an HCP and can reasonably be anticipated and planned for(e.g., the listing of new species, modifications in the project or activity as described in the original HCP, or modifications in the HCP's monitoring program). "Unforeseen circumstances" or "extraordinary circumstances" however, means changes in circumstances surrounding an HCP that were not or could not be anticipated by HCP participants and the Services,that result in a substantial and adverse change in the status of a covered species. With respect to anticipated and possible changed circumstances,the HCP should discuss measures developed by the applicant and the Services to meet such changes over time, possibly by incorporating adaptive management measures for covered species in the HCP. HCP planners should identify potential problems in advance and identify specific strategies or protocols in the HCP for dealing with them, so that adjustments can be made as necessary without having to amend the HCP. The "Unforeseen/Extraordinary Circumstances" section of the HCP should be more limited. It should discuss how those changes in the circumstances surrounding the HCP that cannot effectively be anticipated by HCP negotiators will be dealt with in the future. It must also be consistent with the Department of Interior's and Department of Commerce's "No Surprises" policy. a. The "No Surprises" Policy. 3-28 To address the problem of maintaining regulatory assurances and providing regulatory certainty in exchange for conservation commitments, the Department of the Interior(DOI) and Department of Commerce (DOC)have jointly established a "No Surprises"policy for HCPs. The "No Surprises"policy sets forth a clear commitment by the FWS,NMFS, DOI, and DOC that,to the extent consistent with the requirements of the Endangered Species Act and other Federal laws,the government will honor its agreements under an approved HCP for which the permittee is in good faith implementing the HCP's terms and conditions. The specific nature of these provisions will vary among HCPs depending upon individual habitat and species needs. The "No Surprises" policy provides certainty for private landowners in ESA Habitat Conservation Planning through the following assurances: o In negotiating "unforeseen circumstances" provisions for HCPs,the Fish and Wildlife Service and National Marine Fisheries Service shall not require the commitment of additional land or financial compensation beyond the level of mitigation which was otherwise adequately provided for a species under the terms of a properly functioning HCP. Moreover, FWS and NMFS shall not seek any other form of additional mitigation from an HCP permittee except under extraordinary circumstances. This means that if unforeseen circumstances occur during the life of an HCP,the FWS and NMFS will not require additional lands, additional funds, or additional restrictions on lands or other natural resources released for development or use, from any permittee, who in good faith, is adequately implementing or has implemented an approved HCP. Once a permit has been issued and its terms are being complied with,the permittee may remain secure regarding the agreed upon cost of mitigation, because no additional mitigation land, funding, or land use restrictions will be requested by the Services. The policy also protects the permittee from any other forms of additional mitigation, except where extraordinary circumstance exist. Other methods of responding to the needs of the affected species, such as government action and voluntary conservation measures by the permittee,remain available to assure the requirements of the ESA are satisfied. Consequently,the "No Surprises" policy also provides that: o If additional mitigation measures are subsequently deemed necessary to provide for the conservation of a species that was otherwise adequately covered under the terms of a properly functioning HCP,the obligation for such measures shall not rest with the HCP permittee. 3-29 This means that in cases where the status of a species addressed under an HCP worsens, the n primary obligation for implementing additional conservation measures would be borne by the Federal government, other governmental agencies,private conservation organizations, or other private landowners who have not yet developed an HCP. "Adequately covered" for listed species refers to any species addressed in an HCP which has satisfied the permit issuance criteria under section 10(a)(2)(B) of the ESA. For unlisted species,the term refers to any species which is addressed in an HCP as if it were listed pursuant to section 4 of the ESA, and in which HCP conditions for that species would satisfy permit issuance criteria under section 10(a)(2)(B) of the ESA if the species were listed. "No Surprises" assurances apply only to species that are adequately covered in the HCP. Species should not be included in the HCP permit if data gaps or insufficient information makes it impossible to craft conservation/mitigation measures for them. Such data gaps can be overcome, however, through the inclusion of adaptive management clauses in the HCP (See Chapter 3, Section 3.B(g)). o If extraordinary circumstances warrant the requirement of additional mitigation from an HCP permittee who is in compliance with the HCP's obligations, such mitigation shall maintain the original terms of the HCP to the maximum extent possible. Further, any such changes shall be limited to modifications within Conserved Habitat areas or to the HCP's operating conservation program for the affected species. Additional mitigation requirements shall not involve the payment of additional compensation or apply to parcels of land available for development or land management under the original terms of the HCP without the consent of the HCP permittee. This means that if extraordinary circumstances are found to exist,the Services will consider additional mitigation measures; however, such measures must be as close as possible to the terms of the original HCP and must be limited to modifications within Conserved Habitat areas or the HCP's operating conservation program or to lands that are already protected by the HCP. New mitigation measures should not include requirements for additional land protection,payment of funds, or apply to lands available for development or use under the HCP, unless the permittee consents to such additional measures. "Modifications within Conserved Habitat areas or to the HCP's operating conservation program" means limiting such changes to plan areas explicitly designated for habitat protection or other conservation uses, or redirecting or increasing the intensity, range, or effectiveness of conservation efforts in such areas, provided that any such changes do not impose new restrictions or financial compensation on the permittee's activities. For example, if a developer had agreed to dedicate a certain amount of funding annually in support of a particular conservation program (e.g., habitat restoration) but subsequent research demonstrated that greater conservation benefits could be achieved by redirecting funding into depredation control, and extraordinary circumstances warranted such a shift,the No Surprises policy would allow the modification since it would impose no new funding burden on the permittee. 3-30 The policy also sets out criteria for determining whether and when extraordinary circumstances arise where the government could request review of certain aspects of the HCP's conservation program. o The FWS and NMFS shall have the burden of demonstrating that such extraordinary circumstances exist, using the best scientific and commercial data available. Their findings must be clearly documented and based upon reliable technical information regarding the status and habitat requirements of the affected species. o In deciding whether any extraordinary circumstances exist which might warrant requiring additional mitigation from an HCP permittee, FWS and NMFS shall consider, but not be limited to,the following factors: (a) size of the current range of affected species; (b)percentage of range adversely affected by the HCP; (c) percentage of range conserved by the HCP; (d) ecological significance of that portion of the range affected by the HCP; (e) level of knowledge about the affected species and the degree of specificity of the species' conservation program under the HCP; (f)whether the HCP was originally designed to provide an overall net benefit to the affected species and contained measurable criteria for assessing the biological success of the HCP; and (g)whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild. The first of these two measures, on the burden of proof, is self-explanatory. The second identifies some factors to be considered by the Services in determining whether extraordinary circumstances exist. Generally,the primary focus of inquiry would be level of biological peril to species covered by the HCP in question, and the degree to which the welfare of those species is tied to a particular HCP. For example, if the species is declining rapidly, and the HCP in question encompasses an ecologically insignificant portion of the species'range, then extraordinary circumstances typically would not exist. Conversely, if the HCP in such circumstances encompasses a majority of the species' range, then extraordinary circumstances justifiably could be said to exist. o The FWS and NMFS shall not seek additional mitigation for a species from an HCP permittee where the terms of a properly functioning HCP agreement were designed to provide an overall net benefit for that species and contained measurable criteria for the biological success of the HCP which have been or are being met. This provision means that the Services will not attempt to impose additional mitigation measures of any type where and HCP was intentionally designed to have a net positive impact upon a species. It is intended to encourage HCP applicants to develop HCPs that provide an overall net benefit to affected species. It does not mean that any HCP must in �"1 3-3 1 fact have already achieved a net benefit before the "No Surprises" policy applies. Rather,the achievement of such benefits should be measured through a clearly articulated set of biological goals and an adequate monitoring program for measuring progress for achieving those goals. "Properly functioning HCP" means any HCP whose provisions have been or are being fully implemented by the permittee and in which the permittee is in full compliance with the terms and conditions of the permit. o Nothing in this policy shall be construed to limit or constrain the Services or any other governmental agency from taking additional actions at its own expense to protect or conserve a species included in an HCP. This means the Services can intercede on behalf of a species at their own expense at any time and be consistent with the assurances provided the permittee under this policy and the permit. Neither is there anything in the "No Surprises" policy that prevents the Services from requesting a permittee to voluntarily undertake additional mitigation on behalf of affected species,though of course the permittee is under no obligation to comply. FWS and NMFS have a wide array of authorities and resources that can be utilized to provide additional protection for threatened or endangered species included in an HCP. Therefore, in meeting their commitment under the "No Surprises" policy (consistent with their obligations under the ESA), it is extremely unlikely that the Services would have to resort to protective or conservation action requiring new appropriations of funds by Congress. In such an unlikely event, such actions would necessarily be subject to the requirements of the Anti-Deficiency Act and the availability of funds appropriated by the Congress. Sample language for including "No Surprises" assurances in the HCP or Implementing Agreements is provided in Sections 8.4 and 13.3(a)of the "template" Implementing Agreement in Appendix 4. b. HCP Amendments. Amendment of a section 10(a)(1)(B)permit is required when the permittee wishes to significantly modify the project, activity, or conservation program as described in the original HCP. Such modifications might include significant boundary revisions, alterations in funding or schedule, addition of a species to the permit that was not addressed in the original HCP, or adjustments to the HCP necessitated by unforeseen circumstances. A permit amendment consists of the same process as the original permit application, requiring an amendment to the HCP addressing the new circumstance(s), a Federal Register notice,NEPA compliance, and an intra-Service section 7 consultation. 3-32 Some amendments to an HCP commonly needed over the life of a permit are minor and can be incorporated in a more expedited fashion. These types of amendments include corrections in land ownership; minor revisions to survey, monitoring, or reporting protocols; and minor changes in reserve boundaries that result in no net loss of reserve land or do not otherwise alter the effectiveness of the HCP. They can be incorporated into the HCP in one of two ways. First,the HCP and permit can be formally amended just as with more significant changes. However, documentation requirements are often less for a permit amendment than for the original permit application. For example,the NEPA analysis for the amendment can be tiered off the NEPA analysis for the original permit(40 CFR 1502.20), or the original NEPA analysis can be incorporated by reference into the amendment's supporting documents (50 CFR 1502.21). Also,where an original permit application required an EIS,the amendment application might require an EA only. Where appropriate, a permit amendment can also be treated as a low-effect HCP, which is categorically excluded from NEPA [see Chapter 1, Section F.2]. The HCP can also be amended administratively without formal amendment of the permit itself. This type of expedited amendment procedure is encouraged, but only when: (1)the amendment has the unanimous consent of the permittee and FWS or NMFS; (2)the original HCP established specific procedures for incorporating minor amendments so that the public had an opportunity to comment on the process, and such amendments are consistent with those procedures; (3)the HCP defines what types of amendments are considered minor; (4) a written record of any such amendments is prepared; and(5)the net effect on the species involved and level of take resulting from the amendment is not significantly different than analyzed under the original HCP and the Service's decision documents. It is important to distinguish between amendments to the HCP and amendments to the permit itself. Changed circumstances might require an amendment to both, but an amendment to either the HCP or the permit without an associated amendment to the other is possible. Minor changes in the HCP can be completed administratively without amending the permit. Similarly, amendment to the permit without a change in the HCP can also occur--for example,when an unlisted species that was addressed in the HCP is subsequently listed and is added to the permit,though permit amendments in such cases are not always necessary. Chapter 4 describes the procedures for addressing unlisted species in section 10 permits. Chapter 6, Section G contains further discussion about permit amendments generally. 6. Funding. The ESA requires that the HCP detail the funding that will be made available to implement the proposed mitigation program. Measures requiring funding in an HCP typically include onsite measures during project implementation or construction (e.g.,pre-construction surveys, biological monitors, exclusion fences, etc.), as well as onsite and offsite measures 3-33 required after completion of the project or activity (e.g., revegetation of disturbed areas and acquisition of mitigation lands). Large-scale, regional HCPs should require funds for long- term needs such as biological monitoring and habitat acquisition programs. Some will even require perpetual funding mechanisms to support long-term management of mitigation lands or for monitoring. For low-effect HCPs with minor impacts, funding needs may be limited to activities such as pre-construction, post-construction, habitat restoration, or surveys and payment into a mitigation fund; longer-term funding measures typically are not needed. For relatively small-to medium-sized projects involving only one or two applicants, the funding source is usually the permittee and funding is provided immediately before project activities commence, immediately after, or in stages. However,when habitat modification or other take occurs before mitigation measures (e.g., acquisition of mitigation lands)are implemented, completion of the mitigation requirements should be ensured through a Letter of Credit or other means [see above, Section B.3]. Funding of regional HCPs can be more complicated because they generally cover large areas, many activities, and require significant budgets. Consequently, regional HCPs usually are funded jointly rather than by any single contributor. Funding strategies for regional HCPs can include: (1) development fees paid on a per-acre (or other)basis; (2) other types of mitigation fees (e.g.,water surcharges, fees targeted to specific activities or industries); (3) funds contributed by non-profit or private interests; (4) state or Federal funds; (5) assessment districts under state law or county ordinance; and(6)tax check-off programs. n Because of their size and scope, regional HCPs often face two funding challenges--the costs of developing and implementing the HCP. Funding problems for these HCPs can be especially difficult during the HCP development phase,which typically occurs before funding mechanisms for the completed HCP are in place. Where appropriate, FWS and NMFS personnel should assist local governments in seeking out HCP funding assistance. However, the demand for such funds is likely to grow and the availability of funds to be limited; consequently, guarantees cannot be provided to any particular HCP applicant that funding would be available. Consistent with the requirements of the Anti-Deficiency Act, any commitment of Federal funding is always subject to the availability of appropriated funds. When perpetual funding is needed,the HCP must establish programs or mechanisms to generate such funds. One way of achieving this is through payment of development fees by the applicant or other affected parties into an interest-bearing bank account, from which the interest, not the principal, is used to fund the program. The HCP should detail fund collection and management mechanisms for this purpose, as well as remedies for failure to meet funding obligations by signatory members. The IA must always contain a provision stating that any Federal funding is subject to the requirements of the Anti-Deficiency Act and the availability of appropriated funds. 3-34 Whatever the proposed funding mechanism is, failure to demonstrate the requisite level of funding prior to permit approval or to meet funding obligations after the permit is issued are grounds for denying a permit application or revoking or suspending an existing permit, respectively. In some cases, conservation funds may be transferred to a government agency to be utilized in furthering the purposes of the HCP. FWS or NMFS can accept contributed funds for mitigation purposes, monitoring, research, permit administration, and other activities. However, because of Federal procedural requirements in administering such funds and the potential for an appearance of a conflict of interests, the FWS Administrative Services Division and Department of the Interior Solicitor's Office (or equivalent office for NMFS) should be consulted before agreeing to any such mechanism. 7. Alternatives Analyzed. Some applicants find this a difficult element of the HCP because they are uncertain about which or how many alternatives to consider. In some cases, the HCP process may not be initiated until the applicant has planned the project, only to discover that endangered species are present on the project site and an incidental take permit is needed. The Act requires a description of"alternative actions to such taking." Thus two alternatives commonly included in the "Alternatives Analyzed" section of the HCP are: (1) any specific alternative, whether considered before or after the HCP process was begun, that would reduce such take below levels anticipated for the project proposal; and (2) a "no action" alternative, which means that no permit would be issued and take would be avoided or that the project would not be constructed or implemented. For low-effect HCPs in which the project or impact on endangered or threatened species is minor or negligible, a "no action" alternative alone may suffice. For some HCPs, several alternatives may have been considered during project development. Each should be discussed in the "Alternatives Analyzed" section; or,where they are too numerous, the principal ones should be discussed. The applicant also must explain in this section why these alternatives were not adopted. If the applicant ultimately selects an alternative that the FWS or NMFS agrees will not result in take, no section 10 permit or NEPA compliance is needed. Chapter 3, Section B.7 explains how the alternatives analysis requirements under section 10 and NEPA compare. Permit applicants commonly ask whether economic considerations can be cited as a reason for rejecting project alternatives. Such considerations are permissible, especially when the effects on the applicant would be significantly adverse or economically infeasible. However, if economic considerations are the basis for rejecting alternatives, data supporting this decision must be provided to the extent that it is reasonably available and non-proprietary. While applicants may be hesitant to provide such information, it can be important in making 3-35 the required finding that the HCP represent minimization and mitigation to the maximum extent practicable. Neither the FWS nor NMFS have the authority to impose a choice among the alternatives analyzed in the HCP. The Services' role during the HCP development phase is to advise the applicant in developing an acceptable HCP, and, when necessary to try to dissuade the applicant from selecting alternatives not consistent with permit issuance criteria. Nevertheless, if the applicant proceeds with such an alternative, recognizing the increased chance of denial of the permit,the Services must process the application and provide an opportunity for Federal Register notice and public comment(see Chapter 6, Section D). 8. Additional Measures - Implementing Agreements. Whether or not an Implementing Agreement should be prepared for a given HCP will depend on the size and scope of the HCP and the wishes of either the Services or the applicant. Implementing agreements are not required for low-effect HCPs, and should be done only when one is requested by the permit applicant. In other HCPs,the development of the IA is left to the discretion of the Regional Director. Implementing Agreements are recommended for regional or other large-scale HCPs that address significant portions of a species range or involve numerous activities or landowners, for HCPs with long-term mitigation and monitoring programs, or where habitat protection programs are complicated or have other special features. n Section 10(a)(2)(B) of the ESA--which describes issuance criteria for incidental take permits--authorizes the Services to obtain "such other assurances as [they] may require that the plan will be implemented." This provision allows the Services broad latitude to require measures as necessary to accommodate the wide variety of circumstances often encountered in HCPs. Implementing Agreements can help assure the government that the applicant will implement the mitigation program and other conditions of the HCP, while assuring the applicant that agreed upon procedures will be followed for any changes in the conditions of the permit or the conservation measures for species addressed in the HCP. Although the Services and permit applicant possess these rights and responsibilities under the permit, both sides may prefer the additional specificity of an Implementing Agreement because the Agreement is tailored for the HCP in question, can be more detailed than the permit conditions, and is signed by all parties, thus providing the explicit consent of each party to abide by the terms of the HCP. Implementing Agreements can also strengthen a Finding of No Significant Impact under NEPA by ensuring implementation of the mitigation program. This can be especially important for "mitigated EAs" [see Chapter 5, Section A.3(a)]. They can also extend responsibilities under an HCP beyond the life of the permit itself(e.g., by requiring perpetual 3-36 protection of mitigation lands)and can set out a process for implementing the assurances under the "No Surprises" policy [see above, Section B.5(a)]. Typically, an Implementing Agreement includes one or more of the following elements: (1) defines the obligations, benefits, rights, authorities, liabilities, and privileges of all signatories and other parties to the HCP; (2)assigns responsibility for planning, approving, and implementing specific HCP measures; (3) specifies the responsibilities of the FWS,NMFS, or other state and Federal agencies in implementing or monitoring the HCP's conservation program; (4)provides for specific measures when habitat acquisition,transfer, or other protections are part of the HCP's mitigation program; (5) establishes a process for amendment of the HCP,where necessary; and (6)provides for enforcement of HCP measures and for remedies should any party fail to perform on its obligations under the HCP. The handbook delegates to the Regional Directors (or,where appropriate,the NMFS Director, Office of Protected Resources in Washington, D.C.)the discretion to decide if HCP Implementing Agreements are beneficial on a case-by-case basis. IAs are not done for low-effect HCPs unless requested by the applicant. Each Regional Director or the NMFS Office of Protected Resources Director shall determine the circumstances under which Implementing Agreements may be required for HCPs under his or her respective jurisdiction. Chapter 6, Section B.2(g)provides further information about developing and processing Implementing Agreements. Appendix 4 contains a "template" Implementing Agreement that can be used to develop Agreements for individual projects. The template is intended to expedite development of Implementing Agreements for HCPs, because it identifies the basics needed for developing Agreements. The template has all necessary legal elements for Agreements for HCPs except project-specific information, which can be filled in as indicated. C. Alternative HCPs 1. Addressing Species Through Habitat-Based HCPs. Most of the HCPs that are being developed address the requirements of section 10(a)(2) on a species-by-species basis. A smaller number of HCPs, however, have focused on specific types of habitat rather than on a particular listed species. The rationale for a habitat-based approach is that if certain habitat-types are scientifically selected and assessed, and adequately protected under the terms of the HCP, the HCP could protect a broader range of species than the few "target" species that might otherwise be addressed by a conventional HCP. This approach may address all species within habitat-types within the plan area, or habitat-types in conjunction with a specific list of species that will be covered by the permit. HCPs developed in conjunction with the Natural Communities Conservation Program in Southern California are examples of habitat-based HCPs. The State of California, under the Natural Community Conservation Planning Act of 1991 (NCCP), has initiated a program to 3-37 conserve populations of California native animal and plant species and their habitats in areas large enough to ensure their long-term viability. The initial NCCP effort is focusing on the coastal sage scrub community in southern California for the development of subregional HCPs. In the habitat-based approach, a particular habitat type within a planning area is selected and then adequately addressed in the HCP, based on criteria agreed to by the Services and the applicant. The Service and the applicant generally use indicator species to set management parameters for the covered habitat in the HCP. A further test must be completed to ensure that the needs of all endemic and sensitive species (listed,proposed,candidate, or species of concern)associated with the covered habitat types are adequately addressed in the HCPs. An entire list of known covered species (listed and unlisted) adequately addressed in the habitat-based HCP could also be included on a permit. This list may include proposed and candidate species; however, since such species are only subject to State--as opposed to Federal--jurisdiction,there should be a delayed effective date for the permit for such species. That delayed effective date should be the date the affected species is subsequently listed. Including an unlisted species on the permit in this way requires that the Services analyze the effects of the proposed HCP on that species under sections 7 and 10 of the ESA,just as if that species were listed. Under this method, the assurances of the "No Surprises" policy would apply to all covered species associated with the habitat-type as described in the list of species that are adequately covered in the HCP. If an unlisted species, which was adequately covered by the HCP and listed on the permit, is subsequently listed after permit issuance,the HCP permit would not have to be formally amended because all procedural permit requirements for these species were met when the permit was originally issued and the species was included on the permit with the delayed effective date (the subsequent date of listing). However, if an unlisted species associated with a habitat-type adequately covered in the HCP is subsequently listed, and it was not originally included on the permit,the Services would have to formally amend the permit and satisfy all procedural permit amendment requirements before it could authorize incidental take. Prior to amending the permit, the applicant would have to make sure the species was adequately addressed in the HCP, and the Services would have to conduct independent assessments of the proposed actions under section 7 of the Act, make findings under section 10 of the ESA, and also ensure that the HCP complies with NEPA. Including covered species (listed and unlisted) in the original permit will help eliminate additional work associated with amending the permit, minimize duplication of effort, and minimize the cost associated with developing an HCP. Habitat-based HCPs are new to the section 10 program and the Service is exploring this approach carefully. Adaptive management clauses (see Chapter 3, Section B.3(g))may be helpful in defining where data gaps or uncertainty exists and,thus, areas where the Service and the applicant agree future modifications to the HCP may be needed. For further 3-38 �`` information about habitat-based HCPs, contact the Washington, D.C. Division of Endangered Species Section 10 Coordinator(FWS) or the Washington, D.C. Office of Protected Resources (NMFS). 2. Programmatic HCPs. The programmatic HCP is a relatively new concept that has begun to emerge recently in HCPs developed with the FWS. The FWS has begun to develop programmatic HCPs for County and State governments, such as the "state-wide"HCP being developed with the State of Georgia for the red-cockaded woodpecker. The programmatic HCP allows numerous entities to be involved in the HCP through "Certificates of Inclusion" or "Participation Certificates," which convey the take authorization of the official section 10(a)(1)(B)permit to the certificate recipient. A programmatic HCP can be used to address a group of actions as a whole, rather than one at a time in separate HCPs. For example, a programmatic HCP might address a single related action occurring in many different places (e.g.,the development of single family houses in the same vicinity or the harvesting of trees in the presence of red-cockaded woodpeckers), or address a group of different actions occurring in the same place. Programmatic HCPs can reduce staff and preparation time, but are appropriate only in certain types of situations. The central problem in preparing a programmatic HCP is having sufficient information to determine and evaluate effects when the exact number and scope of actions taking place may be uncertain. As a result,programmatic HCPs will be successful only when the activities being addressed are well-defined, similar in nature, and occur within a described geographical area or at similar points in time. Because this is a relatively new concept,the Service strongly encourages that programmatic HCPs be developed in conjunction with the Regional and Washington Office. In addition, this type of a section 10(a)(1)(B)permit should not be issued to representatives of Federal agencies since section 7 is the correct avenue for dealing with "may effect" situations and possible incidental take by Federal agencies. NMFS provides for "Certificates of Inclusion" in its regulations (50 CFR 222.22(f)). Certificates are issued by NMFS to any individual who wishes to conduct an activity covered by a general incidental take permit. The general permit can be applied for by any group or organization whose members conduct the same or similar activity and have the same or similar impacts on endangered marine species. For example, a fisheries organization or a state regulatory agency may apply for a general incidental take permit so that "Certificates of Inclusion" would then be required by its members or regulated entities. These groups also may apply for a standard permit. Applicants should discuss the alternatives with NMFS to determine which is the most appropriate. D. Addressing Migratory Birds and Eagles (FWS Only) - '"� 3-39 In the past, section 10 applicants faced an additional issue when listed migratory birds or bald eagles occurred in an HCP planning area. The Migratory Bird Treaty Act(MBTA) and Bald and Golden Eagle Protection Act(BGEPA)prohibit the take of migratory birds and bald eagles, respectively. Consequently, questions have arisen as to whether a section 10 permittee remained legally liable for the incidental take of listed species protected by the MBTA and BGEPA, if take of the same species was authorized by an ESA section 10 permit. This situation has now been clarified. The FWS has concluded that under certain conditions, a section 10 permit for listed migratory birds is sufficient to relieve an HCP permittee from liability under the MBTA and BGEPA for those species covered by the HCP permit. For the MBTA,this is accomplished by having the HCP permit double as a Special Purpose Permit authorized under 50 CFR § 21.27. For BGEPA, it is accomplished by utilizing the FWS's prosecutorial discretion to state that FWS would not prosecute an incidental take under the BGEPA if such take is in compliance with an ESA section 10 permit. However,the following conditions must be satisfied before either of these protections apply: (1) any species to be so treated with respect to the MBTA and BGEPA must also be listed under the ESA; and (2) the incidental take of any such species must be authorized, subject to applicable terms and conditions, under section 10(a)(1)(B) of the ESA (see Appendix 5). The Service believes that this approach is warranted because the permittee already would have agreed to a package of mitigation measures designed to minimize and mitigate the take of the listed species of migratory birds to the maximum extent practicable. n In qualifying cases,the following language concerning MBTA- and BGEPA-protected species shall be included in the terms and conditions of a section 10 permit when the above conditions have been satisfied: [For listed species other than the bald eagle] This permit also constitutes a Special Purpose Permit under 50 CFR § 21.27 for the take of[provide species'common and scientific names; species must be ESA-listed and may not include the bald eagle]in the amount and/or number and subject to the terms and conditions specified herein. Any such take will not be in violation of the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. §§ 703-712). [For the bald eagle] The Service will not refer the incidental take of any bald eagle, Haliaeetus leucocephalus, for prosecution under the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. §§ 703-712), or the Bald and Golden Eagle Protection Act of 1940, as amended(16 U.S.C. §§ 668-668d), if such take is in compliance with the terms and conditions (including amount and/or number) specified herein. E. Coordinating HCPs With National Wildlife Refuges (FWS Only) 3-40 National Wildlife Refuges (NWRs)occur nationwide, and HCPs are now being developed in most areas of the country. When planning efforts under these two programs occur in the same geographic vicinity, it creates significant opportunities for joint NWR/HCP habitat protection programs in which the two programs can support and complement each other. However, it also raises important questions regarding the relationship between the two programs--e.g., what are the government's and permittee's respective roles and responsibilities in such joint NWR/HCP efforts, and how should such programs be jointly managed? The FWS has developed a policy to assist its offices and staff in integrating the NWR and HCP programs. In brief,the policy states that the primary objective of integrating any NWR with an HCP is to increase benefits to the species involved, and that a NWR is not to be established or integrated with an HCP merely to substitute for the mitigation responsibilities of the section 10 permittee. This policy and additional guidance about integrating HCPs with National Wildlife Refuges is provided in Appendix 6. F. "Safe Harbor" Policy: Linking Safe Harbor Assurances to Habitat Conservation Plans The "Safe Harbor" approach is a strategy that provides private landowners, who undertake voluntary conservation actions on their lands, assurances that their future land-use activities will not be restricted further as a result of these proactive conservation efforts. If a rte. landowner voluntarily enters into an agreement to manage his or her lands in a manner that attracts endangered or threatened species or otherwise increases their presence,the "Safe Harbor assurances" guarantee no additional regulatory requirements for those lands will be imposed on the landowners as a result of the proactive conservation measures. The purpose of the "Safe Harbor" approach is to reduce the disincentives (e.g., fear of regulatory restrictions)that often cause landowners to avoid or prevent land use practices that would otherwise benefit endangered species. If it is determined that it is appropriate to link Safe Harbor assurances with HCPs, specific directions for incorporating will be described in a forthcoming final Safe Harbor policy(see Appendix 7). [Note: If the draft Safe Harbor policy has not been published in the Federal Register by the time this guidance is published,Appendix 7 will be reserved for this policy.] The Services are currently considering whether, and if so, under what circumstances, it may be appropriate to allow a landowner to link a Safe Harbor Agreement to an HCP. The Services intend to submit this issue for further public analysis and comment. �"� 3-41 CHAPTER 4 TREATMENT OF UNLISTED SPECIES Treatment of unlisted species is a crucial issue for HCPs and the section 10 process. One of the most common questions asked by permit applicants is, "What happens if a new species is listed after my section 10 permit has been issued?" Congress considered this issue during the 1982 ESA amendments and clearly intended that the section 10 process would provide for conservation of unlisted and listed species, and protect section 10 permittees from the uncertainties of future species listings: "Although the conservation plan is keyed to the permit provisions of the Act, which only apply to listed species, the Committee intends that conservation plans may address both listed and unlisted species...In the event that an unlisted species addressed in the approved conservation plan subsequently is listed pursuant to the Act, no further mitigation requirements should be imposed if the conservation plan addressed the conservation of the species and its habitat as if the species were listed pursuant to the Act." (H.R. Report No. 97-835, 97th Congress, Second Session, and 50 FR 39681-39691.) A. Addressing Unlisted Species in the HCP While HCPs are developed for listed species,they can also cover proposed, candidate or other rare or declining unlisted species. The inclusion of proposed, candidate, or unlisted species in an HCP is voluntary and is the decision of the applicant. The Services should explain to any HCP applicant the benefits of addressing unlisted species in the HCP and the risks of not doing so, and should strongly encourage the applicant to include as many proposed and candidate species as can be adequately addressed and covered by the permit. The primary reasons for addressing unlisted species with the listed species are: (1)to provide more planning certainty to the permittee in the face of future species listings; and(2)to increase the biological value of HCPs through comprehensive multi-species or ecosystem planning that provides early, proactive consideration of the needs of unlisted species. When including species other than listed species the applicant must ensure that these species are adequately covered in the HCP. (See the discussion of what it means for a species to be "adequately covered" under an HCP in the "No Surprises" policy section of this handbook and section A.3 of this Chapter). If an unlisted species that was not addressed in an HCP becomes listed after the permit for that HCP has been issued, and if project activities are likely to result in take of the species, the permittee remains subject to the take prohibitions under section 9 or 4(d) of the ESA for the new species regardless of the fact that a permit is held for other listed species. In such a case, the permittee must either avoid take of the species or revise the existing HCP and �`` 4-1 associated documents and obtain a permit amendment to take the newly listed species. This /0"-• can result in unwanted complications and delays. However, if the newly-listed species had been adequately addressed in the original HCP-- even though it was unlisted--the permittee's situation would be different. Depending on how the unlisted species was treated in the HCP and the permit,the permittee may need to amend the permit only (not the HCP),or may need to take no additional action whatever to be in compliance with the ESA for the new species. Addressing unlisted species in an HCP provides the permittee with regulatory certainty in the event of future species listings, simplifies(or eliminates the need for)the permit amendment process, and provides the unlisted species with conservation benefits before they could be legally required under the ESA. There are also significant biological advantages. At their best, HCPs can be comprehensive planning documents that address species conservation needs collectively on a community, habitat-type, or even ecosystem level. Increasingly, HCP applicants are turning to these types of planning efforts as an alternative to inefficient,piecemeal approaches to land-use planning, because they believe that in the long run addressing the interests of wildlife serves their interests as well (e.g., by protecting ecosystem health,protecting the natural qualities of their communities,or preventing species declines in the first place), and to increase regulatory certainty and minimize future Federal requirements. The Services must also explain to the applicant that the primary jurisdiction over unlisted .� species usually rests with the affected state fish and wildlife agency, and that it is advisable to have the appropriate state agency's participation in the HCP process. This increases the likelihood that the HCP will adequately address both State and Federal mitigation requirements for the affected species in one unified set of mitigation measures,thus providing further regulatory certainty to the applicant. 1. Deciding How to Address Unlisted Species. Procedurally,there are two possible ways to handle unlisted species: (1) do not address them at all in the HCP; and(2) address them in the HCP and name them on the permit. With respect to unlisted species that are adequately addressed in the HCP, most applicants prefer to have such species named on the original permit albeit with a delayed effective date tied to the date of any future listing. Others prefer to leave such species off the permit and to amend the permit later if necessary. Either way is acceptable, although, an applicant is well advised to include on the permit unlisted species that are proposed or likely to be listed within the foreseeable future. If the applicant strongly opposes the inclusion of unlisted species covered under the HCP on the permit,then exceptions can be made, but are not recommended. Most applicants would be expected to prefer that all covered unlisted species be included on the permit. 4-2 To some extent,the decision whether or not to address unlisted species will be influenced by the likelihood of whether a particular species will be listed in the foreseeable future or otherwise within the life of the permit. Generally,the permit applicant is well advised to address those species most likely to be listed--e.g., species that are proposed for listing, candidate species, and other species for which conservation concerns exist. The decision may also depend on the applicant's objectives in the HCP. If the object is a comprehensive ecosystem-based HCP,the applicant may elect to address unlisted species even if they are not likely candidates for listing. In any case, if the applicant elects not to address unlisted species in the HCP and such species are subsequently listed and could be incidentally taken within the planning area,the permittee may have to substantially amend and supplement the HCP to cover that species to remain in compliance with the requirements of the ESA. 2. Addressing Unlisted Species in the HCP and Permit. If the permittee has elected to address unlisted species in the HCP and to have them included on the permit with a delayed effective date (the date of future listing),y and such species are subsequently listed,the permittee will be in full ESA compliance for those species and no further action by the permittee is required. In such cases,the name of the unlisted species should appear directly on the permit, even though,technically,they are not protected against take and no Federal permit is needed to incidentally take them at that time. The permit terms and conditions must make clear that the permit does not become effective with respect to unlisted species named on it until they are listed. The following language is suggested: The permittees, and their designated agents, are authorized to incidentally take (kill, injure, harm, harass)the[provide species common and scientific names], which are listed or may be listed in the future under the Federal Endangered Species Act of 1973, as amended (Act), to the extent that take of these species would otherwise be prohibited under section 9 of the Act, and its implementing regulations, or pursuant to a rule promulgated under section 4(d) of the Act. Such take must be incidental to [name the type of activity]as described in the permit application and associated documents and as conditioned herein. This permit is immediately effective for species currently listed under the Act. This permit shall become effective for currently unlisted species named above upon any future listing of these species under the Act. Compliance with the entire HCP and associated documents is a condition of the permit. Furthermore, if measures described in an HCP for the conservation of unlisted species are not implemented, and the species is subsequently listed, the permittee would be found to be out of compliance with the permit with respect to that species and the incidental take of the species would therefore not be authorized. Consequently, it is in the permittee's best interests to implement conservation measures described in an HCP for unlisted species. �"1 4-3 3. Standards for "Covering" Species Under a Permit. Under the "No Surprises" policy (see Chapter 3, Section B.5(a)) an unlisted species is said to be "adequately covered" by an HCP and subject to the assurances of"No Surprises" when the species is addressed in the HCP "as if it was listed pursuant to section 4 of the ESA, and in which HCP measures for that species would satisfy permit issuance criteria under section 10(a)(1)(B)of the ESA if the species was listed." For purposes of this chapter the term "adequately covered" shall have the same meaning as it does under the "No Surprises" policy. Unlisted species must be "adequately covered" under the original HCP before FWS or NMFS will name (i.e., "cover") such species on a permit or provide assurances that, upon the request of the permittee, a permit will be amended to include such a species upon the listing of such species and compliance with section 7. B. Challenges in Treating Unlisted Species Development of HCPs that treat unlisted species as though they were listed constitutes good conservation planning, but it is not without its challenges. One problem in treating unlisted species is similar to the problem of determining the HCP plan area as discussed in Chapter 3, Section B.2(a)--i.e., balancing the need for a comprehensive plan with one that is manageable in size and scope. Here too there are no simple formulae and inclusion of candidate species may be a compromise between these two goals. Another problem is that biological information on candidate and other unlisted species can be — more limited, making it more difficult to determine project impacts, develop suitable mitigation programs, and meet the section 10 issuance criteria. There are several ways this situation can be addressed. The applicant may elect to acquire additional biological information prior to the issuance of the permit. The permittee could also agree to adaptive management provisions designed to adjust management prescriptions or land use practices to reflect enhanced information on an unlisted species. Or, HCP planners can elect to address the species to the extent that information is available, but agree to reduced coverage for that species under the permit in the absence of further study data. Remember that for legal coverage under the permit to apply for unlisted species,the species must be "adequately addressed" in the HCP--i.e.,treated as if it was listed and was otherwise able to satisfy the section 10 criteria. 4-4 CHAPTER 5 ENVIRONMENTAL ANALYSIS AND DOCUMENTATION The National Policy Act of 1969 as amended (NEPA), is this country's basic charter for the protection of the environment. It established policies, goals, and a mechanism for reaching these goals. The Council on Environmental Quality (CEQ) regulations implementing the procedural provisions of NEPA (at 40 CFR §§ 1500-1508)require all agencies to analyze the impacts of their proposed actions and to include other agencies and the public in the process. A. General Information The goals and mechanisms of NEPA and the ESA, as they relate to incidental take permits and HCPs are similar and functionally compatible in many respects. It is important to recognize the similarities and differences in the requirements and to integrate those requirements in a manner that provides useful information to the decisionmaker and to the public. While some NEPA compliance for proposed HCPs has been well integrated with the HCP process and the HCP documentation, in other cases,NEPA compliance has been treated as a process requiring separate public meetings and separate documentation that in large part is duplicative of work already done. Such practices are neither useful or efficient. The FWS's amended procedures implementing NEPA and this handbook provide important new direction on implementing the requirements of these two environmental statutes. 1. Scope of the NEPA Analysis. When thinking about the NEPA analysis as it relates to an incidental take permit and an HCP, it is important to be precise about the nature of the underlying action. The purpose of an HCP process is to provide an incidental take permit to the applicant that authorizes the take of federally listed species in the context of a conservation plan. The HCP will specify the impacts that will likely result from the taking, what steps the applicant will take to minimize and mitigate such impacts, what alternative actions are not being utilized and such other measures as may be required by the Services. The scope of the NEPA analysis therefore covers the direct, indirect, and cumulative effects of the proposed incidental take and the mitigation and minimization measures proposed from implementation of the HCP. The specific scope of the NEPA analysis will vary depending on the nature of the scope of activities described in the HCP. In some cases,the anticipated environmental effects in the NEPA analysis that address the HCP may be confined to effects on endangered species and other wildlife and plants, simply because there are no other important effects. In other cases,the NEPA analysis will focus on the effects of the minimization and mitigation actions on other wildlife and plants and will examine any alternatives or conservation strategies that might not otherwise have been considered. In �`' 5-1 other cases,the minimization and mitigation activities proposed in the HCP may affect a wider range of impacts analyzed under NEPA, such as cultural resources or water use. It is important to keep in mind, however, that the NEPA analysis for an HCP should be directed towards analyzing direct, indirect, and cumulative impacts that would be caused by the approval of the HCP,that are reasonably foreseeable, and that are potentially significant. 2. Categorical Exclusions. CEQ regulations (40 CFR 1508.4) define categorical exclusions as "...a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which,therefore, neither an environmental assessment nor an environmental impact statement is required." U.S. Fish and Wildlife Service procedures for implementing categorical exclusions are found in the Department of Interior Manual (516 DM 6,Appendix 1; and 516 DM 2, Appendix 1 & 2). The Departmental manual categorically excludes the issuance of permits involving fish,wildlife, or plants, when such permits cause no or negligible environmental disturbance. National Marine Fisheries Service procedures for implementing categorical exclusions are found in the NOAA Administrative Order Series 216-6, Sections 602b.3 and 602c.3. That order categorically excludes permits for scientific research and public display under the ESA and Marine Mammal Protection Act, and other categories of actions which would not have significant environmental impacts including routine operations, routine maintenance, actions i with short-term effects, or actions of limited size or magnitude. However, a memo for the record should be made listing the categorical exclusion. Low-effect HCPs are defined as those involving: (1) minor or negligible effects on federally listed and candidate species and their habitats; and(2)minor or negligible effects on other environmental values or resources. "Low-effect" incidental take permits are those permits that, individually or cumulatively, have a minor or negligible effect on the species covered in the HCP. Low-effect HCPs may also apply to habitat-based HCPs if the permitted activities have minor or negligible effects to the species associated with the habitat-types covered in the HCP. Another consideration in meeting the requirements of this categorical exclusion is cumulative impacts. CEQ regulations define a cumulative impact as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions" (50 CFR 1508.7). Once the draft NEPA procedures (516 DM 6, Appendix 1) are revised, section 10 permits developed with technical assistance from the FWS may be categorically excluded from NEPA, subject to meeting specific criteria. The current NEPA procedures in 516 DM 6, Appendix 1 shall remain in effect,until the final revised procedures are published in the Federal Register. When 5-2 categorically excluding a section 10 permit application,the Services must ensure that the impacts of the project, considered together with the impacts of other permitted projects,will not be "significant." For example, if numerous low-effect projects in a given species'habitat are categorically excluded, the Services must ensure that issuance of section 10 permits for these projects does not result, over time, in cumulative habitat losses to the extent that such losses become significant. 3. Environmental Assessments. The FWS has also determined in the proposed revised NEPA procedures that most HCPs, other than those that are low-effect, will normally require preparation of analysis that meets the requirements for an EA [516 DM 6, Appendix 1]. The purpose of an EA is to briefly analyze the impacts of a proposed action to determine the significance of the impacts and to determine whether an EIS is needed,to analyze alternatives for proposals which involve unresolved conflicts concerning uses of available resources, and to aid an agency's compliance with achieving NEPA's purposes when preparation of an EIS is not necessary. An EA consists of a brief discussion or description of: (1)the purpose and need for the proposed action; (2)the nature of the proposed action; (3) alternatives to the proposed action that were considered; (4)the environmental impacts of the proposed action and its alternatives; and(5)a list of agencies and persons consulted in the NEPA review process. Public review procedures for EAs vary depending on the scope of the proposed action [see this chapter, Section A.3 and A.5]. The culmination of the EA process is a Finding of No Significant Impact(FONSI) or a decision to prepare an EIS. a. Use of EAs When Mitigation Reduces Significant Impacts. Normally,the Service believes that analysis at the level of an EA will be sufficient for HCPs. At times, an HCP that might otherwise require an EIS can be analyzed with an EA, if mitigation measures that would ensure that environmental impacts do not reach the significant level are part of the original project proposal (in this case,part of the HCP) and are enforceable. This type of EA can be used when an HCP would otherwise be expected to have significant environmental impacts but,with mitigation,those impacts can be reduced to less than significant levels. The basis for this type of EA is found at 40 CFR 1501.3(b), 1501.4(e)(2), and 1508.9(a)(2). A brief discussion of the subject also occurs in the CEQ publication, "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations" (46 FR 18026-18038,Nos. 39 and 40). Under the right conditions, EAs of this type are a useful tool for complying with NEPA and saving paperwork and time. In fact, HCPs are excellent candidates for this type of EA since most of the requirements ("up front" mitigation and enforceability) are already standard HCP components. The main differences between this type of EA and other EAs prepared for HCPs are that: (1)the impact of the project would result in significant environmental impacts 5-3 but for the mitigation program(in many EAs,the environmental effects would be less than significant even without the mitigation program); and(2) a 30-day public comment period must be observed before the decision is made not to prepare an EIS (CEQ regulations otherwise require no delay in deciding not to prepare an EIS). This 30 day period should be combined with the 30 day public notice of the proposed section 10 permit. If the Services decide to use this provision to issue an EA and a FONSI for a particular proposed HCP, they should be able to make a clear finding that the HCP, considered together with mitigation measures that are part of the HCP submitted with the permit application and would be enforceable,will not result in significant environmental effects. FWS and NMFS encourage preparation of this type of EA as a way of streamlining the section 10 and NEPA processes. However, FWS and NMFS staff should consult the Regional Director's Office, Environmental Coordinators in the Regional Office, or the Washington, D.C. Office before initiating this type of EA for the first time. b. Programmatic EAs. A programmatic EA is an EA that addresses a group of actions by different applicants as a whole, rather than one at a time in separate EAs. For example, a programmatic EA might address a group of different actions occurring in the same place, or a single action occurring in many different places. Programmatic EAs can save great amounts of staff and preparation time,but are appropriate only in certain types of situations. The central problem in preparing a programmatic EA is having sufficient information to determine and evaluate effects when the exact number and scope of actions taking place may be uncertain. As a result, programmatic EAs typically will be successful only when the activities being addressed in proposed HCPs are relatively well-defined and not overly conjectural, are similar in nature or geography, and occur at similar points in time or within a predictable time line. Programmatic EAs can be prepared at the time a group of actions is proposed. To expedite small-scale actions,they can also be prepared prior to specific project proposals if the proposals can be defined in advance and are reasonably foreseeable. Because of the problem of analyzing effects, FWS and NMFS staffs should consult their Regional Office Environmental Coordinator or other NEPA experts when preparing a programmatic EA. 4. Environmental Impact Statements. If the conclusion is reached that a particular HCP will have a significant environmental impact and thus requires preparation of an EIS, refer to the procedures outlined in the FWS's NEPA guidance (30 AM 2-3 and 550 FW 3), and Director's Order No. 11, dated April 18, 1985 or for NMFS the NEPA procedures are found in the NOAA Administrative 5-4 Order Series 216-6, dated June 21, 1991. For further assistance, consult the appropriate Regional Office or NMFS, Washington Office D.C. Environmental Coordinator. B. Techniques for Streamlining Section 10 and NEPA Planning CEQ regulations encourage agencies to focus on the purpose of the NEPA process; making better decisions. Amassing needless detail is discouraged; integration of the analysis with the other planning and environmental review requirements so that all procedures run concurrently rather than consecutively is explicitly encouraged. The Services fully endorse these goals. All FWS and NMFS offices are expected to streamline their section 10 permit and NEPA analyses to the maximum extent practicable,while ensuring compliance with both ESA and NEPA. The process should be streamlined by integrating the analyses in the same document,to the extent possible, by running the processes concurrently, not consecutively, and by conducting joint processes with state and local agencies as applicable. 1. Combining HCP/NEPA Analysis. The CEQ regulations specifically permit NEPA documents to be combined with other agency documents to reduce duplication and paperwork(40 CFR§§1506.4). The Services policy is to combine the HCP and NEPA analysis into a single document titled, "Proposed HCP and Environmental Assessment for the [insert name of the HCP document]." This technique should not be viewed as preparation of two separate documents that are then published under the same cover, but rather one integrated analysis that meets the requirements of both NEPA and ESA. For example, the alternatives section of the combined document should include alternatives that satisfy both the requirements of section 10 and NEPA. Similarly,the discussion of effects should include analysis of both the impacts of the proposed HCP as well as other environmental effects that should be analyzed under NEPA. FWS and NMFS should work closely with the applicant(s) so that any environmental documents they draft meet NEPA and section 10 permit application requirements. Appendix 8 contains a example of an integrated HCP/EA. This is one way of integrating the two documents. Another way of integrating the analysis even more would be to include the full text of the proposed HCP in the alternative section as the preferred alternative. 2. Joint Federal-State Processes. Some states have enacted laws that parallel or expand NEPA requirements at the state or local level (e.g., the California Environmental Quality Act). CEQ regulations (40 CFR 1506.2) and Department of Interior procedures (516 DM 4.18) and NOAA require its 5-5 r agencies to cooperate, to the fullest extent possible,with the applicant and state and local officials to reduce duplication between NEPA, state and local environmental requirements, and ESA requirements. FWS and NMFS should cooperate with state and local agencies to avoid duplication and reduce the time and costs of planning by: o Conducting joint planning; o Conducting joint environmental research and studies; o Conducting joint public hearings; and o Producing joint environmental documents (however, FWS or NMFS is responsible for submitting Federal Register notices). 3. Incorporation By Reference. Incorporation by reference can be used in an EA or EIS to avoid including bulky documents or written material in support of conclusions. Material incorporated by reference from another source into the NEPA analysis must be cited and its contents briefly described. It should not be incorporated by reference unless it is reasonably available for inspection by interested parties within the time allowed for public comment. C. Internal Service Guidance and Assistance FWS procedures for complying with NEPA are found in 30 AM 2-3, and 550 FW3. The Regional Environmental Coordinator should be familiar with these techniques and be able to assist Regional and Field Office personnel on NEPA matters. NMFS procedures are found in the NOAA Administrative Order Series 216-6, dated June 21, 1991. 5-6 ,---` CHAPTER 6 APPLICATION REQUIREMENTS AND PROCESSING PROCEDURES Important Notice: On September 5, 1995,the Fish and Wildlife Service published a proposed rule in the Federal Register amending the general regulations for its permit program(50 CFR Part 13 and Part 17). The Service is currently drafting additional language to clarify the relationship between the Part 13 and Part 17 procedures and a proposed rule will be published in the near future. Consequently, some information contained in this chapter--particularly with respect to permit denial, suspension, and revocation procedures-- may be outdated upon publication of a final rule. Users of this handbook should check the revised permit procedures when available or contact the Service's Division of Law Enforcement to ensure that the handbook's description of permit administration is consistent with the new regulations. Except where noted,the procedures described in this chapter apply to both FWS and NMFS. For NMFS, 50 CFR 222.22 contains regulations specific to incidental take permits. General permit procedures are found in 50 CFR 217, 220, as well as 222. NMFS is also in the process of revising its ESA regulations at 50 CFR parts 217-227. Therefore, citations to NMFS regulations may change from those provided in this handbook. A. Guidance to the Applicant 1. What to Provide the Applicant. The following documents should be provided to any prospective permit applicant or applicant's consultant. o For FWS,Federal Fish and Wildlife License/Permit Application(Form 3-200) with "Incidental Take Permit Application" supplement, instructions, and Notice of Permit Application Fee/Privacy Act Notice (Appendix 9). o For NMFS, incidental take application instructions (Appendix 9). o This handbook, if appropriate (some applicants may find it too technical; although it may be useful to experienced consultants). o List of candidate,proposed, endangered, and threatened species of wildlife and plants for the prospective planning area. o List of appropriate local, state, and federal contacts, such as state conservation agencies. .00"'1 6-1 o General Permit Procedures - for FWS, 50 CFR Part 13; for NMFS, 50 CFR 217, 220, and 222 (Appendix 11). o Endangered and Threatened Wildlife and Plant Permit procedures - for FWS, excerpts from 50 CFR Part 17; for NMFS, 50 CFR 222.22 (Appendix 11). 2. Application Form and Instructions. For FWS, an applicant must complete and submit an official Form 3-200 [50 CFR 17.22(a)(1)]. Instructions for this form are provided below and in Appendix 9. The appropriate Regional Office address and phone number should be typed on the top of the form where it reads "Send Application To." NMFS does not have an official permit application form but provides instructions for what information the applicant needs to submit and where (see Appendix 9). A list of FWS and NMFS Regional Offices is provided in Appendix 12. 3. Name of the Applicant. For FWS, if the applicant is an individual,that person must sign the application and complete block 4 of Form 3-200. If the applicant is a city, county, business, or consortium,the application must be signed by the appropriate authority responsible for actions granted under the permit and block 5 must be completed. In all cases,there must be an original signature and date in the certification block. An application form may be faxed to begin the permit /'1 processing phase,but only if the original application with an original signature is submitted immediately afterward. The application will not be considered complete without the original application form. For NMFS,the applicant should follow the application instructions in Appendix 9. 4. Application Fee. The processing fee for FWS and NMFS is $25.00 for each new permit application, amendment request, or renewal, except as noted below. Money orders or checks should be made payable to the "U.S. Fish and Wildlife Service" or "National Marine Fisheries Service." The fee is for processing the application, not for the permit, and therefore is non-refundable if the application is abandoned or the permit is denied. The fee may be refunded only if the applicant withdraws the application in writing before any significant processing of the application has occurred. For FWS, if the check has been forwarded to the Denver Finance Center, request the Finance Center to send a refund to the applicant. State or local government agencies or any individual or institution under contract to such agency to conduct proposed activities are fee exempt. Checks and money orders must be safeguarded as if they are cash;they should be placed in a fire-proof safe except when being processed by employees designated as collection officers. 6-2 Application fees need to be deposited in a timely manner and each Regional Office should establish deposit procedures. For FWS, since Regional Division of Law Enforcement offices already have such procedures,the Assistant Director for Ecological Services may wish to coordinate with the Assistant Director for Law Enforcement in handling application fees. 5. Providing the General Permit Requirements. The applicant should be provided copies of the general permit procedures and pertinent excerpts from the procedures for endangered and threatened species permits. By signing Form 3-200,the applicant is certifying(1)that the applicant has read and is familiar with applicable regulations; (2)that the information submitted in the application is complete and accurate; and(3)that the applicant understands that any false statements may result in criminal penalties. 50 CFR Part 13 provides conditions for the general administration of FWS's fish, wildlife, and plant permit program. 50 CFR Part 17 provides conditions for endangered and threatened species incidental take permits specifically. It should be explained to the applicant that if any general provision of Part 13 is inconsistent with Part 17 or with provisions of section 10(a) of the ESA governing incidental take permits, it is the intention of the FWS to seek regulatory clarifications which would provide that the more specific provisions of Part 17 or the statute apply. This also applies to NMFS, except that 50 CFR Part 222 takes precedent over Parts 217 and 220. The FWS is currently drafting language to clarify and resolve the differences between the Part 13 and 17 and a proposed rule will be published in the near future. B. Processing the Application 1. Processing Time. No mandatory time frames for processing incidental take permit applications have been established under Section 10 or its implementing regulations. However,this handbook establishes the following target processing times, depending on the type of NEPA action associated with the permit application [see Chapter 1, Section F.1]. Permit processing times are defined as the period between receipt of a complete application package by the responsible Regional Office and issuance of the incidental take permit. including Federal Register public comment notifications. The targets do not include any portion of the HCP development phase. HCP With EIS less than 10 months HCP With EA 3 to 5 months Low-effect HCP (Categorically Excluded) less than 3 months 6-3 These targets will apply as the maximum processing times unless project controversy, staff or workload problems, or other legitimate reasons make delays unavoidable. All affected FWS and NMFS offices are expected to streamline their incidental take permit programs and to meet these processing targets to the maximum extent practicable. In many cases it is expected actual processing times will be less than these targets and Service offices are encouraged to improve on the targets whenever possible. 2. Timing of Document Preparation and Submission. The Section 10 permit process consists of three phases: (1)the HCP development phase; (2) the formal permit application processing phase; and (3)the post-issuance phase. The length of the HCP development phase will vary depending on the complexity and scope of the project and length of time required to prepare the HCP. It concludes when a "complete application package" with a Field Office certification that it has reviewed the HCP and found it to be statutorily complete is forwarded to the appropriate Regional Office [see below, Sections B.2(b)-(c)]. The formal permit application processing phase begins with receipt of the complete application package by the Regional Office. Permit processing requirements will also depend on the scope and complexity of the HCP. a. Description of Required HCP Documents. The following documents are needed (or are optional as indicated)to apply for and issue an /"• incidental take permit: Must be Provided Before Federal Register Notice Can Be Published o A Habitat Conservation Plan including the elements required by section 10(a)(2)(A) of the ESA. o For FWS, a permit application form (3-200) and fee (see Appendix 9). For NMFS, an application according to the instructions in Appendix 9. o A NEPA analysis (either an EA or EIS, unless the HCP is categorically excluded) pursuant to the National Environmental Policy Act. The section 7 biological opinion should be prepared in conjunction with the NEPA analysis. o Certification by the Field Office that assisted the applicant with the HCP to the issuing Regional Office that the HCP and associated documents are statutorily complete. o An Implementing Agreement, if requested by the applicant or otherwise required by Regional Director policy (see Chapter 3, Section B.8). 6-4 o Federal Register Notices; a Notice of Receipt of a Permit Application and Notices of Availability of the NEPA analysis(see Appendix 16). Can Be Prepared During or After the Public Comment Period o A biological opinion concluding formal section 7 consultation and providing the Services' findings with respect to the effects of the action on federally listed species. o If required by Regional Director policy, a Set of Findings documenting how the HCP meets statutory issuance criteria and optionally including the Field Office's recommendation about whether to issue the permit [see Section B.2(d) below and Appendix 13). o For FWS, an Environmental Action Memorandum (EAM)describing what action the FWS took with respect to NEPA and explaining the reasons why the action is considered categorically excluded. (For low-effect, categorically excluded HCPs only(see Appendix 14 and definition in Chapter 8)). Public comments will be addressed and, if applicable, will help shape the final decision. o For FWS,the draft permit(Form 3-201)with proposed terms and conditions; for NMFS,the permit is printed on agency letterhead with terms and conditions and a cover letter. The draft permit and terms and conditions must be further reviewed in light of any substantive public comments received. b. Submitting a Complete Application Package. The formal application phase begins with receipt by the appropriate Regional Office of a "complete permit application" package consisting, at a minimum, of the application form, application fee (if applicable),the proposed HCP,the Implementing Agreement(if required), draft NEPA analysis (EAM, EA, or EIS),which was submitted by the applicant, and a certification by the Field Office that it has reviewed these documents and finds them to be statutorily complete. Prompt submission of each of these documents is essential to efficient processing of the permit application because they either initiate the processing phase or are required for the Federal Register notice initiating the 30-day public comment period. The Implementing Agreement(if required) should be submitted as part of the complete application package and is usually included as an appendix to the HCP. Since the IA can help enforce the implementation of the HCP, it should be included with the complete package so the public can get a sense of how implementation of the HCP will be managed. It should also be included when the HCP is provided to persons wishing to comment on the permit application. 6-5 c. Certification of Application Documents By the Field Office. When the Field Office that assisted the applicant in developing the HCP forwards the application package to the Regional Office for processing, it should include a certification memo. The Regional Office should not initiate the formal permit processing phase without this certification. (see below, Section B.5 for a discussion of what to do when the Field Office believes the HCP to be inadequate but the applicant wishes to submit the package for formal processing against Field Office recommendation). This certification should include: (1)a statement that the Field Office has conducted a preliminary review of the application package and believes it to be complete; (2)the date of the HCP documents to which the memo refers; (3) a recommendation by the Field Office that the HCP qualifies for the "low- effect" category, if applicable [see Chapter 1, Section F.2]; (4)exceptions to standard processing procedures it recommends, if any, and the reason for those exceptions; and(5) other pertinent information as needed. The Field Office certification can be in memorandum format, a signed standardized form, or any other format mutually agreed to by the Field and Regional Offices. d. Timing of Other Application Documents. Another document needed early in the process is the Notice of Receipt of an Incidental Take Permit Application for publication in the Federal Register. Typically,this is drafted and forwarded to the Regional Office by the Field Office. The Regional Office then finalizes and signs the notice and sends it to the Federal Register(see below, Section D). The draft ,r'1 Federal Register notice is not a required part of the complete application package. It can be prepared while the HCP,NEPA analysis, and Implementing Agreement are being reviewed in the Regional office so long as it is completed when these documents are ready for transmission to the Federal Register. To expedite the public notification process,the Federal Register Notice of Availability of the NEPA analysis should be published jointly with the Notice of Receipt of the permit application(see Appendix 16). In addition to the above documents,processing the permit application will require a: biological opinion on the proposed incidental take; Set of Findings; for FWS, an Environmental Action Memorandum(EAM)for categorically excluded HCPs only; and the permit(for FWS, Form 3-201)or permit letter(for NMFS). The Set of Findings provides an administrative record of how the HCP program satisfies each of the section 10(a)(2)(B) issuance criteria, responses to public comments received, if any, and may include a recommendation from the appropriate ARD to the Regional Director's Office (for FWS) whether to issue or deny the permit. However, it is not required by regulation or Director's Order and whether to include it as a processing requirement is at the discretion of the Regional Directors (see Appendix 13 for examples of a Set of Findings). The EAM is a record of FWS's NEPA decision and is required by Director's Order No. 11, but only for HCPs that are categorically excluded (see definition, Chapter 8, and Appendix 14). 6-6 How these documents are handled may vary. Typically,the Field Office drafts the biological opinion [see below, Section C.3(b)], FONSI or ROD, and Set of Findings, and forwards the draft documents to the Regional Office to be finalized. The applicant should not draft these documents because they involve internal Service decisions. The Regional Office typically prepares the EAM and permit. The permit usually includes an attachment incorporating terms and conditions of the HCP and referencing applicable Federal regulations and other conditions, including the permitted incidental take levels and terms and conditions. In the interests of efficient processing,the Field Office should prepare a draft biological opinion and draft Set of Findings and forward them to the Regional Office as soon as possible during the permit processing phase--typically during or immediately after the close of the 30-day public comment period. The biological opinion can be finalized by the Field Office. The Regional Office should not finalize and sign the biological opinion,FONSI or ROD, or Set of Findings until after the public comment period has terminated and public comments have been addressed. To meet the target section 10 permit processing times, it is essential that formal application processing steps overlap, not run consecutively. The formal processing phase begins when the Regional Office receives the application form, fee (if applicable),HCP, IA(if required), draft NEPA analysis, and certification memo from the Field Office. Publication of a notice in the Federal Register requires the HCP, IA,NEPA analysis, and Federal Register notice. Issuing the permit requires all the above plus the biological opinion, signed FONSI or ROD, Environmental Action Memorandum (for low-effect HCPs only), Set of Findings, and the permit. Try to complete each document as early as possible in the process, but do not hold up one stage while waiting for non-essential components of the previous stage. Whenever possible, complete the components of one stage while another is underway. The Field Office can begin drafting the FR Notice while the Regional Office reviews the application package; the Field Office can draft the biological opinion and Set of Findings during the public comment period; and so on. e. Labeling the Documents as Draft/Final. The HCP and IA(if required) are subject to change during Regional Office review and the public comment period, and for this reason they need to be labeled as "drafts" and dated when submitted for processing. The EA should be labeled draft until the Regional Office Environmental Coordinator or HCP Coordinator has reviewed the document, and until the public comments, if any, are incorporated;the accompanying FONSI should be labeled as "preliminary" until public comment, if any, are incorporated into the HCP and EA. An EIS must always be announced in the Federal Register as a draft and final EIS and must be so labeled. 6-7 f. Dating Section 10 Documents. Since HCPs can go through many drafts during the HCP development phase, all HCP copies, draft and final, should bear a date on the front page or inside title page that includes the month,year, and day. This will confirm at any stage in the process what HCP draft or version is being referenced in correspondence or discussions and which is the most up-to- date. To ensure a complete administrative record,the Field Office and Regional Office should state in writing what measures and revisions they recommend to the applicant or Field Office, respectively,throughout the HCP development and formal application processing phases. Also, all Offices should reference the date of the specific HCP to which it refers in any written correspondence or other records. g. Finalizing the Implementing Agreement. The following process should be followed, if the applicant and Regional Director have decided to complete an IA; remember this document is optional, left to the discretion of the Regional Director, and not required for a low-effect HCP. The timing of finalization of the Implementing Agreement is essential, because improper handling of the Agreement can result in unnecessary delays. All signatories to the Implementing Agreement should have reviewed draft versions of the Agreement and all non-federal signatories should have agreed to its provisions before it is forwarded to the Regional Office with the complete application package. It should not be signed at that point because it must still be submitted for public comment with the HCP and may require Solicitor's Office review. If the Agreement was already signed when submitted with the application package, and subsequent changes are required, re-circulation for a second signing may be necessary. This is frustrating for permit applicants,particularly when the Agreement requires approval by local authorities (e.g., a county Board of Supervisors), which must then re-approve the Agreement. However, the Agreement must be signed prior to permit issuance. The Implementing Agreement should be circulated for signature after the public comment period has closed and changes to the HCP or IA, if any, have been incorporated. An original signature copy of the Implementing Agreement should be provided to each signatory to the Agreement. For FWS, signature authority for the Implementing Agreement lies with the Regional Director's Office. For NMFS,this authority lies with either the Regional Director or the Director of the Office of Protected Resources, Washington, D.C. 3. Who Submits the Application Package? There are several ways the complete application package can be submitted to the Regional Office. The HCP, IA, and draft NEPA analysis (if not prepared by the FWS or NMFS), can be forwarded by the applicant to the Field Office, and the Field Office then forwards these materials,together with its certification memo,to the Regional Office. Or,the Field Office 6-8 and applicant can forward to the Regional Office, respectively,the documents for which they are responsible; in this case the Regional Office would compile the complete application package and supply the Field Office with the final versions of the HCP and IA. There are other possible variations; however, most FWS Offices prefer that the Field Office submit the entire application package to the Regional Office. This handbook delegates to the Regional Offices the task of establishing specific methods by which permit application packages will be submitted. Each Regional Office must develop clear protocols for this procedure, and notify all affected Field Offices. 4. Judging the Application for Completeness. The applicant must provide all information requested on the application form or in the application instructions for NMFS (Appendix 9). If the form has not been completed correctly,the applicant should be notified, in writing or by phone with an accompanying memo that should be filed in the administrative record, and asked to correct the deficiency or submit additional information. Requests for information should include notification that if the information is not received within the allotted time, the application will be deemed inactive [50 CFR 13.11(e) or 50 CFR 220.13]. The applicant should refer to the inactive application if he or she reapplies in the future. This paragraph refers only to data required on the application form; it does not apply to requests for further biological information or other information upon which a substantive decision with respect to the permit application would be made. To determine whether the HCP is complete, see Chapter 3, Section B.1, B.8, and Chapter 6, Section B.4. To determine whether the NEPA analysis is complete, see Chapter 5, Sections A.1-4. In most HCPs, however, the adequacy of these documents will be evaluated during the HCP development phase,not after the permit application is submitted. Only in relatively rare cases--e.g., when an applicant has prepared the HCP without Service assistance--will their adequacy need to be evaluated for the first time at the beginning of the formal permit processing phase. 5. Problems Identified During the HCP Development. Problems identified during the HCP development phase should be elevated to the Regional Offices early in the process for suggestions that might be helpful to the applicant and the Field Office for resolving differences. Even if the Services perceive that problems remain, the applicant is entitled to submit a permit application. The Services should publish a Notice of Receipt of the permit application in the Federal Register and duly process the application. However,prior to announcing receipt of such an application in the Federal Register, FWS or NMFS may detail the HCP's deficiencies and the reasons for them to the applicant in writing. �"� 6-9 n The above discussion applies to biological issues and issues of scientific judgement only. The Services need not process a permit application that lacks statutory HCP components or other application components required by Federal regulation. 6. FWS Law Enforcement LEMIS System. For FWS, all permits and permit numbers issued under the ESA must be issued through LEMIS (Law Enforcement Management Information System), managed by the FWS Law Enforcement Division. LEMIS contains the following information for each permit and permit application: o Basic information on the permit applicant(e.g., name, address, telephone number); o Pertinent dates (e.g., application receipt date, issuance and expiration dates, report due dates, and revocation dates); o Permit authorizations and/or conditions; o Species involved; o Location of the authorized activities; and, o Identity of the permit issuing office. Once the application review process is complete and a decision is made to issue the permit, the permit must be issued with a LEMIS number and the issuance must be recorded in LEMIS. The terms and conditions that go with the permit are often printed on a separate sheet of paper and are attached to the permit(see Appendix 15 for a sample permit form and Appendix 17 for examples of issued permits). C. Internal FWS/NMFS Review 1. Early Coordination Between the Field and Regional Office. To ensure timely processing of permit applications,the Regional Office, Field Office, Solicitor's Office (FWS)or General Counsel's Office (NMFS), and in some cases the NMFS Office of Protected Resources, should begin communicating about an HCP effort as soon as possible after serious discussions on the HCP begin. Early coordination helps avoid processing delays by identifying and resolving internal disagreements and other problems before the HCP is completed. This allows Regional Office staff to provide technical assistance to the Field Office as needed, and ensuring Regional Office familiarity with the HCP when the application is received by that office and formal permit processing begins. 6-10 ^� Management should always be involved early in the process. Under no circumstances should the Field Office and Regional Office find themselves in serious disagreement on the substantive aspects of an HCP after a permit applicant who has requested Field Office assistance in developing the HCP has submitted the application to the Regional Office for approval. There are various ways that coordination between the Field Office and Regional Office on a developing HCP can occur: (1)periodic briefing statements from the Field Office to the Regional Office; (2)meetings between Field Office and Regional Office staff; (3)joint Field/Regional review of HCP drafts; and(4)participation by Regional Office staff management in important meetings (sometimes referred to as "milestone" meetings). Specific methodologies are left to the discretion of the individual Regions. At a minimum, during the HCP development phase the Field Office should regularly apprise the Regional Office about: (1)the proposed project or activity; (2)the species involved; (3) current status of the planning effort including primary features of the mitigation program; (4) positions with respect to the planning effort of affected public and private interests; (5) any obvious or underlying controversies or issues that could affect the final outcome of the HCP or the permit processing phase; and (6) any pertinent information that would help the Regional Office understand the HCP and process the application when it is submitted. Questions about HCP policy interpretation or procedure by the Field Office should be elevated quickly to the Regional Office when they arise. The Regional Office should discuss the incorporation or implementation of any new policies,which are introduced while preparing an HCP,with the Assistant Director for Ecological Services to ensure the interpretation of the policy is sufficient and within the overall National policy guidance for the HCP program. The Regional Office should also keep the Solicitor's or General Counsel's Office informed and request assistance on legal issues promptly when needed. If the Regional Office, Solicitor's Office, or General Counsel's Office has specific concerns about ongoing or pending HCPs or foresees any problems with pending permit applications in light of section 10 permit issuance criteria or other requirements, it should notify the Field Office as soon as possible. The Field Office and Regional Office must then jointly resolve any outstanding internal concerns. Briefing statements and other written records of coordination between the Field and Regional Office during the HCP development phase should be maintained as part of the administrative file. They may also be forwarded to other FWS/NMFS Regions to aid inter-Regional awareness of HCP activities. 2. Distribution of the Application Package. The Regional Office that receives the permit application package should send the package to the following offices for review, generally requesting comments within 30 days;this should be done as early as possible so that this review period can run concurrently with the 30-day public comment period: n 6-11 o The appropriate Solicitor's (FWS)or General Counsel's (NMFS) Office with a written request for review, unless legal review is waived(see Section C.4 below). o For FWS,the Assistant Regional Director(s) of Law Enforcement with jurisdiction over the applicant's Region of residence, and the Region(s)where the proposed taking would occur. The appropriate ARD and ARD-LE should jointly determine whether, and under what circumstances, FWS law enforcement personnel need to review the entire application package. Such review is advised if there are questions about the enforceability of the HCP or the HCP involves other potential law enforcement issues. For FWS, check with Law Enforcement whether LEMIS gives a "PRIOR INVESTIGATION RECORD" warning about the applicant. If such a warning appears, a permit may not be issued until the ARD-LE approves. For NMFS,the Regional Law Enforcement Division with jurisdiction over the applicant's Region of residence, and the Region where the proposed taking would occur. The Regional Director and Law Enforcement Division will determine whether further review is necessary. o If the application package is submitted to a Regional Office other than the Regional Office with lead responsibility for the affected species, comments from the lead Region and other Regions in the species'range should be requested. o The Field Office conducting the internal section 7 consultation, if that office is different than the Field Office that assisted in developing the HCP [see Section C.3(b) below]. o The state fish and wildlife conservation agencies of states in which the proposed taking will occur, as well as any Federal agencies that are directly involved in or affected by the HCP program. This may not be necessary if these agencies received the package directly from the permit applicant. o Where appropriate,technical scientific comment could be solicited from species experts within or outside the Services and from the recovery team if one is available. 3. Internal Section 7 Consultation. Under section 7 of the ESA, issuance of an incidental take permit by FWS or NMFS is a Federal action subject to section 7 compliance. This means the Services must conduct an internal (or intra-Service) formal section 7 consultation on permit issuance. For FWS, this 6-12 �` i-� can be conducted between the Regional Director's office, which issues the permit, and the Ecological Services office,which is responsible for the endangered species program. It may also be conducted between the Assistant Regional Director for Ecological Services and the Field Office that assisted the applicant in developing the HCP. It is strongly encouraged to include the section 7 biologist in the developmental process of the HCP, so that the section 7 requirements can be addressed early in the process to eliminate possible difficulties or the potential call of jeopardy at the end of the process. The Services regard these two processes as concurrent and related. For NMFS, consultation may be conducted between the Field Office and the Regional Director or between the Endangered Species Division and the Office of Protected Resources in Washington, D.C. In the HCP context, informal consultation may be considered to include all Service Field Office/Regional Office coordination and assistance to the applicant during the HCP development phase. Formal consultation on a section 10 permit typically is not initiated until the permit processing phase. a. Role of the Section 7 Consultation. The purpose of any formal consultation is to insure that any action authorized, funded, or carried out by the Federal government is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat of such species. Formal consultation terminates with preparation of a biological opinion, which .-1 provides the Services' determination as to whether the proposed action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Internal consultation on a section 10 action ensures that issuance of the permit meets ESA standards under section 7. In practice,because one of the section 10 issuance criteria is the same as the regulatory definition of jeopardy under section 7 (see Chapter 7, Section B.4),the section 7 consultation represents a last internal "check" that the fundamental standard of avoiding jeopardy has been satisfied. Another purpose of formal section 7 consultation is to develop reasonable and prudent measures and terms and conditions to minimize anticipated incidental take, or, if necessary, reasonable and prudent alternatives to eliminate the risk of jeopardy. These are included with the biological opinion. However, since the Services ordinarily will have provided technical assistance in developing the HCP,and included all necessary mitigation, reasonable and prudent measures or alternatives rarely will need to be developed during the section 7 consultation. This should be necessary only in cases where an applicant did not consult with the FWS or NMFS in developing the HCP or did not incorporate Service recommendations and such measures or alternatives are necessary to satisfy the requirements of section 7. Reasonable and prudent measures are defined as required actions identified during formal intra-Service consultation which the Regional Director believes necessary or appropriate to minimize the impacts of incidental take. Reasonable and prudent measures, if necessary, can r 6-13 be used to modify the HCP. However, such adjustments should be made only if they are minor in scope, and they ensure compliance with the requirements of the ESA. There should be very few cases where the Services introduce reasonable and prudent measures at the end of the HCP process since such matters should have been fully discussed with the permit applicant prior to the submission of the HCP. Any changes necessitated by the reasonable and prudent measures should be discussed in advance with the applicant. b. Who Conducts the Section 7 Consultation? The Services must be held to the same rigorous consultation standards that other Federal agencies are required to meet under section 7. This means, in part,that internal consultations on section 10 permit applications should be as impartial as possible. However, it is also important that section 7 consultation on a permit application does not result in otherwise avoidable delays when meeting target permit processing times. Such delays may result if the section 7 consultation is assigned to an office too far removed from the location and circumstances of the HCP. The biological opinion concluding formal section 7 consultation may be done by the FWS or NMFS office that assisted in HCP development or by another office. To avoid possible biases,the staff member conducting the section 7 consultation should not be the section 10 biologist providing technical assistance to the HCP applicant. This will help ensure that the intra-Service section 7 consultation is an independent analysis of the proposed HCP. If, because of staff time constraints,this is not possible, then the biological opinion should be reviewed by another knowledgeable biologist before it is signed by the approving official. It is very important that the staff member that completes the section 7 consultation be involved in the initial stages of the HCP process. This will help ensure that the section 7 requirements are addressed in the HCP and that the two processes are integrated which will help expedite the permitting process. If the Regional Director has delegated the authority,the biological opinion may be signed by an approving official in the Field Office. The biological opinion is then reviewed and finalized by the Regional Office processing the permit application. This ensures a good balance between independent review and timely permit processing. The biological opinion may also be finalized and signed by the Field Office, if the Regional Director has delegated the authority to do so. This handbook allows FWS and NMFS Regional Offices and Field Offices the discretion to use any reasonable method for conducting internal section 7 consultations, so long as (1)the resulting determination is reviewed or finalized by Service staff other than the Field Office staff HCP representative; and (2)the method does not result in failures to meet permit processing times described on pages 1-14 and 6-3. c. Conferences on Proposed Species. Under Section 7(a)(4) of the ESA and 50 CFR 402.10, a Federal agency must "confer" with the FWS or NMFS "...on any agency action which is likely to jeopardize the continued 6-14 r'` existence of any species proposed to be listed under section 4 or result in the destruction or adverse modification of critical habitat proposed to be designated for such species." Thus, the Services must confer, formally or informally, on any HCP and section 10 permit application that addresses proposed species or proposed critical habitat. Technically,this needs only be done if issuance of the permit is likely to result in jeopardy to a proposed species or adverse modification of proposed critical habitat;this should not occur if the FWS or NMFS has assisted the applicant in preparing the HCP. Nevertheless,the Services should document any conclusion reached that issuance of the section 10 permit is not likely to jeopardize proposed species or adversely modify proposed critical habitat. This information can be included with the biological opinion prepared for listed species addressed in the HCP, thus avoiding the need for a second section 7 document. The FWS/NMFS section 7 handbook contains further information about preparation of section 7 conference documents. For purposes of section 10 permit applications,FWS and NMFS will treat candidate species or any species (e.g., unlisted species)that are adequately covered in an HCP (see Chapter 4, Section A) in the same manner as proposed species with respect to conferencing procedures. This will ensure that such species have been addressed by the Services with respect to section 7 requirements should they become listed after the permit has been issued. Refer to the FWS's Endangered Species Act Intra-Service Consultation Handbook for further guidance. d. Biological Opinion Formats/Requirements. It is essential that section 7 consultation on a section 10 permit application be expeditiously completed and that the resulting biological opinion is legally sound. The following suggestions are provided. Incorporation by Reference between the Biological Opinion& Set of Findings A biological opinion for an HCP and the Set of Findings (which describes how the HCP meets statutory issuance criteria) can also be duplicative. To avoid this,the Set of Findings may incorporate the biological opinion by reference to the extent that they duplicate each other. This may include incorporating the description of the project and the jeopardy analysis. Cross Referencing An HCP contains many of the same components typically provided in biological opinions--including a project description, assessment of impacts, and description of a mitigation program. Significant consolidations to the HCP,through cross referencing, should be avoided since the HCP must meet the statutory requirements of section 10(a)(2)(A) and be a stand alone document, however,the biological opinion can be treated more flexibly. When possible without the loss of clarity or legal adequacy,the biological �"� 6-15 opinion could cross-reference technical information provided in the HCP rather than repeat the same information. Requirements of the Biological Opinion Under Federal regulation [50 CFR 402.14(h)-(i)] and section 7(b)(3) and 7(b)(4) of the ESA,the biological opinion for a section 10(a)(1)(B) permit application must contain, at a minimum: o A summary of the information on which the opinion is based. This should include a brief description of the HCP and other documents prepared with the HCP, including memoranda of understanding, biological reports, and the NEPA analysis. o A detailed discussion of the effects of the action on listed species or critical habitat. o The Services' opinion on whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. This constitutes the Service's "jeopardy" or "no jeopardy" determination with respect to the permit application. In most cases, reasonable and prudent measures and terms and conditions will simply require compliance with the permit, HCP, or IA, since these documents typically have identified the equivalent of such measures and ensured their implementation. The only exception to this is if the Services determine that additional measures are needed to minimize the impact of taking, or the Services and applicant agree to include additional terms and conditions not otherwise specified in the HCP. Reasonable and prudent alternatives are only needed in those rare cases when the Services determine that permit issuance would be likely to jeopardize the continued existence of the species involved. The Incidental Take Statement Section 7(o)(2) states that "any taking that is in compliance with the terms and conditions specified in a written statement provided under subsection (b)(4)(iv)of this section [referring to the terms and conditions] shall not be considered to be a prohibited taking of the species concerned." This "incidental take statement" provides a take authorization mechanism for Federal actions similar to section 10(a)(1)(B) for non- Federal actions. What is the role of the incidental take statement in a biological opinion for an HCP application? This can create considerable confusion among HCP reviewers since the take proposed under an HCP ultimately is authorized by the section 10(a)(1)(B)permit, not the incidental take statement. At the same time,the section 7 implementing regulations [50 CFR 402.14(i)] require an incidental take statement in a biological opinion where the Federal action is expected to result in take but will not violate section 7(a)(2). 6-16 Clearly,the Service action of issuing an incidental take permit will result in take. Thus, inclusion of an incidental take statement with a biological opinion for an HCP application is necessary to avoid any uncertainty about regulatory compliance with 50 CFR 402.14(I). At the same time, any reasonable and prudent measures or terms and conditions included with an incidental take statement for an HCP application should be consistent with the conservation program in the HCP and any terms and conditions included with the permit except in instances described above. It is also wise to avoid unnecessary duplication between the terms and conditions of the permit and those of the incidental take statement. With these considerations in mind,the following language is recommended for the incidental take statement for any section 10(a)(1)(B)permit application: Section 9 of the Act and Federal regulation pursuant to section 4(d) of the Act prohibit the take of endangered and threatened species,respectively,without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot,wound,kill,trap, capture, or collect, or to attempt to engage in any such conduct. Harm is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2),taking that is incidental to and not intended as part of the proposed action is not considered to be prohibited taking under the Act provided that such taking is in compliance with this Incidental Take Statement. The proposed [name] HCP and its associated documents clearly identify anticipated impacts to affected species likely to result from the proposed taking and the measures that are necessary and appropriate to minimize those impacts. All conservation measures described in the proposed HCP,together with the terms and conditions described in any associated Implementing Agreement and any section 10(a)(1)(B) permit or permits issued with respect to the proposed HCP, are hereby incorporated by reference as reasonable and prudent measures and terms and conditions within this Incidental Take Statement pursuant to 50 CFR 402.14(I). Such terms and conditions are non-discretionary and must be undertaken for the exemptions under section 10(a)(1)(B) and section 7(o)(2) of the Act to apply. If the permittee fails to adhere to these terms and conditions, the protective coverage of the section 10(a)(1)(B) permit and section 7(o)(2) may lapse. The amount or extent of incidental take anticipated under the proposed [name] HCP, associated reporting requirements, and provisions for disposition of dead or injured animals are as described in the HCP and its accompanying section 10(a)(1)(B)permit[s]. In some cases, the Service(s)must specify authorized levels of incidental take in the incidental take statement as well as in the HCP and permit. However,the incidental take 6-17 levels specified in the HCP and permit and those specified in the incidental take statement should be consistent with each other. In such cases,the following introductory paragraph should be included: Based on the proposed [name] HCP and on the analysis of the effects of the proposed action provided above,the Service[s] anticipates that the following take may occur as a result of the proposed action: If requested by the applicant, the following paragraph may be included where plants are addressed in the HCP and are named on the permit. Generally, section 9 take prohibitions do not apply to listed plant species on non- Federal lands. Therefore, listed plants typically do not have to be included in the incidental take permit. However, State law may have take prohibitions associated with the HCP. In addition, the Service must review the effects of its own actions on listed plants, even when those listed plants are found on private lands. In approving an HCP and issuing an incidental take permit during the intra-Service section 7 consultation,the Service must determine that the permit will not"jeopardize the continued existence" of listed plants. In the interest of conserving listed plants,the Service may request that the landowner voluntarily assist the Service in restoring or enhancing listed plant habitats that are present within the area covered by the HCP. 4. Legal Review of the Application Package. The purpose of legal review of the permit application package is to ensure that the HCP and associated documents meet the legal requirements of the ESA. This is especially important for an HCP,which has specific requirements, and for Implementing Agreements which address unique or first impression issues. It is also important for large-scale or regional HCPs which are often complex and address a variety of activities. The need for legal review of"low-effect" HCPs is less critical, since these projects are by definition minor in scope and impact(see Chapter 8). For NMFS, all section 10 permit applications must receive legal review by the General Counsel's Office. For FWS, it is agency policy to require Solicitor's Office review of all section 10 permit applications, with the exception noted below. This will be true unless additional exceptions are allowed by a line authority no lower than the Assistant Regional Director for Ecological Services. However, Solicitor's review of HCPs categorized as "low- effect" can be waived if the HCP meets all applicable criteria for low-effect HCPs as defined in Chapter 1, Section F.2. The template in Appendix 4 can be used as a basis for developing Implementing Agreements for HCPs that are not low-effect, though Solicitor's Office review would be required in such cases. 6-18 For FWS,the Solicitor's Office need review only those parts of the permit application package that the Regional Director request be reviewed--typically the HCP and Implementing Agreement. Coordination with the Solicitor's Office on a permit application package should begin as soon as possible in the permit processing phase and ideally during the HCP development phase. After Solicitor review is complete,the Solicitor's Office should forward a memorandum to the RD or appropriate ARD stating that it has reviewed the IA and other documents, as applicable, and that they meet statutory and regulatory requirements. 5. Preparing the Signature Package. When all HCP and NEPA analyses have been completed and reviewed by appropriate Service staff,the Regional Ecological Services Office (FWS), or Endangered Species Division or Environmental and Technical Services Division(NMFS), should sign those for which it has signature authority and assemble those and all others that are necessary for permit issuance into a "signature package." This package is then forwarded to the Regional Director's Office for finalization and signature (for FWS), or to the Regional Director's Office or Office of Protected Resources in Washington, D.C. (for NMFS). Signature authority for HCP documents may vary somewhat from Region to Region. Typically, for FWS documents requiring signature by the appropriate ARD are the: (1) biological opinion (unless signed by the Field Office) and (2) Set of Findings. Documents requiring signature by the Regional Director or Deputy Regional Director are the: (1) Implementing Agreement; (2)NEPA decision document(EAM, FONSI, or ROD); and(3)the permit. The signed biological opinion and Set of Findings should be attached to the signature package for the Regional Director's or Deputy Regional Director's reference. Where applicable,the Solicitor's memorandum stating that the HCP and associated documents meet statutory requirements also should be attached to the signature package. For NMFS, the permit documents will require the signature of the Chief, Endangered Species Division, and Director, Office of Protected Resources, if the permit is issued in Washington, D.C., or the Regional Director and Environmental and Technical Services Division if it is issued by the Regional Office. All of the supporting documents must be signed prior to the issuance of the permit. The incidental take permit is considered effective as of the date and time the permit is signed. Immediately upon signature,the original permit and one original copy of the Implementing Agreement(if required)must be forwarded to the new permittee. 6. New Policies or Legal Questions. Both FWS and NMFS should discuss the incorporation or implementation of any new policies,which are introduced while preparing an HCP,with the appropriate legal counsel and the Assistant Director for Ecological Services (FWS)to ensure the interpretation of the policy is legally sufficient and within the overall National policy guidance for the HCP 6-19 program or the new policy. Additionally, it is imperative to discuss any legal questions (e.g., statutory or regulatory issues)or uncertainties with the appropriate legal counsel (the Solicitor for FWS and the General Counsel for NOAA) early in the permit development or permit processing phases. D. Federal Resister Notices of Receipt 1. Timing of the Notice. Under section 10(c) of the ESA and Federal regulation [50 CFR 17.22 and 17.32(b)(1) (ii) or 50 CFR 217], publication of a Notice of Receipt of a permit application in the Federal Register is required for each section 10 permit application received by the FWS or NMFS. NEPA regulations or FWS policy also require publication of Notices of Availability of NEPA analysis (see Chapter 5, Section A). These Federal Register notices should be published after submission of the complete application package and final review of the application package by Regional Office staff, but as early in the formal processing phase as possible. The notices must offer the public at least 30 days to comment on the documents where an EA is being prepared. A longer review is required for a draft EIS. To streamline the public review process, the Notice of Receipt of a Permit Application and Notice of Availability of the NEPA analysis should be published concurrently. 2. Content of the Notice. The Federal Register Notice of Receipt of an Incidental Take Permit Application must include the following information(see Appendix 16 for sample Notices of Receipt): o Applicant's name and city and state of residence; o For FWS,the application file number(PRT- ) as issued by LEMIS; o A brief description of the proposed activity,the species involved, estimated number of individual animals or habitat quantity to be taken, affected locations, and proposed length of the permit, if known; o Length of the comment period(minimum is 30 days from date of publication); for a draft EIS, a minimum 45-day comment period is required; o Name and mailing address of the office(s) from which a copy of the application package may be obtained; street address and business hours where persons may view the application in person; and address of office where comments are to be submitted, including FAX number, if available; 6-20 o The name, address, and telephone number of a Service employee to contact for further information; and o Supplementary information including a brief description of the measures the applicant will implement to minimize, mitigate, and monitor the incidental taking; a summary of the alternatives considered; a description of long-term funding, if any; and a summary of significant environmental effects. The notice should be brief but of sufficient detail to convey the main aspects of the proposed activity. 3. Submission to the Office of the Federal Register and PDM. For FWS, when the Federal Register notice is ready for publication, three copies of the notice with original signatures by the appropriate ARD on all copies, and the name and title of the signatory below the signature,must be submitted to the Office of the Federal Register at the address below. A transmittal letter is usually included. U.S. Mail National Archives & Records Administration Office of the Federal Register Washington, D.C. 20408 (Telephone 202/523-3187) Overnight/Courier Delivery Office of the Federal Register Room 700 800 North Capitol Street,Northwest Washington,D.C. 20002 (Telephone 202/523-3187) Federal Register notices generally are published within 3 working days after receipt by the Office of the Federal Register, if received prior to 2:00 p.m. A copy of the Federal Register notice, with the originating office's billing code, should also be sent to the FWS Division of Policy and Directives Management(PDM) in Washington, D.C. at the address below. The notice should be sent to PDM no later than the time it is sent to the Office of the Federal Register. The purpose of this is to allow the Washington D.C., PDM Office to assist in prompt publication of the notice in case questions arise after the notice has been submitted. U.S. Fish and Wildlife Service Division of Policy and Directives Management ARLSQ-224 4401 N. Fairfax Drive n 6-21 Arlington, VA 22203 FAX: 703-358-2269 For NMFS, all Federal Register notices must be cleared through the Office of Fisheries Conservation and Management in Washington, D.C. (see Appendix 12 for address). If the Regional Office believes an HCP permit application is potentially controversial, faces a likelihood of legal challenge, or otherwise address issues deserving of Secretarial attention, it should notify the Regional Public Affairs Office and request the Regional Public Affairs Officer to coordinate with appropriate FWS or Department personnel in Washington, D.C. For NMFS, the Office of Protected Resources should be notified (see Appendix 12 for address). 4. Providing HCP Documents to the Public/FOIA Considerations. Once a permit application is received, the Service should encourage the applicant to involve all appropriate parties. This is especially true for complex and controversial projects. The Service should also notify interested parties when documents (e.g.,NEPA analysis or HCP) become available for public review. In addition, during the public comment period the Service may wish to hold informational meetings and answer questions that members of the public may have regarding the HCP or permit issuance. During the comment period, the Services should provide the permit application package to those requesting copies. The Services should provide information that documents compliance with the requirements of section 10 (a)(2) of the ESA. The Service should not release confidential,proprietary, or individual privacy information which may be protected under 43 CFR 2.13(c)(4) and(6)respectively. If the applicant is a business or sole proprietorship, the Services should review the application for any information that may be deemed "confidential business information" or could cause "competitive harm." In such cases, the program should release information in accordance with guidance found in 43 CFR 2.15(d). If the applicant is an individual,the information in block 4 of the application (date of birth, social security number, etc.) must be blocked out before mailing in accordance with the Privacy Act and FOIA(see Appendix 11). The program should also review the remainder of the application for information that could invade personal privacy. In both cases, the Services should send the requestor a note explaining what was deleted and that it may be available under the FOIA. If the requestor filed a FOIA request initially for the information,the program in consultation with the Solicitor's office, must provide an explanation of what material was exempted and why; and provide appeal rights to the requestor in accordance with the FOIA. Documents that reflect intra-agency or inter-agency deliberations are most likely exempt under the FOIA. Exemption would depend on whether the agency can show such 6-22 information is predecisional and deliberative, foreseeable harm will result in their release; and apply to both the deliberations and any other information which is not reasonably segregated from them. After the comment period, the Services should provide copies of applications and related material to those requesting a copy. Though a FOIA request is not required to receive information,release of the information should still be done in accordance with the FOIA. The application package, including the NEPA analysis,must be provided to all affected interests who request the package or have a record of significant interest in the planning program. For EISs it is wise to prepare a distribution list before the EIS is printed, since an adequate number of copies must be printed to meet the demand. For HCPs, Field Offices should estimate the number of copies needed to send to commenters and the affected public and arrange for duplication. When requested, copies of the application package should be mailed immediately since the public has a limited time to review documents and submit comments. If additional significant information is submitted by the applicant after the 30-day comment period has closed, which requires a change to the application, the comment period should be reopened through a second Federal Register notice. The Services are not obligated to consider comments received after the 30-day comment period has closed, but may elect to do so, especially if they contain significant biological information or if discussions with the applicant have continued after the close of the comment period. All late comments must then be considered, however. If any new information received from either commenters or the applicant is of relevance to the decision regarding issuance of the permit, it will be necessary to reopen the public comment period. 5. Objection to the Permit. Any individual may object to issuance of an incidental take permit for an endangered species during the 30-day comment period. An objection should be in writing, refer to the permit application number, and provide specific, substantive reasons why the individual believes the application does not meet the permit issuance criteria or other reasons why the permit should not be issued. For FWS, if the objector requests notification of the final action in writing and the FWS decides to issue the permit, the agency must notify the objector in writing that the permit will be issued. A reasonable effort must be made to accomplish this notification at least 10 days before permit issuance. If notification is verbal, it must later be followed in writing. If notification prior to permit issuance could lead to harm to the endangered species or population involved, or unduly hinder proposed activities to be authorized, FWS may dispense with prior notification; however,written explanation for doing so must be provided to the objector following permit issuance. 6-23 The objection process described above does not apply to threatened species. Under 50 CFR 17.32(b)(1)(ii),the FWS must publish notice in the Federal Register for each application to incidentally take a threatened species, and the notice should invite written comments from interested parties during a 30-day comment period. The FWS is not required to address objections to permit issuance for threatened species in the manner described above,though doing so is recommended. 6. Notice of Permit Issuance, Amendment, Denial, or Abandonment. Although not required by law or Federal regulation, it is FWS policy to notify the public of their section 10 permit application decisions. NMFS is required by its regulations at 50 CFR 222.24(c)to publish a notice of the decision within 10 days after the date of issuance or denial. Notices of permit issuances, denials, and amendments should be published in the Federal Register on a quarterly or biannual basis. A 45-day waiting period is recommended prior to publication of permit denial notices to allow time for appeals by the applicant. Appendix 18 contains"templates" for preparing Notices of Issuance for a single permit and for multiple permits. Notice of the abandonment of a permit application by the applicant need not be published. E. Permit Issuance Conditions and Reporting Requirements The permit(for FWS, Form 3-201; for NMFS, agency letterhead)must identify the species, stipulate the activities authorized, and indicate the location(s)where the activities can be conducted. The permit,together with its attached terms and conditions, must contain sufficient information so that no question remains by the permittee or an enforcement officer as to the scope of the authorized taking. Appendix 17 contains examples of issued FWS incidental take permits. 1. Permit Conditions. The Services have the authority to impose terms and conditions in the permit necessary to carry out the purposes of the permit, including but not limited to, monitoring and reporting requirements necessary for determining whether such terms and conditions are being complied with. The terms and conditions placed in the permit should be the same as, or a re- statement of, those described in the final HCP,with the exception of standard conditions that go into all permits. However, in some cases FWS or NMFS may need to incorporate additional conditions resulting from the section 7 consultation. Reasonable and prudent alternatives, if provided in the section 7 consultation to avoid jeopardy, as well as reasonable and prudent measures and terms and conditions, if included in the incidental take statement, must be included in the permit conditions. Permits should also identify protocols for handling dead and/or injured specimens of protected species taken under authority of the permit. 6-24 2. Permit Duration. [See 50 CFR 13.21(f) or 50 CFR 222.22(e)] The Conference Report for the 1982 Section 10 amendments states, "The Secretary is vested with broad discretion in carrying out the conservation plan provision to determine the appropriate length of any section 10(a)permit issued pursuant to this provision in light of all of the facts and circumstances of each individual case" (H.R. Rep.No. 97-835, 97th Congress, Second Session). Thus,the allowable duration of a permit is flexible but an expiration date must be specified (for FWS, in block 7 of the permit Form 3-201). The duration of planned activities,the potential positive effects to listed species provided under the permit, and the potential negative effects to the species that may result from premature permit expiration should be considered in determining permit length. Also, local government agencies may wish to tie the permit expiration date to local land use plans. Development or land use activities and the conservation program proposed in the HCP may require years to implement. The Services must assure the applicant that authorizations under the permit will be available for the life of the project, and the public that conservation measures under the permit will remain in effect for as long as necessary to implement the conservation program. 3. Distribution of Copies of the Permit. A copy of the issued permit should be provided to the Endangered Species Division in Washington, D.C. (FWS and NMFS), applicable Field Offices, other Federal agencies involved in the HCP, and affected state wildlife and conservation agencies. 4. Reporting Requirements. [See 50 CFR 13.45; 50 CFR 17.22(b)(3) and 17.32(b)(3) or 50 CFR 222.22(d)(1)] The permit should include reporting requirements necessary to track take levels occurring under the permit and to ensure the conservation program is being properly implemented. Federal regulation(50 CFR 13.45) requires annual reports unless otherwise specified by the permit. The HCP itself will often specify reporting requirements. Unless reporting requirements in addition to those in the HCP are deemed to be necessary,reporting requirements in the HCP and the permit should be the same. Failure to submit adequate reports as required by the permit is a violation of the permit and may lead to permit suspension or revocation. o Each permittee must file a report, even if no activity was conducted under the permit in that reporting interval. o No permittee should be required to include in a report information of a private or personal nature (for individuals). Sensitive business information or information 6-25 that is otherwise considered proprietary(for businesses) should also generally not be required. o If a report required by the permit is not submitted or is inadequate,the permittee should be notified in writing and offered at least 30 days to demonstrate compliance. If the permittee fails to comply within the allotted time,permit suspension procedures (50 CFR 13.27)or revocation procedures (50 CFR 13.28 for FWS, 50 CFR 222.27 for NMFS) should be initiated. o Report due dates should be flexible and wherever possible tailored to the activities being conducted under the permit(e.g., due at the end of a particular stage of the project). If possible, the due date should also be coordinated with other(e.g., state) reporting requirements so the permittee can satisfy more than one reporting requirement with a single report. For low-effect HCPs in which the project or activity is completed in less than a year or in which annual reporting is otherwise deemed to be unnecessary, a single "post-activity" or "post-construction" report is often adequate. o A copy of the report, or a notice that it is available should be sent to state wildlife agencies and other appropriate parties, either by the applicant or the FWS or NMFS. o Reports should be monitored closely to ensure that they contain adequate ✓'� information and the permittee is complying with the authorizations and conditions of the permit. For FWS, information about apparent violations should be forwarded to the appropriate ARD-LE Office and Law Enforcement special agent. The Regional Office, in coordination with Law Enforcement, should immediately notify the permittee of apparent noncompliance and request an explanation. For NMFS, permit violations should be reported to the appropriate Regional Law Enforcement Division and NOAA General Counsel for Enforcement and Litigation. F. Permit Denial,Review, and Appeal Procedures 1. Permit Denial. If the HCP and associated documents do not satisfy issuance criteria under the ESA and Federal regulation,the permit application must be denied. The applicant must be notified of the denial in writing and the reasons for the denial, of applicable regulations resulting in the denial, and of the applicant's right to request reconsideration of the permit application. For NMFS, denials must be made in accordance with 15 CFR part 904. 2. Review Procedures. [See 50 CFR 13.29 or 50 CFR 220.21] 6-26 A section 10 applicant has access to a two-tiered system of review of a permit denial within the issuing office: (1) if the permit is denied, the applicant can request reconsideration of the permit application; and(2) if the request for reconsideration is denied, the applicant can appeal the decision. To ensure independent review of a permit denial at each stage, review decisions and signature authority should be as follows: o For FWS, initial permit denials should be signed by the appropriate Assistant Regional Director; o Decisions on requests for reconsideration should be signed by the Deputy Regional Director(DRD); o Appeal decisions (the final administrative action) should be signed by the Regional Director(RD). For NMFS, the above decisions must be signed by the Regional Director or the Director of the Office of Protected Resources Division in Washington, D.C. 3. Requests for Reconsideration. [See 50 CFR 13.29(a)-(d) or 50 CFR 220.21] For FWS, a permit applicant may request reconsideration of(1) denial of a permit application, renewal, or amendment request; and(2) amended, suspended, or revoked permits, except for permit actions required by changes in statute or regulations. The applicant's request must meet the criteria outlined in 50 CFR 13.29,be in writing, be signed by the applicant or a designated representative, and be addressed to the Deputy Regional Director. When the DRD's office receives a request for reconsideration,the ARD that issued the denial must forward a copy of the applicant's file, along with a summary of the file's pertinent points,to the DRD. If the DRD determines that permit issuance criteria have been satisfied, the denial is reversed and a permit may be issued. If the denial is sustained,the DRD must notify the applicant of the decision within 45 calendar days of receipt of the request. This notification must be in writing, state the reasons for the decision, and describe the evidence used to make it. The letter must also provide information concerning the applicant's right to appeal,the office to which the appeal should be made, and the procedures for making the appeal. For NMFS,procedures for requests for reconsideration are addressed in 50 CFR 220.21. 4. Appeal. [See 50 CFR 13.29(e)-(f)] For FWS, an applicant may appeal a second denial of the permit in accordance with 50 CFR 13.29(e)-(f). The written appeal request must be signed by the applicant or a designated �` 6-27 representative and be addressed to the Regional Director. Before a decision is made,the appellant may present oral arguments before the RD if the RD believes this could clarify issues raised in the written record. The RD shall provide the appellant with written notification of the appeal decision within 45 calendar days of receipt of the request. This time frame may be extended with good cause if the appellant is notified of and concurs with the extension. The RD's decision on a permit appeal constitutes the final administrative decision of the Department of the Interior. 5. Copies of Denials. For FWS, a copy of all section 10 permit denials, including denial of reconsideration and appeal requests, should be sent to all affected Field Offices,the ARD-LE, and the Division of Endangered Species in Washington, D.C. For NMFS, copies should be sent to affected Field Offices and Regional Offices and the Endangered Species Division in Washington, D.C. G. Permit Amendments [See 50 CFR 13.23 or 50 CFR 222.25] For FWS, amendment of existing permits may be requested by a dated letter signed by the applicant and referencing the permit number. The $25 application fee is required unless the applicant is fee exempt(see Appendix 10). Procedurally, a permit amendment application is treated in the same way as the original permit application. However, documentation needed in support of a permit amendment will vary depending on the nature of the amendment and the content of the original HCP. If the amendment involves an action that was not addressed in the original HCP, Implementing Agreement, or NEPA analysis,these documents may need to be revised or new versions prepared addressing the amendment submitted. If the circumstances necessitating the amendment were addressed in the original documents (e.g., a previously unlisted species adequately addressed in the HCP is subsequently listed),then only amendment of the permit itself is generally needed. See Chapter 4 for a discussion of how previously unlisted species are treated if they are listed. For NMFS, applications to modify a permit are subject to the same issuance provisions as an original permit application as provided in 50 CFR 222.22. H. Permit Renewal [See 50 CFR 13.22 or 50 CFR 220.24] For FWS, Federal fish and wildlife permits may be renewed if indicated in block 4 of the permit. Whether or not the permit is renewable should be determined by the Regional Office when the permit is issued. If the permittee files a renewal request and the request is on file with the issuing FWS office at least 30 days prior to the permit's expiration, the permit will remain valid while the renewal is being processed,provided the existing permit is renewable. The permittee may 6-28 '~ not take listed species beyond the quantity authorized by the original permit, however. A renewal request must: o Be in writing; o Reference the permit number; o Certify that all statements and information in the original application are still correct or include a list of changes; o Provide specific information concerning what take has occurred under the existing permit and what portions of the project are still to be completed; and o Request renewal. If a permittee fails to file a renewal request 30 days prior to permit expiration, the permit becomes invalid after the expiration date. If the permittee seeks extension of the expiration date only and proposes no additional taking, a public comment period generally is required. A permittee must have complied with annual reporting requirements to qualify for renewal. For NMFS, requirements for permit renewal are contained in 50 CFR 220.24. I. Permit Transferals Important Notice: On September 5, 1995,the Fish and Wildlife Service published a proposed rule in the Federal Register amending the general regulations for its permit program (50 CFR Part 13 and Part 17). The Service is currently drafting additional language to clarify the relationship between the Part 13 and Part 17 procedures and a proposed rule will be published in the near future. Consequently, some information contained in this section may be outdated upon publication of a final rule. Users of this handbook should check the revised permit procedures when available or contact the Service's Division of Law Enforcement to ensure that the handbook's description of permit administration is consistent with the new regulations. Congress amended section 10(a)(1) of the Act in 1982 to authorize new incidental take permits associated with HCPs. Many HCP permits involve long-term conservation commitments that run with the affected land for the life of the permit. The Services negotiate such long-term permits recognizing that a succession of owners may purchase or resell the affected property during the term of the permit. In other HCP situations,the HCP permittee may be a State or local agency that intends to issue subpermits that authorize the incidental take for the permit to those entities involved in the HCP. 6-29 The Services do not view these situations as problems since the terms of such permits frequently run with the land, binding successive owners to the terms of the HCP. Landowners similarly do not view this as a problem as long as the Services can easily transfer incidental take authorization from one purchaser to another. However,the new landowners must be able and willing to assume the responsibilities associated with the permit(i.e.,the minimization/mitigation strategy and the terms and conditions of the permit)to receive the assurances of the permit. If a landowner, who is a section 10(a)(1)(B)permittee, transfers ownership of the land that occurs within an approved HCP, the Services will regard the new owner as having the same rights with respect to the permit as the original landowner, provided that the new owner agrees to be bound by the terms and conditions of the original permit. Actions taken by the new landowner resulting in the incidental take of species covered by the permit would be authorized if the new landowner agrees to the permit and continues to implement the minimization and mitigation strategies of the HCP. To ensure that original permittees inform new landowners of their rights and responsibilities, a section 10(a)(1)(B)permit must commit the permittee to notify the Services of any transfer of ownership of any lands subject to the permit before the transfer is finalized. The Services should attempt to contact the new landowner to explain the prior permit, and determine whether the new landowner would like to continue the original permit or enter into a new permit. In addition,the original permittee needs to work with the new landowner(s)to ensure they understand the obligations associated with permit transfer. The Services will provide any technical assistance necessary to ensure that all parties understand their rights and responsibilities. If, however, the new landowner does not agree to the terms and conditions of the original permit,the original permittee must work with the Services to determine whether, and under what circumstances,the permit can be terminated. In order to terminate the permit,the Services must determine if the minimization and mitigation measures that were conducted up to that point were commensurate with the amount of incidental take that occurred during the term of the permit. If the incidental take occurred during the initial stages of implementing the permit, but the minimization and mitigation measures occur throughout the term of the permit,the Services shall require that the remainder of the minimization and mitigation measures be implemented before the permit is terminated. In this fashion, the Services will be able to ensure that there is adequate and sufficient minimization and mitigation for the incidental take that occurred during the term of the permit. J. Permit Violations, Suspensions,and Revocations On occasion, the Services may find that a permittee has violated conditions of the permit. This may become evident through review of a permittee's annual report, a field inspection, or 6-30 '~ other means. Implementing Agreements sometimes contain provisions concerning the failure of signatory parties to perform their assigned responsibilities under an HCP. 1. Notifying Law Enforcement. In the event of a known or suspected permit violation, the appropriate ARD-LE and Law Enforcement Special Agent must be notified before any official action is taken(for FWS). If the violation is deemed technical or inadvertent in nature,the ARD-LE may advise that the permittee be sent a notice of noncompliance by certified mail or may recommend alternative action to regain compliance with the terms of the permit. Concurrence from the ARD-LE should be obtained before mailing any correspondence concerning an alleged permit violation to avoid wording that could compromise a current or future investigation. For NMFS, the appropriate Law Enforcement Division and NOAA General Counsel for Enforcement and Litigation should be notified. 2. Permit Suspension/Revocation. [See 50 CFR 13.27 and 13.28] The Services may suspend or revoke all or part of the privileges authorized by a permit, if the permittee does not: o Comply with conditions of the permit or with applicable laws and regulations governing the permitted activity; or o Pay any fees,penalties, or costs owed to the government. If the permit is suspended or revoked, incidental take must cease and wildlife held under authority of the permit must be disposed of in accordance with Regional Office instructions. For further information, consult the regulations on procedures to suspend or revoke permits. 6-31 CHAPTER 7 ISSUANCE CRITERIA FOR INCIDENTAL TAKE PERMITS Upon receiving a permit application and conservation plan completed in accordance with the requirements of section 10(a)(2)(A) of the ESA and Chapter 3 above,FWS and NMFS must consider the issuance criteria described at section 10(a)(2)(B) of the ESA in determining whether to issue the permit. All applicable criteria must be satisfied before a permit may be issued. If the application fails to meet ay of the criteria, the permit must be denied. In addition,the FWS must ensure that general permit issuance criteria described at 50 CFR 13.21 and criteria specific to section 10(a)(1)(B) permits described at 50 CFR 17.22(b)(2) and 50 CFR 17.32(b)(2) are satisfied. However,issuance criteria under at 50 CFR Part 17 are essentially identical to those under the ESA. For NMFS, general permit criteria in 50 CFR 217 and 220 must be met in addition to criteria specific to incidental take permits in 50 CFR 222. For NMFS, general permit criteria in 50 CFR 217 and 220 must be met in addition to criteria specific to incidental take permits in 50 CFR 222,and denials of permits must be made pursuant to Subpart D of 15 CFR part 904. A. General Permit Issuance Criteria The FWS cannot issue a permit if any of the following apply: (1) The applicant has been assessed a civil penalty or convicted of any criminal provision of any statute or regulation relating to the activity for which the application is filed, if such assessment or conviction evidences a lack of responsibility; (2) The applicant has failed to disclose material information, or has made false statements as to any material fact in connection with the application; (3) The applicant has failed to demonstrate a valid justification for the permit and a showing of responsibility; (4) The authorization requested threatens the continued existence of a wildlife or plant population. (5) The FWS finds through further inquiry or investigation, or otherwise, that the applicant is not qualified to conduct the proposed activities. In addition to the above, FWS regulations cite four factors relating to felony violations of national wildlife laws and violation of conditions within other permits that could disqualify an 7-1 applicant from receiving a section 10 permit. These factors are described at 50 CFR 13.21(c). NMFS regulations describe similar conditions under which a permit could not be issued (see 50 CFR 220.21). B. Endangered/Threatened Species Permit Issuance Criteria Section 10(a)(2)(B)of the ESA requires the following criteria to be met before the FWS or NMFS may issue an incidental take permit. If these criteria are met and the HCP and supporting information are statutorily complete,the permit must be issued. 1. The taking will be incidental. Under the ESA, all taking of federally listed fish and wildlife species as detailed in the HCP must be incidental to otherwise lawful activities and not the purpose of such activities. For example, deliberate shooting or wounding a listed species ordinarily would not be considered incidental take and would not qualify for an incidental take permit. Conversely, the destruction of an endangered species or its habitat by heavy equipment during home construction or other land use activities generally would be construed as incidental and could be authorized by an incidental take permit. a. Authorizing Take Associated With Mitigation Activities. Mitigation and monitoring programs sometimes require actions that, strictly speaking, may be construed as a deliberate take. A good example is trapping endangered or threatened animals at a project site to re-locate or protect them in some fashion or to monitor their presence or activities. Generally, actions that result in deliberate take can be conducted under an incidental take permit, if: (1)the take results from mitigation measures (e.g., capture/relocation) specifically intended to minimize more serious forms of take (e.g., killing or injury) or are part of a monitoring program specifically described in the HCP; and(2) such activities are directly associated in time or place with activities authorized under the permit. Examples include capture of endangered animals from a project site and removal to adjacent or nearby habitat, capture and release of animals accidentally entrapped at the site (e.g., in a pipeline trench), capture/release studies for monitoring purposes, even permanent capture for purposes of donation to a captive breeding or research facility. However, where such activities require special qualifications, the HCP should require written FWS or NMFS authorization before any individual is permitted to conduct the work. b. Authorizing Take For Scientific Purposes. 7-2 '�'• Other types of activities cannot be authorized by an incidental take permit because they include actions that are not generally needed to implement an HCP or include long-term components that are not "incidental" to the activity described in the HCP. Examples of these types of activities include holding endangered or threatened animals in captivity for propagation purposes or scientific research; euthanizing them for research purposes; and taking tissue samples for laboratory testing. However, such activities qualify as take for "scientific purposes" or purposes of"enhancement of propagation or survival" and can be authorized under section 10(a)(1)(A) of the ESA. If an HCP calls for activities of this type,the applicant should specify that the project will result in incidental take and take for scientific purposes or for purposes of enhancement of propagation or survival. Application requirements for scientific permits must then be addressed. These are described at 50 CFR 17.22(a)(1)(i-ix) for endangered species and 50 CFR 17.32(a)(1)(i-ix) for threatened species (FWS) and 50 CFR 217, 220, and 222 (NMFS). In addition,FWS must address issuance criteria under 50 CFR 17.22(a)(2) for endangered species and 50 CFR 17.32 (a)(2) for threatened species to issue permits for these purposes. Generally, if proposed activities are well-described in the HCP, including those requiring a scientific permit, and if all incidental take permit application requirements have been met,the only additional information needed for a scientific permit is resumes of individuals who would be conducting permitted activities. The permit issued can be a joint section 10(a)(l)(A) section 10(a)(1)(B)permit--i.e., only one permit need be issued. 2. The applicant will,to the maximum extent practicable, minimize and mitigate the impacts of such taking. The applicant decides during the HCP development phase what measures to include in the HCP (though, obviously,the applicant does so in light of discussions with and recommendations from FWS or NMFS). However,the Services ultimately decide, at the conclusion of the permit application processing phase,whether the mitigation program proposed by the applicant has satisfied this statutory issuance criterion. This finding typically requires consideration of two factors: adequacy of the minimization and mitigation program, and whether it is the maximum that can be practically implemented by the applicant. To the extent maximum that the minimization and mitigation program can be demonstrated to provide substantial benefits to the species, less emphasis can be placed on the second factor. However,particularly where the adequacy of the mitigation is a close call, the record must contain some basis to conclude that the proposed program is the maximum that can be reasonably required by that applicant. This may require weighing the costs of implementing additional mitigation, benefits and costs of implementing additional mitigation, the amount of mitigation provided by other applicants in similar situations, and the abilities of that particular applicant. Analysis of the alternatives that would require additional mitigation n 7-3 n in the HCP and NEPA analysis, including the costs to the applicant is often essential in helping the Services make the required finding. 3. The applicant will ensure that adequate funding for the HCP and procedures to deal with unforeseen circumstances will be provided. These issuance criteria are identical to HCP requirements discussed in Chapter 3. The Services must ensure that funding sources and levels proposed by the applicant are reliable and will meet the purposes of the HCP, and that measures to deal with unforeseen circumstances are adequately addressed. Without such findings, the section 10 permit cannot be issued. Examples of funding mechanisms and methods of ensuring funding are discussed in Chapter 3, Section B.6. The "Unforeseen or Extraordinary Circumstances " discussion in the HCP must be consistent with the joint Department of Interior/Department of Commerce "No Surprises"policy and should impose no higher standard on the permit applicant with respect to unforeseen circumstances than that described under this policy (see Chapter 3, Section B.5(a)). 4. The taking will not appreciably reduce the likelihood of survival and recovery of the species in the wild. This is a critically important criterion for incidental take permits because it establishes a fundamental "threshold" standard for any listed species affected by an HCP. Furthermore, ..."..\ the wording of this criterion is identical to the "jeopardy" definition under the section 7 regulations (50 CFR Part 402.02), which defines the term "jeopardize the continued existence of' as "to engage in an action that reasonably would be expected, directly or indirectly,to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." Congress was explicit about this link, stating in the Conference Report on the 1982 ESA amendments that the Services will determine whether or not to grant a permit, "in part, by using the same standard as found in section 7(a)(2) of the ESA, as defined by the [Services] regulations." Congress also directed the Services to "consider the extent to which the conservation plan is likely to enhance the habitat of the listed species or increase the long- term survivability of the species or its ecosystem." (H.R. Report No. 97-835, 97th Congress, Second Session). Thus, since the issuance of a section 10 permit is a Federal action subject to section 7 of the ESA (see Chapter 3, Section B.2(e)),the law prohibits any non-Federal activity under an HCP from "jeopardizing" a species under two standards: (1)the section 7 jeopardy standard; and (2)the incidental take permit issuance criteria. There is one difference between these two standards--the section 10 issuance criteria apply only to listed fish and wildlife species (because listed plants typically are not protected against take on non-Federal lands), while 7-4 ---,, the jeopardy standard under section 7(a)(2)applies to plants as well as animals. However, the practical effect is the same--the ESA requires a "no jeopardy" finding for all affected federally listed species as a precondition for issuance of an incidental take permit. The basis for this finding is the Service's biological opinion. 5. The applicant will ensure that other measures that the Services may require as being necessary or appropriate will be provided. This criterion is equivalent to the requirement that HCPs include other measures as necessary or appropriate for purposes of the plan. Because the HCP process deals with numerous kinds of proposals and species,this criterion authorizes the Services to impose additional measures to protect listed species where deemed necessary. Although these types of measures should have been discussed during the HCP development phase and incorporated into the HCP, FWS or NMFS must ensure that the applicant has included all those measures the Services consider necessary "for purposes of the plan" before issuing the permit. The principal additional measure that the Services may require at this time is the Implementing Agreement. Other measures the Services might recommend during HCP negotiations could include those necessary to guarantee funding for the mitigation program and monitoring and reporting requirements to ensure permit compliance. Also, any incidental take permit issued will be subject to the general permit conditions described at 50 CFR Part 13, Subpart D (FWS) or 50 CFR Part 220 (NMFS)regarding the display of permits, maintenance of records, filing of reports, etc. 6. The Services have received such other assurances as may be required that the HCP will be implemented. The applicant must ensure that the HCP will be carried out as specified. Since compliance with the HCP is a condition of the permit. The authority of the permit is a primary instrument for ensuring that the HCP will be implemented. When developed, Implementing Agreements also provide assurances that the HCP will be properly implemented. Where a local government agency is the applicant,the Agreement should detail the manner in which local agencies will exercise their existing authorities to effect land or water use as set forth in the HCP. Under an HCP, government entities continue to exercise their duly constituted planning, zoning, and permitting powers. However, actions that modify the agreements upon which the permit is based(e.g., rezoning an area contrary to land uses specified in the HCP) could invalidate the permit. In addition, failure to abide by the terms of the HCP and Implementing Agreement(if required) is likely to result in suspension or revocation of the permit. Some HCPs may involve interests other than the applicant or permittee. In these cases, the applicant must have specific authority over the other parties affected by the HCP and be willing to exercise that authority, or must secure commitments from them that the terms of the HCP will be upheld. In the latter case, agreements between the FWS or NMFS and the 7-5 n other groups, or legally binding contracts between the applicant and such individuals or interests, may be necessary to bind all parties to the terms of the HCP. Any Implementing Agreement submitted in support of an HCP should be consistent with the discussion in Chapter 3, Section B.8, and, where applicable,with the Implementing Agreement "template" in Appendix 4. n 7-6 CHAPTER 8 -DEFINITIONS Candidate species - Under FWS's ESA regulations, "...those species for which the Service has on file sufficient information on biological vulnerability and threat(s)to support proposals to the list them as endangered or threatened species. Proposal rules have not yet been issued because this action is precluded..." (See Federal Register, Volume 61,No. 49, page 7598.) For those species under the jurisdiction of NMFS, candidate species means a species for which concerns remain regarding their status, but for which more information is needed before they can be proposed for listing. Categorical exclusion-Under NEPA regulations, a category of actions that does not individually or cumulatively have a significant effect on the human environment and have been found to have no such effect in procedures adopted by a Federal agency pursuant to NEPA. (40 CFR 1508.4) Complete application package - Section 10 permit application package presented by the permit applicant to the Field Office or Regional Office for processing. It contains an application form, fee (if required), HCP, EA or EIS. In order to begin processing,the package must be accompanied by a certification by the Field Office that it has reviewed the application documents and finds them to be statutorily complete. �-. Conservation plan- Under section 10(a)(2)(A) of the ESA, a planning document that is a mandatory component of an incidental take permit application, also known as a Habitat Conservation Plan or HCP. Conservation plan area- Lands and other areas encompassed by specific boundaries which are affected by the conservation plan and incidental take permit. "Covered species" - Unlisted species that have been adequately addressed in an HCP as though they were listed, and are therefore included on the permit or, alternately, for which assurances are provided to the permittee that such species will be added to the permit if listed under certain circumstances. "Covered species" are also subject to the assurances of the "No Surprises" policy. Cumulative impact or effect-Under NEPA regulations,the incremental environmental impact or effect of the action together with impacts of past,present, and reasonably foreseeable future actions, regardless of what agency or person undertakes such other actions. (40 CFR 1508.7) Under ESA section 7 regulations, the effects of future state or private activities not involving Federal activities,that are reasonably certain to occur within the action area of the Federal action subject to consultation (50 CFR 402.02). n 8-1 Delist- To remove from the Federal list of endangered and threatened species (50 CFR 17.11 and 17.12) because such species no longer meets any of the five listing factors provided under section 4(a)(1) of the ESA and under which the species was originally listed (i.e., because the species has become extinct or is recovered). Development or land use area- Those portions of the conservation plan area that are proposed for development or land use or are anticipated to be developed or utilized. Downlist- To reclassify an endangered species to a threatened species based on alleviation of any of the five listing factors provided under section 4(a)(1) of the ESA. Effect or impact- Under NEPA regulations, a direct result of an action that occurs at the same time and place; or an indirect result of an action which occurs later in time or in a different place and is reasonably foreseeable; or the cumulative results from the incremental impact of the action when added to other past,present and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions (40 CFR 1508.8). Under ESA section 7 regulations, "effects of the action" means "the direct and indirect effects of an action on the species or critical habitat,together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline (50 CFR 402.02). Endangered species - "...any species [including subspecies or qualifying distinct population segment] which is in danger of extinction throughout all or a significant portion of its range." [Section 3(6) of ESA] Endangered Species Act of 1973, as amended- 16 U.S.C. 1513-1543; Federal legislation that provides means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, and provides a program for the conservation of such endangered and threatened species. Environmental Action Memorandum (EAM) -A FWS document prepared to explain the Service's reasoning in finalizing an action that is categorically excluded form NEPA; decisions based on EAs for which a notice is not published in the Federal Register; emergency actions under CEQ's NEPA regulations (40 CFR 1506.11); EAs which conclude that an EIS is necessary (since no FONSI is prepared in such cases); and any decision where additional documentation of the Service's decision is desirable (Director's Order No. 11). Environmental Assessment(EA) -A concise public document,prepared in compliance with NEPA,that briefly discusses the purpose and need for an action, alternatives to such action, and provides sufficient evidence and analysis of impacts to determine whether to prepare an Environmental Impact Statement or Finding of No Significant Impact(40 CFR 1508.9). 8-2 Environmental impact statement(EIS) -A detailed written statement required by section 102(2)(C) of NEPA containing, among other things, an analyses of environmental impacts of a proposed action and alternative considered, adverse effects of the project that cannot be avoided, alternative courses of action, short-term uses of the environment versus the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitment of resources (40 CFR 1508.11 and 40 CFR 1502). Finding of no significant impact(FONSI) -A document prepared in compliance with NEPA, supported by an EA, that briefly presents why a Federal action will not have a significant effect on the human environment and for which an EIS,therefore,will not be prepared(40 CFR 1508.13). Formal permit application phase - The phase of the section 10 process that begins when the Regional Office receives a "complete application package" and ends when a decision on permit issuance is finalized. Habitat- The location where a particular taxon of plant or animal lives and its surroundings, both living and non-living;the term includes the presence of a group of particular environmental conditions surrounding an organism including air,water, soil, mineral elements, moisture, temperature, and topography. Habitat conservation plan(HCP) - See "conservation plan." "Harm" -Defined in regulations implementing the ESA promulgated by the Department of the Interior as an act "which actually kills or injures" listed wildlife; harm may include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." (50 CFR 17.3) NMFS has not defined "harm" by regulation. "Harass" -Defined in regulations implementing the ESA promulgated by the Department of the Interior as "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, and sheltering." (50 CFR 17.3) NMFS has not defined "harass" by regulation. Implementing Agreement-An agreement that legally binds the permittee to the requirements and responsibilities of a conservation plan and section 10 permit. It may assign the responsibility for planning, approving, and implementing the mitigation measures under the HCP. Incidental take - Take of any federally listed wildlife species that is incidental to, but not the purpose of, otherwise lawful activities (see definition for "take") [ESA section 10(a)(1)(B)]. 8-3 Incidental take permit-A permit that exempts a permittee from the take prohibition of section 9 of the ESA issued by the FWS or NMFS pursuant to section 10(a)(1)(B) of the ESA. In this handbook, also referred to as a section 10(a)(l)(B) or section 10 permit. Listed species - Species, including subspecies and distinct vertebrate populations, of fish, wildlife, or plants listed as either endangered or threatened under section 4 of the ESA. Mitigation- Under NEPA regulations, to moderate, reduce or alleviate the impacts of a proposed activity, including: a) avoiding the impact by not taking a certain action or parts of an action; b)minimizing impacts by limiting the degree or magnitude of the action; c) rectifying the impact by repairing, rehabilitating or restoring the affected environment; d) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; e)compensating for the impact by replacing or providing substitute resources or environments (40 CFR 1508.20). National Environmental Policy Act(NEPA) -Federal legislation establishing national policy that environmental impacts will be evaluated as an integral part of any major Federal action. Requires the preparation of an EIS for all major Federal actions significantly affecting the quality of the human environment(42 U.S.C. 4321-4327). Person- "...an individual, corporation,partnership, trust association, or any other private entity; or any officer, employee, agent, department or instrumentality of the Federal government, of any State,municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States" [Section 3(12) of the ESA]. Plan area- See "conservation plan area." HCP development phase - The period in the section 10 process during which the applicant works with the FWS or NMFS Field Office to develop the HCP and associated documents. This phase ends when the Field Office forwards a "complete application package" to the Regional Office. Proposed action -Under NEPA regulations, a plan that has a goal which contains sufficient details about the intended actions to be taken or that will result,to allow alternatives to be developed and its environmental impacts to be analyzed (40 CFR 1508.23). Proposed species -A species for which a proposed rule to add the species to the Federal list of threatened and endangered species has been published in the Federal Register. Record of Decision - Under NEPA regulations, a concise public record of decision prepared by the Federal agency, pursuant to NEPA, that contains a statement of the decision, identification and discussion of all factors used by the agency in making its decision, 8-4 � � identification of all alternatives considered, identification of the environmentally preferred alternative, a statement as to whether all practical means to avoid or minimize environmental harm from the alternative selected have been adopted (and if not,why they were not), and a summary of monitoring and enforcement measures where applicable for any mitigation (40 CFR 1505.2). Section 7 - The section of the ESA which describes the responsibilities of Federal agencies in conserving threatened and endangered species. Section 7(a)(1) requires all Federal agencies "in consultation with and with the assistance of the Secretary [to] utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species." Section 7(a)(2) requires Federal agencies to "ensure that any action authorized, funded, or carried out by such agency...is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of..." designated critical habitat. Section 9 - The section of the ESA dealing with prohibited acts, including the "take" of any listed species without specific authorization of the Fish and Wildlife Service or the National Marine Fisheries Service for species under the jurisdiction of each agency. Section 10 - The section of the ESA dealing with exceptions to the prohibitions of section 9 of the ESA. Section 10(a)(1)(A) - That portion of section 10 of the ESA that allows for permits for the taking of threatened or endangered species for scientific purposes or for purposes of enhancement of propagation or survival. Section 10(a)(1)(B) - That portion of section 10 of the ESA that allows for permits for incidental taking of threatened or endangered species. Set of Findings -FWS document(also used by NMFS)that evaluates, for the administrative record, a section 10(a)(1)(B)permit application in the context of permit issuance criteria found at section 10(a)(2)(B) of the ESA and 50 CFR Part 17. Species - "...any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature" [Section 3(15)of the ESA]. Steering committee - Group or panel of individuals representing affected interests or stakeholders in a conservation planning program, the private sector, and the interested public, which may be formed by the applicant to guide development of the HCP, recommend appropriate development, land use, and mitigation strategies, and to communicate progress to their larger constituencies. FWS and NMFS representatives may participate to provide information on procedures, statutory requirements, and other technical information. 8-5 Take - Under section 3(18) of the ESA, "...to harass, harm, pursue, hunt, shoot,wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" with respect to federally listed endangered species of wildlife. Federal regulations provide the same taking prohibitions for threatened wildlife species [50 CFR 17.31(a)]. Threatened species - "...any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range" [Section 3(19) of the ESA]. 8-6 Federal Register / Vol. 50, No. I; / Monday, September 30, 1985 / Rules and Regulations 39681 P".4%, DEPARTMENT OF THE INTERIOR Fish and Wildlife Service "Th 60 CFR Parts 13 and 17 Endangered and Threatened Wildlife and PiaMs;Prohibldana and Permits AGENCY:Fish and Wildlife Service. Interior. ACTIOrk Final rule. SMEARY:This Fish and Wildlife Service(Service)revises its regulations to implement the incidental take permit and other provisions of the 1982 amendments to the Endangered Species Act(EAS)of 1073.The final rule is not significantly different from the proposed rule.The final rule(1)provides,under limited cirumstances.for permits to take endangered and threatened species incidental-to,and not the purpose of, otherwise lawful activities,and(2)adds a prohibition against removing and reducing to possession endangered and threatened plants from areas under Federal jurisdiction.An applicant for an incidental taking permit must submit a conservation plan that specifies:(2)The impacts that will likely result from such taking:(2)what steps the applicant will take to minimize and mitigate those impacts;(3)what other alternatives were analyzed that would not result in the takings;and(4)why those SIM Federal Register / Vol. 50, No. 139 / Monday, September 30. 1985 / Rules and Regulations alternatives were not adopted.To issue quotation from the Conference Report associated with residential and the permit,the Service must find that the on the 1982 amendments to the ESA. commerical development on San Bruno ' taking will be incidental,that the This material was included in theesotice Mountain in the San Francisco applicant will minimize and mitigate the of proposed rulemaking because it - - metropolitan area The legislative impact of the taking.that the applicant illuminates in detail Congress'intentin history of the 1982 incidental take will ensure that there will be adequate enacting the incidental take permit permit amendment states that the San funding for the conservation plan,and provisions.Unfortunately,and Bruno Mountain plan served as the that appropriate measures will be taken inadvertently,only the first paragraph of model for the amendments to section by the permittee to successfully conduct the quotation was properly typeset to 10(a)of the ESA.H.R.Rep.No.835,97th the activities authorized by the permit show that it was a quotation,creating Cong..2nd Sess.31(1982)(hereafter EFFECTIVE DATE October 30,1985. among many commenters the impression "Conf.Rep.at_'").Several FON FURTHER INFORMATION CONTACT: that the test of the material was drafted commenters asserted,however,that the Mr.Larry LaRochelle,Staff Biologist by the Service.In fact.all of the material San Bruno plan is uncommonly complex U.S.Fish and Wildlife Service,Federal from the bottom of the third column of and controversial and is therefore not a Wildlife Permit Office.1000 N.Glebe 48 FR 31417 through the top of the fust proper model for the Service's Road.Room 811,Arlington.Virginia column of 48 FR 31419 is a quotation regulations.These commenters cited the 22201(703/235-1903). from the Conference Report and difficulty of extrapolating from the San SUPPLEMENTARY NTAtsv IMFottlMAT1O1iC therefore represents Congress'detailed Bruno experience to other situations and views on incidental take permits.The activities. I.Background Service apologizes for the Congress,not the Service,modeled On July 8.1983(48 FR 31417),the misunderstandings that were created by the section 10(a)incidental take permit Service published proposed regulations this typographical error. amendment on the San Bruno Mountain to implement certain aspects of the 1982 1.Joint Promulgation of These project.The courts that have reviewed amendments to the Endangered Species Regulations by the U.S.Fish and and upheld the San Bruno incidental Act of 1973(ESA).The first,an Wildlife Service and the National take permit agree that Congress amendment to section 10(a)of the ESA, Marine Fisheries Service(NMFS) intended that project to serve as a 16 U.S.C.1539(a),allows permits for model.See,e.g.,Mends of Endangered takings of endangered species incidental Four commenters urged the Service Species v.Jantzen,78.F.2d 078(9th Cir. and NMPS to coordinate their efforts so to.but not the purpose of,otherwise 1985),The Service does,of course,have lawful activities.The second,addition of as to develop similar or identical the discretion and the responsibility to re. urrements if each chose to develop p° a new section 9(a)(2)(B)of the ESA,16 ts own regulations,to have NMFS p implement the requirements of section U.S.C.1538(a)(2)(B) prohibits removal ado t the Service's ations,or to 10(a)in regulations that are not only and reduction to possession of protected promulgate'Dint consistent with section 10(a),but which plants from areas under Federal 1 regulations.Certain species of fish,whales.seals.sea turtles, are also flexible and versatile.In Jurisdiction.The July 8,1983,notice and other marine species listed as drafting the regulations,the Service hese'• discussed the need,purpose and details endangered or threatened under the naturally drawn upon its experience in of the Service's proposal and invited ESA an under the jurisdiction of NMFS processing and granting the San Bruno comments from interested parties until (50 CFR Parts 222 and 227).All of the permit The Service believes that the August 8,19s3. ESA-listed marine mammal are subject final regulations,which are largely The Service received comments from to the Marine Mammal Protection Act identical to the express language of 13 parties:1 port authority,2 Federal section 10(a).will accommodate projects agencies,2 electric utility organizations. (MMPA),however,which prohfbib, that differ substantially from the San • 3 conservation organizations,and 3 oil except for scientificer research,any Bruno project in size;planned duration; takingor gas corporations.Some comments species of endangered areothreatened the number of different local.State,and species because they considered Federal agencies that have jurisdiction were brie while others were lengthy. "'depleted"within the meaning of the 8 substantive,and analytical.All MMPA,16 U.S.C.1371(a)(3)(B).ESA over some aspect of the project;or the generally supported the Service's incidental take permits therefore may he number of hated and unlisted species proposed cola though various available for only aa few of the species that may be involved.The promise clarifications were sought and alternate under the jurfsdcition of NMFS. offered by the incidental take procedures and regulatory language The Service agrees that coordination amendment--a means of reconciling were offered Two commenter with NMFS on incidental take permit conflicts which would otherwise exist recommended that the Service's final issues is important.The Service has between development end endangered rule be identical to the proposed rule. Each comment has been considered in consulted with NMFS throughout the species conservation—is available to a preparing this final rule.In addi • Federal Register / Vol. 50. No. 189 / Monday. September 30. 1985 / Rules and Regulations 39683 arbitrary or inordinate requirements and subsequently listed pursuant to the Act.no respect to incidental take permits by or,--N protect listed species from exploitation. further mitigation requirements should be requiring a non-jeopardy finding(or a The Service recognizes that the tmpoaed if theconservation plan addressed jeopardy finding with reasonable and the conservation e species an tion of the its incidental take permit provisions will habitat as if the species were listed pursuant.---pruder_alternatives that are have numerous and diverse to the Act. implemented by the Federal agency or applications.and that the administration �� Rep.at 30 In other words,failure applicant)as a precondition to issuance of the provisions will require [ lof a permit. • considerable ingenuity and flexibility. to consider an unlisted species in s+ Other commenters discussed the The wide-ranging experience of the conservation plan exposes the permit interrelationship of section 10(a)and Service in managing fish,wildlife,and applicant to the risk that if the species is section 7(b)(4),which refers to subsequently listed,the activities plant resources has demonstrated, incidental taking identified in section however,that it is neither possible nor covered by the permit might have to be 7(a)(2)consultations that have resulted practical to provide for every situation halted pending ametldment of the in"no jeopardy"opinions,including the that might occur through the incidental take permit to incorporate the issue of whether section 7(b)f 4) newly listed species. promulgation of detailed regulations empowers the Secretary to recommend The final regulations therefore do not such as the commenters suggested. substantial alternatives to a proposed Broader regulations will ensure that the impose a requirement cant that unlisted project where a no jeopardy opinion has Service is able to handle all incidental specter,whether candidate,proposed'or beenpreparedfor the project as take situations that arise.The Servitk not be considerd in a conservation plan, originally lnned.Section 7(b)(4)was The regulatins do,however,refer has therefore chosen to promulgate the added to the Act and section 7(o)was expilei to a option of considering final regulations in relatively broad unlisted' amended: terms consistent with the statutory species in order to encourage tmsand Congressional tntory proponents of conservation plans to do To resolve the situation in which a Federal language �r so. agency or a permit or license applicant has It should be noted that the Service been advised that the proposed action will processed the complex San Bruno 5.Interaction of Sections.7,9,and 10 of not violate section 7(sl(2)of the Act but the Mountain incidental take permit the Endangered Species Act proposed action will result in the taking of application end negotiated thesome species Incidental to that action--a un lemenN agreement among the Numerous commenters raised issues clear violation of section 9 of the Act which p e con)incidental the interaction of the section prohibits any taking of a species.The Federal involved parties without the benefit of 10(a)incidental take permit provision agency or permit or license applicant is then incidental taking regulations and solely with the requirement in section 7(a)(2) confronted with the dilemma of having a on the basis of the language of section for Federal interagency consultation on biological opinion which permits the activity 10(a).as amended. actions that may affect listed species to proceed but is,nevertheless.proscribed 4.Consideration of Unlisted Species in and the prohibition in section 9 on from incidentally taking any species even Conservation Plans takings of listed species.These though the incidental taking was comments were engendered in large part contemplated in the biological opinion and Several commenters addressed the determined not to be violation of section issue of whether a conservation plan by the fact that section 7 was also 7(a)l2/ submitted in support of an incidental affectedcby the 1962 amendments to the take permit application may(or should Act. [H.R.Rep.No.587,97th Cong.,2nd Sess. taeper depending upon commenter) A few commenters asserted that 26(1982)).Section 7(b)(4)provides that r must,the depending sthe proposed because incidental take permit if section 7(a)(2)consultation results in a activity consider unmpacisted as of heell as listed d applicants are private parties.no section "no jeopardy"opinion,yet the proposed apecies While the proposed egutation 7 consultation will be required with action would nevertheless involve was silent on th eroto preamble respect to an incidental take permit and incidental taking of a listed species but quoted pertinent of the associated conservation plan.This is at a level low enough so that it would Conference portionsrtlanguageofteclearly wrong,for any action undertaken not violate section 7(a)(2).the Secretary Conference erence Report.ongrehat al gthat pursuant to such a permit would be an must provide a written statement that:' treatment of unlisted species in action authorized by a Federal agency, (i)Specifies the impact of such incidental conservation plans be voluntary, the U.S.Fish and Wildlife Service,and taking on the species, It also made clear however,that the permit decision would therefore be (ii)Specifies those reasonable and prudent incidental take permita .applicants will subject to the section 7(a)(2) measures that the Secretary considers incidental in many, not most,instances consultation requirement.Moreover, necessary or appropriate to minimize such benfrom consideration of unlisted species: Congress expressly linked incidental impacts,and Pe take permits with the consultation (iii)Sets forth the terms and conditions Although the conservation plan is keyed to requirement by including one of the (including,but not limited to,reporting the permit provisions of the Act,which only section 7(a)(2)standards as a necessary requirements)that must be complied with to apply to listed species,the Committeeimplement the measures specified under(Hj. intends that Conservation plans may address criterion for issuing an incidental take ry both listed and unlisted species. permit.[Conf.Rep.at 29-3G%H.R.Rep. Section 7(o)(2)further provides that The Committee intends that the Secretary No.587,97th Cong.,2nd Sess.31(1962)]. any incidental taking in compliance with may utilize this provision to approve The section 10(a)(2)(B)(iv)criterion, the terms and conditions set forth in conservation plans which provide long-term whether"the taking will. . . section 7(b)(4)((ii)shall not be a taking commitments regarding the conservation of appreciably reduce the likelihood of the prohibited by the Act or its listed as well as unlisted species and long- survival and recovery of the species in implementing regulations. term assurances to the proponent of the the wild,"is identical to the Service's One commenter argued that the conservation plan that the terms of the plan regulatory definition of the section section 7(b)(4)"reasonable and prudent will be adhered to and that nether matisation requirements will only be imposed in 7(a)(2)"jeopardize the continued measures"specified to minimize the accordance with the terms of the plan.In the existence of"standard(See 50 CFR impact of the incidental taking can event that an unlisted species addressed in 402.03).Thus,section 10(a)reinforces include substantial alternatives to the an approved conservation plan is the consultation requirement with proposed action and that the Service 39684 Federal Register / Vol. 50, No. 189 / Monday, September 30, 1985 / Rules and Regulations would therefore be obliged to S.Interaction With Other Statutes required by changed or unforeseen recommend alternatives to a proposed circumstances.The Service agrees thp''\ Several commenters expressed project that would cause incidental concern that the Service had exceeded such a provision is needed.As statec takes even though it meets the sectionits statutory authority under the ESA in the Conference Report: 7(a)(2)standard.The Service notes that referring to the Fish and Wildlife Act of circumstances and information may if consultation demonstrates that a 1950 and the Fish and Wildlife change over time and. . .the original plan proposed action is likely to jeopardize Coordination Act in the preamble to the might need to be revised.To address this the continued existence of a listed proposed rule(48 FR 31418).As situation,the committee expects that any species,or result in the destruction or discussed previously in this notice,that plan approved for a long-term permit will adverse modification of critical habitat, language is in fact quoted from the contain a procedure by which the parties will g q deal with unforseen circumstances. the Secretary must,under section Conference Report on the 1982 7(b)(3)(A),suggest"reasonable and amendments to the Endangered Species [Conf.Rep.at 311.The Service believes prudent alternatives"that would not Act,though it was inadvertently typeset that,while such provisions may be of violate section 7(a)(2).Section 7(b)(3)(A) as if it were not a quotation.The most value for long-term permits, Alternatives may involve substantial essential observation made by the circumstances requiring modification of changes in the routing and design of a Conference Committee is extremely a conservation plan could arise even project so long as they can be useful:Individual species should not be during the life of a permit with a implemented in a manner consistent viewed in isolation.Neither should the relatively short term,Incorporation of with the intended purpose of the section 10(a)requirements be viewed in modification procedures into a proposed action,Section 7(b)(4) isolation from the other statutory and conservation plan at the outset should reasonable and prudent measures, on regulatory requirements that may apply ensure both that the affected species the other hand,must be limited to minor to the proposed project.Section 10(a) will be conserved regardless of changed design changes that would not does not itself expressly require conditions and that the applicant's substantially alter the project as compliance with such laws as the .activities are not unduly interrupted proposed.The Service therefore National Environmental Policy Act,the when the new conditions take effect. disagrees with the commenter. Clean Water Act,or the Fish and Sections 17.22(b)(1)(iii)(B)and Section 10(a)(2)(A)(ii)does require Wildlife Coordination Act,but it 17.32(b)(1)(iii)(B)therefore require provides an excellent opportunity for a conservation plans to include specific that each conservation plan submitted in support of an incidental take permit project proponent to prepare and measures for addressing unforeseen application must tideidentifyand analyze implement a comprehensive,integrated circumstances and(j417.22(b)(2)(iii)and alternatives to the incidntal taking and ce of for the future all of the lan that addresses forvarie present and thes17.3e measuress a precomake nditexiion to permit discuss why they are not being utilized. requirements that apply to the project. issuance. This provision does not,however. In the words of the Conference 9.Other Elements of Conservation Pip', authorize the Service to impose one of Committee,section io(a)will these alternatives on an applicant for an ••encouraga creative partnerships Several parties commented that th incidental take permit.Rather,without between public and private sectors and statement in section 10(a)(2)(A)(iv)of the concurrence of the permit applicant, among governmental agencies in the the Act that a conservation plan must the Service's only recourse upon interest of species and habitat include"such other measures that the receiving an inadequate plan is to deny conservation."[Conf.Rep.at 30). Secretary may require"obliges the the permit application.Such a denial Service to include in these regulations a must be in accordance with*13.21(d) 7.Monitoring Implementation of full list of the measures the Service may and will detail the reasons for the Conservation Plans so require.Other commenters asked that denial.Parties so denied may Appeal the One commenter argued that both the examples of such measures be included Service's decision in accordance with applicant and the Service should in the regulations,while still others f 13.32,addressing the Service's reasons monitor the implementation of a asserted that this provision must be therefore and may provide new conservation plan in order to ensure that deleted from the regulations.Still information or justification why the its requirements and those of section another commenter suggested that this action in question should not have been 10(a)are met.Such monitoring can also provision will be workable only if the taken. serve to identify areas in which Service is available for pre-application One commenter urged the Service to modification of a conservation plan may consultation and advice as to measures employ not only the jeopardy standard, be necessary,particularly with that might be required.The Service but also the adverse modification of incidental take permits of long duration. agrees with he latter commenter while critical habitat standard of section The Service agrees.Sections respectfully disagreeing with the other 17.22(b)(1)(iii)(B),1722(b)(3), commenters. 7(a)(2)as a criterion for determining whether to grant an incidental take 17.32(b)(1)(iii)(B),and 17.32(b)(3)have As noted previously in this notice,the therefore been revised to require that Service has declined to promulgate permit.The Service has not accepted this comment because it was not conservation plans specify the exhaustive,"cookbook"regulations included by Congress as one of the monitoring measures to be used and to detailing every possible element that permit issuance criteria in section authorize imposition of necessary could be required in a conservation monitoring as a condition of each plan.The variety of projects that might 10(a)(2)(B).The Service agrees,however, permit, be the subject of a conservation plan is that since all incidental take permit , wide,and features appropriate for some applications will be subject to section Modification of Conservation Plans conservation plans will be unworkable 7(a)(2)consultation,they would not be The same commenter noted that the for others.It is unrealistic to think the approved if they resulted in the proposed regulations contained no Service could develop a list of destruction or adverse modification of express provisions pertaining to conservation plan elements applicable the critical habitat of a listed species. modifications in conservation plans to all potential incidental take permit-. Federal Register / Vol. 50, No. 189 / Monday, September 30, 1985 / Rules and Regulations 39685 AMP Congress,however,modeled section plan would not be appropriate.In order and its conservation plan covers over 4 10(a),at least generally,after the San to make clear that permit conditions 3000 acres,including the great majority Bruno plan and was well aware that the relating to conservation of the affected of the habitats of the species.Other Service and the San Bruno permit species will be imposed where incidental take permit applications may. applicants engaged in extensive pm- necessary,the phrase"and the however.involve considerably shorter application discussions extending well conservation plan"has been added to terms and involve activities that would over a year.The Service believes a final if§17.22(b)(3)and 17.32(b)(3). affect smaller areas and only portions of sensible and practical reading of section a species'range.The Service believes 10(a)(2)(A)(iv)is that the unique and.in 12 Duration of Permits that Congress did not intend to exclude most cases,fairly complex nature of an Congress clearly intended to provide projects from the incidental take incidental take permit will require for long-term incidental take permits provisions of section 10(a)merely discussions between a potential where needed.(Conf.Rep at 311.One because the projects were of mom applicant and the Service.Through this commenter was concerned,however. limited duration or geographical scope. process,the Service will identify that the proposed regulations improperly Final if 17.22(b)(2)and 17.32(b)(2)have specific measures,in addition to those implied that the only issue involved in been revised to make this explicit.In listed in section 10(a)(2)(A)(i)through deciding on a request for a long-term particular,the Director will consider (iii),that are necessary and appropriate permit is whether the applicant needs whether the mitigation measures in the for the proposes of the conservation the assurance of a long-term permit in conservation plan and the funding for plan. order to obtain financing.The Service implementing the plan are 10.Public Notice of and Public Comment did not intend to imply that financing of commensurate with the duration of the on Incidental Take Permit Applications the project was the only issue involved project and its geographic scope, in setting the duration of the permit. including the amount of listed species Section 10(a)(2)(B)of the ESA The Conference Report states: habitat that is involved and the degree mandates en opportunity for public Significant development projects often take to which listed species and their comment prior to any decision on an many years to complete and permit habitats are affected.Mitigation incidental take permit application. applicants may need long-term permits.In throughout the entire range of a listed Several commenters expressed concern this situation.and in order to provide species probably would not be required that the proposed regulations did not sufficient incentives for the private sector to for a proposed project that would affect adequately implement this requirement. participate in the development of such long- only a small portion of that range and They noted that section 10(c)also term conservation plans.plans which may have a minor impact on the setae as a requires public notice and comment for involve the expenditure of hundreds of p p any section 10 endangered species thousands if not millions of dollars.adequate whole.That a project might be assurances must be made to the financial and completed within a short time and affect permit application. development communities that a section 10(a) only a portion of a species'habitat The Service agrees that the ESA permit can be made available for the life of would not.however,relieve the Director requires notice and an opportunity for the project. of his duty under sections 7(a)(2)and 10 comment for these permit applications The Secretary is vested with broad (a)(2)(H)(iv)of the Act and and has revised the introductory discretion in carrying out the conservation planprovision to determine thea appropriate i 17.2.Z(b)(8)tiv)and 17..32(b)(2)(iv)of paragraphs rdig l 17.22.17.23 andpt 4 theregulations to ensure that no 17.3«(b)accordingly. lengthof any section 10(a)permit neared pursuant to this provision in light of all of the jeopardy to the species would ensue 11.Permit Conditions facts and circumstances of each individual from issuance of the permit. One commenter argued that the case.Permits of 30 or more years duration may be appropriate in order to provide 14.Objection to Permit issuance Service is under a duty,in imposing adequate assurances to the private sector to reporting requirements as a permit commit to long-term funding for conservation Section 17.22 contains explicit condition.to rely upon existing reporting activities or long-term commitments to provisions for objecting to the issuance requirements to the maximum extent restrictions on the use of land.Itis of an an endangered species permit and practicable.This commenter relied upon recognized that in issuing such permits,the for notification to objectors of the legislative history indicating that Secretary will by necessity,consider the impending issuance of that permit.One reporting requirements imposed under possible positive and negative effects commenter suggested that$17.32 be section 7(11)(4),to allow monitoring of associated with permits of such duration. revised to include en objection The Secretary.in determining whether to provision.The Service has not act a ted the impact of incidental taking ideated issue a long-term permit to carry out aP in section 7(a)(2)consultation,should be conservation plan should consider the extent this suggestion because threatened incorporated into existing reporting to which the conservation plan is likely to species are less vulnerable than are requirements where possible.[H.R.Rep. enhance the habitat of the listed species or endangered species to potential adverse No.567.97th Cong..2nd Sess.26-27 increase the long-term survivability of the impacts from permitted activities. (1982)1.The Service agrees that this species or its ecosystem. Advance notice of permit issuance is Congressional directive is equally (Conf.Rep.at 311 Final (i 17.22(b)(4)and thus not necessary. applicable to reporting requirements 17.32(b)(4)have been revised to be 15.Appeals established for incidental take permits. consistent with the Conference Report. as reflected in ft 17.22(b)(3)and 13.Permits for Activities of Short Several commenters noted the need 17.32(b)(3)of the final rule. for provisions for appealing the Another party stated that the Duration and/or Limited Scope suspension or revocation of a permit or reference in proposed fill 1722(b)(3)and A related issue concerns permits for the terms or conditions of a permit. 17.32(b)(3)to"terms and conditions... takings of listed species incidental to There should be considerable contact necessary to carry out the purposes of activities that will be relatively short in and discussion between an applicant the permit"might convey the impression duration and/or that will affect a limited and the Service both prior to and during that terms and conditions designed to area that comprises only a small portion the Service's review of an application ensure compliance with the species of a listed species'entire range.The for an incidental take permit.Should a conservation goal of the conservation term of the San Bruno permit is 30 yeafa permit nonetheless be issued containing 39686 Federal Register / Vol. 50, No. 189 / Monday, September 30, 1985 / Rules and Regulations terms or conditions unacceptable to the 4.Explanation of"Remove and Reduce III.Miscellaneous permittee.or should.a permit be to Possession" Section 13.12(b)is amended by addjpa\ suspended or revoked during its term, 11,hile no commenter raised the issue, the permit for incidental taking now the permittee may appeal the action the Servicebelieves that an explanation available at 17.22(b)(1]. under the provisions of 50 CFR 13.32. P of its interpretation of the phrase Sections 17.22(c)and 17.32(c)are B.Plant Regulations "remove and reduce to possession"will redesignated as 17.22(a)(3)and 1.Exemption for Certain Official Duties be beneficial.Based upon the legislative 17.32(a)(3).respectively..and altered history of the 1982 amendments,the slightly to make them consistent with An exemption from the§17.61(c)(1) Service has concluded that section each other and to make clear that each prohibition on removal and reduction to 9(a)(2)(B)was intended to proscribe the permit issued pursuant to these sections possession of endangered plants from removal of an endangered plant when shall contain a condition requiring areas under Federal jurisdiction has combined with a taking of possession. reporting of escaped wildlife covered by been added at f 17.61(c)(2)to allow Accordingly,a person who removes an the permit. certain designated officials to care for. endangered plant from its location on an New 50 CFR 17.62(a)(3)(iii)and dispose of,or salvage specimens area under Federal jurisdiction and 17.72(a)(3)(iii)are added in compliance without a permit when acting in the holds it as his/her own would violate with the Paperwork Reduction Act,44 course of their official duties, section 9 of the ESA.Examples of this U.S.C.3507. Exemptions from the f 17.61(c)(1) activity would be plant collectors, Required Determinations prohibition have been added at persons seeking a transplant to their §§17.81(c)(3)and 17.71(b),which allow own property.and those gathering seeds The Service has determined that these qualified employees of State or cuttings.The destruction of a plant on final regulations are categorically conservation agencies,party to a an area under Federal jurisdiction excluded for further National Cooperative Agreement with the Service would not,however,be a violation of Environmental Policy Act(NEPA) in accordance with section 6(c)of the section 9 of the ESA,since no taking of requirements.Part 518 of the ESA,to conduct the activities specified possession would have occurred. Departmental Manual,Chapter 6 in that Cooperative Agreement. Removal incident to purposes other Appendix I.section A(3)categorically than taking of possession is likewise not excludes the issuance of regulatory 2.Describing Location of Removal and proscribed.An example of behavior not procedures when the impacts are limited Reduction to Possession in Permit prohibited would be development to administrative or technological Application effects. activities that physically displace an The Department of the Interior has Existing 1117.62(8)111(iii)and endangered plant.These activities P 17.72(a)(1)(iii)require applicants for would not violate section 9 of the ESA. determined that this is not a major rule permits to conduct otherwiseprohibited under Executive Order 12291,nor does it with A second issue is whether a violation have a significant economic effect on a activities respect to listed plants to of the ESA occurs when a person number of small entities a describe the location from which the receives a plant that has been illegally substantial the number oy small a Flexibility Act plants were or will be taken.The reduce to possession by someone else. Service proposed to revise these Section 9(a)(1)of ESA,which lists The potential applicants are not sections to require further information prohibited actions in regard to identified as small business in the where removal and reduction to endangered fish or wildlife,makes it Regulatory Flexibility Act.The Service possession of a listedplant from an area anticipates that fewer than 10 permit unlawful to possess such fish or wildlife applications will be received annually. under Federal jurisdiction would be after an illegal taking or importation. The Dations w Determination of Effects on this involved.Comments received on this This prohibition applies whether or not TheproDetesed rule ti avo Effects from the aspect of the proposed regulations the fish or wildlife possessed are being individual identified under the section indicate that separate treatment of the transported in interstate commerce or latter information requirement is were received in intrastate commerce. "FOR FURTHER INFORMATION CONTACT." needed.The final regulations therefore Section 9(a)(2)of the ESA,which sets Information Collection include new 1117.62(a)(1)(iv)and forth prohibited acts with regard to The information collection 17.72(a)(1)(iv)that require separate listed plants,does not prohibit their information with respect to removal and possession after an illegal taking or requirements contained in this Part 17 reduction from an area under Federal importation.It does prohibit their receipt have been approved by the Office of jurisdiction. or shipment in interstate or foreign Management and Budget under 44 U.S.C. 507 and3.Removal and Reduction to Possession commerce and in the course of a 1018-0022.siged clearance number of Seeds and Cultivated Plants commercial activity,but does not cover purely intrastate commercial activities List of Subjects A few commenters observed that the or non-commercial interstate shipment 50 CFR Port 13 proposed regulations did not appear to and receipt.However,the Lacey Act apply to seeds and cultivated plants, amendments of 1981 make it unlawful Administrative practice and which are treated in;;17.62(a)(2)and for any person"to import,export, procedure,Exports,Fish,Imports, 17.72(a)(2).This was an inadvertent transport,sell,receive,acquire,or Penalties,Reporting and recordkeeping omission.Final;f 17.82(a)(2)(v)and purchase any fish or wildlife or plant requirements,Wildlife. 17.72(a)(2)(v)contain the same location taken or possessed in violation of any CFR Part 17 information requirements with respect law,treaty,or regulation of the United to removal and reduction to possession States. . ."16 U.S.C.3372(a)(1).Thus, Endangered and threatened wildlife, of seeds and cultivated plants from an while receiving an unlawfully taken Fish.Marine mammals,Plants area under Federal jurisdiction that are endangered plant may not violate the (agriculture)Regulations promulgation. included in§t 17.62(a)(1)(iv)and ESA.it would violate the Lacey Act,as For the reasons set out in the 17.72(a)(1)(iv)for listed plants. amended. preamble.Subchapter B.Chapter 1 of Federal Register / Vol. 50, No. 189 / Monday, September 30, 1985 / Rules and Regulations 38687 Title 50.Code of Federal Regulations is carrying out of an otherwise lawful be covered by the permit in a manner amended as follows: • activity. which would not cause the death or • removal from the wild of such wildlife: PART 13-GENERAL PERMIT 3,Section 17.22 is revised to read as (iv)if the wildlife sought to be PROCEDURES follows: covered by the permit has already been The authority citation for Part 13 removed from the wild,the country and continues to read as follows: S 17.22 Permits for scientific purpwae, place where such removal occurred:if enhancement of propagation or survival,or the •wildlife sought to be covered by the Authority:15 U.S.C.42:sec.4.Pub.L 97-79. for incadentai taking. permit was born in captivity.the 95 Stat.1074(16 U.S.C.3373.sec.7.Pub.L Upon receipt of a complete country and place where such wildlife 97-78.95 Stat.1076(16 U.S.C.3376):sec.3, application,the Director may issue a was born: Pub.L 65-186.40 Stat.755(16 U.S.C.704); permit authorizing any activity sec.3(h)(3),Pub.L 95-918,92 Stat.3112(16 (v)A complete description and otherwise prohibited by!)17.21,in U.S.C.712):sec.2.54 stat.251,as amended accordance with the issuance criteria of address of the institution or other by sec.9,Pub.L 95-616.92 Stat.3114(16 facility where the wildlife sought to be U.S.C.668a):sec.102.78 Stat.73(19 U.S.C. this section,for scientific purposes,for 1202)."Schedule 1.Part 1SD,Headnote 2(d). enhancing the propagation or survival. covered by the permit will be used. Tariff Schedules of the United States":sec. or for the incidental taking of displayed,or maintatne 9(d).Pub.L 93-205.57 Stat.893(16 U.S.C. endangered wildlife.Such permits may (vt)If the applicant seeks to have lige 1538(d)):sec.8(a)(1),Pub.L.96-159.93 Stat authorize a single transaction,a series wildlife covered by the permit,a 1228(16 U.S.C.1537a);5.0.11911,41 FR of transactions,or a number of activities complete description.including 15683.3 CFR,1978 Comp..p.112:sec.10,Pub. over a specific period of time.(See photographs or diagrams,of the L.93-205.87 Stat.898.as amended by secs.2 facilities to house and/or care for the and 3.Pub.L 94-359.90 Stet.3760:sec.7. 17.32 for permits for threatened wildlife and a resume of the experience Pub.L 96-359,90 Stat.911 and 912:sec.5, species.)Tyre Director shall publish Pub.L.95-632,92 Stat,3760;sea 7,Pub,L.t notice in the Federal Register of each of those person who will be caring for 159.93 Stet.1230(16 U.S.C.1539);sec.11, application for a permit that is made the wildlife; Pub.1.03-205.87 Stat.897.as amended 131 under this section.Each notice shall (vii)A full statement of the reasons sec.6(4),Pub.L.95-832.92 Stat.3781(16 invite the submission from interested why the applicant is justified in U.S.C.1504(b)(2)(Qk sec.13(d),a6 Stat.ens, parties,within 30 days after the date of obtaining a permit including the details amending 85 Stat.480 06 U.S.C.7421-1k Title the notice,of written data.views,or of the activities sought to be authorized 1.sec.112.Pub.Ly the permit; amended by Title U,sea 201(e).Pub.L 96- arguments with respect to the 94 Stat.2241(ie U.S.C.1382:65 Stat.280 application.The 30-day period may be (,iii)If the application is for the 470 (31 U.S.C.483(e)). ) waived by the Director in an emergency purpose of enhancement of propagation. situation where the life or health of an a statement of the applicant's f 13.12 !Amended) endangered animal is threatened and no willingness to participate in a 1.Amend§13.12(b)by removing the reasonable alternative is available to cooperative breeding program and to language at the entry for permits under the applicant.Notice of any such waiver maintain or contribute data to a §17.22 and inserting the following shall be published in the Federal studbook; § 13.12 information requirements on Register within 10 days following (ix)The information collection permit applications. issuance of the permit. requirements contained in this • . (a)(1)Application requirements for paragraph have been approved by the (b)• . . permits for scientific purposes or for the Office of Management and Budget under enhancement of propagation or survival. 44 U.S.C.3507 and assigned Clearance Scientific.enhancement of propagation or Applications for permitsunder this Number 1018-0022.This information is survival.incidental taking for wildlife. paragraph must be submitted to the being collected to provide information Director,U.S..Fish and Wildlife Service, necessary to evaluate permit Federal Wildlife Permit Office,1000 N. applications and make decisions. PART 17-ENDANGERED ANDFederal Road,Room 611,Arlington, according to criteria established in PLANTSENED ENDED] AND Virginia 22201,by the person wishing to various Federal wildlife and plant PLANTS- AMENDED) engage in the activity prohibited by conservation statutes and regulations. Accordingly,under the authority of 16 117.21.Each application must be on the issuance or denial of permits.The U.S.C.1538-39,Part 17.Subchapter B of submitted on an official application obligation to respond is required to Chapter 1.Title 50 of the Code of (Form 3-200)provided by the Service obtain or retain a permit. Federal Regulations,is amended as set and must include as an attachment,all (2)Issuance criteria.Upon receiving forth below: of the following information: an application completed in accordance 1.The authority citation for Part 17 (i)The common and scientific names with paragraph(a)(1)of this section,the continues to read as follows: of the species sought to the covered by Director will decide whether or not a Authority;Pub.L.93-205.87 Stat.884:Pub. the permit,as well as the number,age, permit should be issued.In making this L 94-359;90 Stat.911;Pub.L.95-632.92 Stat. and sex of such species,and the activity decision,the Director shall consider,in 3751;Pub.L 96-156,63 Stat.1225;Pub.L.97- sought to be authorized(such as taking, addition to the general criteria in 304.96 Slat.1411(16 U.S.C.1531.et seq.), exporting,selling in interstate §13.21(b)of this subchapter,the unless otherwise noted. commerce); following factors: g 173 tAntendedl (ii)A statement as to whether,at the (i)Whether the purpose for which the time of application.the wildlife sought permit is required is adequate to justify 2.In§17.3 add,in alphabetical order. to be covered by the permit(A)is still in removing from the wild or otherwise the following definition: the wild,(B)has already been removed changing the status of the wildlife • • • from the wild,or(C)was born in sought to be covered by the permit; "Incidental taking"means any taking captivity; (ii)The probable direct and indirect otherwise prohibited.if such taking is (iii)A resume of the applicant's effect which issuing the permit would incidental to,and not the purpose of,the attempts to obtain the wildlife sought to have on the wild populations of the 39688 Federal Register / Vol. 50, No. 189 / Monday, September 30. 1':5 / Rules and Regulations wildlife sought to be covered by the to be utilized;and(D)such other assurances to the permittee to commit permit - measures that the Director may require funding necessary for the activities (iii)Whether the permit.if issued, as being necessary or appropriate for authorized by the permit,including would in any way.directly or indirectly. purposes of the plan; conservation activities and land use conflict with any known program (iv)The information collection restrictions.In determining the duration intended to enhance the survival requirements contained in this of a permit,the Director shall consider probabilities of the population from paragraph have been approved by the the duration of the planned activities,as which the wildlife sought to be covered Office of Management and Budget under well as the possible positive and by the permit was or would be removed: 44 U.S.C.3507 and assigned Clearance negative effects associated with permits (iv)Whether the purpose for which Number 1018-0022.This information is of the proposed duration on listed the permit is required would be likely to being collected to provide information species.including the extent to which reduce the threat of extinction facing the necessary to evaluate permit the conservation plan will enhance the species of wildlife sought to be covered applications.This information will be habitat of listed species and increase by the permit; used to review permit applications and the long-term survivability of such (v)The opinions or views of scientists make decisions,according to criteria species. or other persons or organizations having established in various Federal wildlife (c)Objection to permit issuance.(1)in e apertise concerning the wildlife or and plant conservation statutes and regard to any notice of a permit other matters germane to the regulations,on the issuance or denial of application published in the Federal application;and permits.The obligation to respond is Register,any interested party that (vi)IA hether the expertise,facilities, required to obtain or retain a permit. objects to the issuance of a permit in or other resources available to the (2)Issuance criteria.Upon receiving whole or in part.may.during the applicant appear adequate to an application completed in accordance comment period specified in the notice. successroth accomplish the objectives with paragraph(b)(1)of this section,the request notification of the final action to stated in the application. Director will decide whether or not a be taken on the application.A separate (3)Permit conditions.In addition to permit should be issued.The Director written request shall be made for each the general conditions set forth in Part shall consider the general criteria in permit application.Such a request shall 13 of this subchapter,every permit §13.21(b)of this subchapter and shall specify the Service's permit application issued under this paragraph shall be issue the permit if he finds that(i)The number and state the reasons why that subject to.he special condition that the taking will be incidental;(ii)the party believes the applicant does not e3cape of living wildlife covered by the applicant will,to the maximum extent meet the issuance criteria contained in permit shall be immediately reported to practicable,minimize and mitigate the j 13.21 and 17.2'of this subchapter or the Service office designated in the impacts of such taking;(iii)the applicant other reasons why the permit should not permit. will ensure that adequate funding for the be issued. (4)Dumt.�on of permits.The duration conservation plan and procedures to rs, (g)If the Service decides to issue a rpermits issued under this paragraph deal with unforeseen circumstances will permit contrary to objections received n shalt be designated on the face of the be provided:(iv)the taking will not t permit. appreciably reduce the likelihood of the pursuant to paragraph(c}(i)of this (b)(1)Application requirements for survival and recovery of the species in section,then the Service shall.at least ;rermits for incidental taking. the wild;(v)the measures,if any. ten days prior to issuance of the permit, Applications for permits under this required under subparagraph make reasonable efforts to contact by paragaph must be submitted to the (b)(1)(iii)(D)of this section will be met; telephone or other expedient means,any Director,U.S.Fish and Wildlife Service, and(vi)he has received such other party who has made a request pursuant Federal Wildlife Permit Office,1000 N. assurances as he may require that the to paragraph(c)(1)of this section and Clebe Road.Roam 811.Arlington. plan will be implemented.In making his inform that party of the issuance of the Virginia,inia 22201,by the person wishing to decision,the Director shall also consider permit However,the Service may engage in the activity prohibited by the anticipated duration and geographic reduce the time period or dispense with §17.21(c).Each application must be scope of the applicant's planned such notice if it determines that time is submitted on an official application activities,including the amount of listed of the essence and that delay in (Form 3-200)provided by the Service species habitat that is involved and the issuance of the permit would:(i)Harm and must include as an attachment all of degree to which listed species end their the specimen or population involved:or the following information: habitats are affected. (it)unduly hinder the actions authorized (i)A complete description of the (3)Permit conditions.In addition to under the permit. activity sought to be authorized: the general conditions set forth in Pert (3)The Service will notify any party (ii)The common and scientific names 13 of this subchapter,every permit filing an objection and request for notice of the species sought to be covered by issued under this paragraph shall under paragraph(c)(1)of this section of the permit,as well as the number,age, contain such terms and conditions as the final action taken on the application, and sex of such species,if known: the Director deems necessary or in writing.If the Service has reduced or (iii)A conservation plan that appropriate to carry out the purposes of dispensed with the notice period specifies:(A)The impact that will likely the permit and the conservation plan referred to in paragraph(c)(2)of this result from such taking:(B)what steps including,but not limited to,monitoring section,it will include its reasons the applicant will take to monitor, and reporting requirements deemed therefore in such written notice. minimize,and mitigate such impacts.the necessary for determining whether such funding that will be available to terms and conditions are being complied §17.23 tAmendedl implement such steps,and the with.The Director shall rely upon 4.The introductory paragraph of procedures to be used to deal with existing reporting requirements to the 4 17.23 is revised to read as follows; unforeseen circumstances;(C)what maximum extent practicable. Upon receipt of a complete alternative actions to such taking the (4)Duration of permits.The duration application,the Director may issue a applicant considered and the reasons of permits issued under this paragraph permit authorizing any activity why such alternatives are not proposed shall be sufficient to provide adequate otherwise prohibited by$17.21,in Federal Register / Vol. 50, No. 189 / Monday. September 30. 1985 / Rules and Regulations 39689 accordance with the issuance criteria of exporting,selling in interstate f 13.21(b)of this subchapter.the n this section in order to prevent undue commerce); following factors: economic hardship.The Director shall (ii)A statement'as to whether,at the (i)Whether the purpose for which the publish notice in the Federal Register of time of application,the wildlife sought permit is required is adequate to justify each application for a permit that is to be covered by the permit(A)is still in removing from the wild or otherwise made under this section.Each notice the wild,(B)has already been removed changing the status of the wildlife shall invite the submission from from the wild.or(C)was born in sought to be covered by the permit: interested parties.within 30 days after captivity; (ii)The probable direct and indirect the date of the notice,of written data, (iii)A resume of the applicant's effect which issuing the permit would views,or arguments with respect to the attempts to obtain the wildlife sought to have on the wild populations of the application.The 30-day period may be be covered by the permit in a manner wildlife sought to be covered by the waived by the Director in an emergency which would not cause the death or permit: situation where the life or health of an removal from the wild of such wildlife; (iii)Whether the permit,if issued, endangered animal is threatened and no (iv)If the wildlife sought to be would in any way.directly or indirectly, reasonable alternative is available to covered by the permit has already been conflict with any known program the applicant.Notice of any such waiver removed from the wild,the country and intended to enhance the survival shall be published in the Federal place where such removal occurred;if probabilities of the population from Register within 10 days following the wildlife sought to be covered by which the wildlife sought to be covered issuance of the permit. • permit was born in captivity,the by the permit was or would be removed; • • country and place where such wildlife (iv)Whether the purpose for which 5.))17.32 is revised to read as follows: was born; the permit is required would be likely to (v)A complete description and reduce the threat of extinction facing the 117.32 �� address of the institution or other species of wildlife sought to be covered Upon receipt of a complete facility where the wildlife sought to be by the permit; application the Director may issue a covered by the permit will be used, (v)The opinions or views of scientists permit for any activity otherwise displayed,or maintained; or other persons or organizations.having prohibited with regard to threatened (vi)if the applicant seeks to have live expertise concerning the wildlife or wildlife.Such permit shall be governed wildlife covered by the permit.a other matters germane to the by the provisions of this section unless a complete description,including application;and special rule applicable to the wildlife, photographs or diagrams,of the (vi)Whether the expertise,facilities, appearing in 417.40 to 17.48.of this part facilities to house and/or care for the or other resources available to the provides otherwise.Permits issued wildlife and a resume of the experience applicant appear adequate to under this section must be for one of the of those persons who will be caring for successfully accomplish the objectives following purposes:Scientific purposes, the wildlife; stated in the application. or the enhancement of propagation or (vii)A full statement of the reasons (3)Permit conditions.In addition to survival,or economic hardship.or why the applicant is justified in the general conditions set forth in Part zoological exhibition.or educational obtaining a permit including the details 13 of this subchapter,every permit purposes.or incidental taking,or special of the activities sought to be authorized issued under thisparagraph shall be purposes consistent with the purposes of by the permit subject to the special condition that the the Act.Such permits may authorize a (viii)If the application is for the escape of living wildlife covered by the single transaction.a series of purpose of enhancement of propagation. permit shall be immediately reported to transactions, or a number of activities a statement of the applicant's the Service office designated in the over a specific period of time. willingness to participate in a permit. (a)(1)Application requirements for cooperative breeding program and to (4)Duration of permits.The duration scientific purposes,or the enhancement maintain or contribute data to a of permits issued under this paragraph of propagation or survival,or economic studbook; shall be designated on the face of the hardship,or zoological exhibition,or (ix)The information collection permit. educational purposes.or special requirements contained in this (b)(1)Application requirements for purposes consistent with the purposes of paragraph have been approved by the permits for incidental taking.(i) the Act.Applications for permits under Office of Management and Budget under Applications for permits under this this paragraph must be submitted to the 44 U.S.C.3507 and assigned Clearance paragraph must be submitted to the Director,U.S.Fish and Wildlife Service, Number 1018-x022.This information is Director,U.S.Fish and Wildlife Service. Federal Wildlife Permit Office,1000 N. being collected to provide information Federal Wildlife Permit Office,1000 N. Glebe Road.Room 811,Arlington. necessary to evaluate permit Glebe Road.Room 811,Arlington, Virginia 22201,by the person wishing to applications and make decisions, Virginia 22201,by the person wishing to engage in the prohibited activity.Each according to criteria established in engage in the activity prohibited by application must be submitted on an various Federal wildlife and plant f 17.31. official application(Form 3-200) conservation statutes and regulations, (ii)The director shall publish notice in provided by the Service,and must on the issuance or denial of permits.The the Federal Register of each application include,as an attachment,as much of obligation to respond is required to for a permit that is made under this the following information which relates obtain or retain a permit. section.Each notice shall invite the to the purpose for which the applicant is (2)Issuance criteria.Upon receiving submission from interested parties. requesting a permit: an application completed in accordance within 30 days after the date of the (i)The Common and scientific names with paragraph(a)(1)of this section,the notice,of written data,views,or of the species sought to be covered by Director will decide whether or not a arguments with respect to the the permit,as well as the number,age. permit should be issued.In making this application. and sex of such species,and the activity decision,the Director shall consider,in (iii)Each application must be sought to be authorized(such as taking. addition to the general criteria in submitted on an official application 39 98 Federal Register / Vol. 50, No. 189 / Monday, September 30. 1985 I Rules and Regulations (Form 3-200)provided by the Service, degree to which listed species and their of this section must be reported in and must include as an attachment,all habitats are affected writing to the U.S.Fish and Wildlife of the following information: (3)Permit conditions.In addition to Service.Division of Law Enforcement. (A)A complete description of the the general conditions set forth in Part P.O.Box 28006,Washington.D.C.20006, activity sought to be authorized; 13 of this subchapter,every permit within 5 days.The specimen may only (B)The common and scientific names issued under this paragraph shall be retained,disposed of,or salvaged in of the species sought to be covered by contain such terms and conditions as accordance with written directions from the permit,as well as the number,age, the Director deems necessary or the Service. and sex of such species.if known: appropriate to carry out the purposes of (4)Notwithstanding paragraph(c)(1) (C)A conservation plan that specifies: the permit and the conservation plan of this section.any qualified employee (1)The impact that will likely result including,but not limited to,monitoring or agent of a State conservation agency from such taking:[2)what steps the and reporting requirements deemed which is a party to a Cooperative applicant will take to monitor,minimize, necessary for determining whether such Agreement with the Service in end mitigate such Impacts,the funding terms and conditions are being complied accordance with section 6(c)of the Act. that will be available to implement such with.The Director shall rely upon who is designated by that agency for steps,and the procedures to be used to existing reporting requirements to the such purposes,may,when acting in the deal with unforeseen circumstances:(3) maximum extent practicable. course of official duties,remove and what alternative actions to such taking (4)Duration of permits.The duration reduce to possession from areas under the applicant considered and the of permits issued under this paragraph Federal jurisdiction those endangered reasons why such alternatives are not shall be sufficient to provide adequate plants which are covered by an proposed to be utilized;and(4)such assurances to the permittee to commit approved cooperative agreement for other measures that the Director may funding necessary for the activities conservation programs in accordance require as being necessary or authorized by the permit,including with the Cooperative Agreement, appropriate for purposes of the plan. conservation activities and land use provided that such removal is not (1)The information collection restrictions.In determining the duration reasonably anticipated to result in:0) requirements contained in this of a permit,the Director shall consider The death or permanent damage of 'he paragraph have been approved by the the duration of the planned activities,as specimens:(ii)the removal of the Office of Management and Budget under well as the possible positive and specimen from the State where the 44 U.S.C.3507 and assigned Clearance negative effects associated with permits removal occurred;or(ill)the Number 1018-0022.This information is 01 the proposed duration on listed introduction of the specimen so being collected to provide information species,including the extent to which removed or of any propagules derived necessary to evaluate permit the conservation plan will enhance the from such a specimen,into an area applications and make decisions, habitat of listed species and increase beyond the historical range of the according to criteria established in the long-term survivability of such species. various Federal wildlife and plant species. , • • • a conservation statutes and regulations on g 17.11 [Amended) 8.In 1 17.62,is amended by the issuance or denial of permits.The 6.In 17.111,paragraph[a)is amended redesignating paragraphs(a)(1)(iv) obligation to respond is required to byreplacing the prase" ra a hs b through(a)(1)(vii)as paragraphs obtain or retain a permit. through(d] with the phrase P ( ) (a)(1)(v)through(a)(1)(viii)and by (2)Issuance criteria.Upon receiving "paragraphs b throughadding new paragraphs(a)(1)(iv), an application completed in accordance ,Sect' 17 81 is amended by (a)(2)(v),and(a)(3)(iii)to read as with paragraph(b)(1)of this section,the redesignating paragraphs(c)and(d)as follows: Director will decide whether or not a d and e),respective) and b adding permit should be issued.The Director the following new paragraph(c): for the orthancemont 2 permits for �t purposes or shall consider the general criteria inpropagation or 413.21(6)of this subchapter and shall 417.61 ProhibtUans. survival. issue the permit if he finds that:(i)The • • • ` taking will be incidental;(ii)the (c)Remove and reduce to possession. (a)• • • applicant will,to the maximum extent (1)It is unlawful to remove and reduce (1) practicable,minimize and mitigate the to possession any endangered plant (iv)if the activities would involve impacts of such taking;(iii)the applicant from an area under Federal jurisdiction. removal and reduction to possession of will ensure that adequate funding for the (2)Notwithstanding paragraph(c)(1) a plant from an area under Federal conservation plan and procedures to of this section,any employee or agent of jurisdiction.the year,State,county.or deal with unforeseen circumstances will the Service,any other Federal land any other description such as place be provided:(iv)the taking will not management agency,or a State name,township,and range designation appreciably reduce the likelihood of the conservation agency,who is designated that will precisely place the location survival and recovery of the species in by that agency for such purposes.may. where the proposed removal and the wild;(v)the measures,if any, when acting in the course of official reduction to possession will occur,the required under subparagraph duties,remove and reduce to possession name of the Federal entity having (b)(1)(iii)(D)will be met:and(vi)he has endangered plants from areas under jurisdiction over the area,and the name, received such other assurances as he Federal jurisdiction without a permit if title,address,and phone number of the may require that the plan will be such action is necessary to:(i)Care for a person in charge of the area. implemented.In making his decision,the damaged or diseased specimen;(ii) • • • • * Director shall also consider the dispose of a dead specimen;or(iii) (2)• • • anticipated duration and geographic salvage a dead specimen which may be (v)If the activities would involve scope of the applicant's planned useful for scientific study. removal and reduction to possession of activities,including the amount of listed (3)Any removal and reduction to seeds from an area under Federal species habitat that is involved and the possession pursuant to paragraph(c)(2) jurisdiction,the year,State.county or Federal Register / Vol. 50. No. 189 / Monday. September 30. 1985 / Rules and Regulations 39691 any other description such as place name of the Federal entity having name,township,and range designation jurisdiction over the area and the name. that will precisely place the location title,address,and phone number of the where the proposed removal and person in charge of the area. .. reduction to possession will occur,the • • • • • name of the Federal entity having (2)• • • jurisdiction over the area and the name, (iv)If the activities would involve title,address,and phone number of the removal and reduction to possession of person in charge of the area. (3). . seeds from an area under Federal (iii)The information collection jurisdiction,the year,Sate.county,or requirements contained in this section any other description such as place have been approved by the Office of name,township.and range designation Management and Budget under 44 U.S.C. that will precisely place the location 3507 and assigned Clearance Number where the proposed removal and 1018-0022.This information is being reduction to possession will occur,the collected to provide information name of the Federal entity having necessary to evaluate permit jurisdiction over the area and the name, applications and make decisions, title,address,and phone number of the according to criteria established in person in charge of the area. various Federal wildlife and plant (3) • • • conservation statutes and regulations, (iii)The information collection on the issuance or denial of permits.The requirements contained in this section obligation to respond is required to have been approved by the Office of obtain or retain e permit. Management and Budget under 44 U.S.C, * • • 3507 and assigned Clearance Number 9.Section 17.71 is amended by 1018-0022.This information is being redesignating paragraph(b)as(c)and collected to provide information adding the following new paragraph(b): necessary to evaluate permit applications and make decisions. f 17.71 Prohibitions. according to criteria established in • • various Federal wildlife and plant (b)In addition to any provisions of conservation statutes and regulations, this Part 17,any employee or agent of on the issuance or denial of permits.The the Service or of a State Conservation obligation to respond Is required to Agency which is operating a obtain or retain a permit. conservation program pursuant to the • • it • • terms of a Cooperative Agreement with Dated:August 22,1965. the Service in accordance with section p,Dmilel smith. 6(c)of the Act,who is designated by Acting Deputy AssistantSecramry far Fish that agency for such purposes.inay, and wildlife and Panes. when acting in the course of official (pR Doc 6523101 Filed 627.0,5c 8:15 am) duties,remove and reduce to possessionsauna coos n+aas from areas under Federal jurisdiction those threatened species of plants which are covered by an approved Cooperative Agreement to carry out conservation programs. • • • • • 10.In section 17.72,is amended by redesignating paragraphs(aX1XIv) through(a)(1)(vi)as Paragraphs(a)(3)(v) through(a)(1Xvii)and by adding new paragraphs(a)(1Kiv),(a)(2)(iv),and (a)(3)(iii)to read as follows: 17.72 Peemlte—general • • • • • (a)• • . (1). • (iv)If the activities would involve removal and reduction to possession of a plant from an area under Federal jurisdiction.the year,State,county or any otherdescription such as place name,township,and range designation that will precisely place the location where the proposed removal and reduction to possession will occur,the APPENDIX 2: Reference List of Publications On HCPs and Conservation Biology n Reference List of Publications Concerning HCPs and Conservation Biology Bean, M.J., S.G. Fitzgerald, and M.A. O'Connell. 1991. Reconciling conflicts under the Endangered Species Act: The habitat conservation planning experience. World Wildlife Fund. Harper's Graphics/St. Mary's Press, Waldorf, Maryland. (Order from WWF Publications, P.O. Box 4866, Hampden Post Office,Baltimore, MD 21211.) Beatley, T. 1990. Balancing urban development and endangered species: The Coachella Valley habitat conservation plan. Environmental Management. Vol. 16,No. 1,pp. 7-20. Beatley, T. 1994. Habitat conservation planning: Endangered species and urban growth. University of Texas Press, Austin. Budd, W.W., and P.L. Cohen. 1987. Stream corridor management in the Pacific Northwest: 1. Determination of stream-corridor widths. Environmental Management, Vol. 11,No. 5. Butler, K.S., and J. Crumley. The Balcones Canyonlands habitat conservation plan. Preserving biodiversity and endangered species in an urban area. Environmental Planning Quarterly, Winter 1991-1992, Vol. 9, No. 1. Carter, C.H. 1991. A dual track for incidental takings: Reexamining sections 7 and 10 of the n Endangered Species Act. Boston College Environmental Affairs Law Review, Vol. 19, No. 1, pp. 135-171. Cohen, P.L., P.R. Saunders, and W.W. Budd. 1987. Stream corridor management in the Pacific Northwest: II. Management strategies. Environmental Management, Vol. 11,No. 5. Conner, R.N. 1988. Wildlife populations: Minimally viable or ecologically functional? Wildl. Soc. Bull., Vol. 16,No. 1:80-84. Harris, L.D. 1985. Conservation corridors - a highway system for wildlife. ENFO. Harris, L.D. 1984. The fragmented forest: Island biogeography theory and the preservation of biotic diversity. University of Chicago Press, Chicago, Ill. Harris, R.B., L.A. Maguire, and M.L. Shaffer. 1987. Sample sizes for minimum viable population estimation. Conservation Biology, Vol. 1,No. 1. Heinen, J., and G.H. Cross. 1983. An approach to measure interspersion,juxtaposition, and spatial diversity from cover-type maps. Wildl. Soc. Bull, Vol. 11,No. 3. Hemingson, T.K. 1992. A nationwide survey of habitat conservation plans. M.S. Thesis, University of Texas,Austin. Houck, O.A. 1993. The Endangered Species Act and its implementation by the U.S. Departments of Interior and Commerce. University of Colorado Law Review. 64:277-370. Irvin, W.R. 1993. The Endangered Species Act: Keeping every cog and wheel. Natural Resources and Environment, Vol. 8,No. 1. Lehmkuhl, J.F. 1984. Determining size and dispersion of minimum viable populations for land management planning and species conservation. Environmental Management,Vol. 8,No. 2. Mager, A. 1990. National Marine Fisheries Service habitat conservation efforts in the southeastern United States for 1988. Marine Fisheries Review(J.Alt.Name: Commercial Fisheries Review). Vol. 52,No. 1. Marsh, L.L., and R.D. Thornton. 1987. San Bruno Mountain habitat conservation plan. In: Managing land use conflicts; case studies in special area management(D.J. Brower and D.S. Carol,Eds.). Duke University Press, Durham,North Carolina. Murphy, D.D., and B.Noon. 1992. Integrating scientific methods with habitat conservation planning: Reserve design for northern spotted owls. Ecological Applications, a Publication of the Ecological Society of America, Vol. 2,No. 1,pp. 3-17. Noss, R.F. 1987. Corridors in real landscapes: A reply to Simberloff and Cox. Conservation Biology, Vol. 1,No. 2. Reed,J.M., P.D. Doerr, and J.R. Walters. 1986. Determining minimum population sizes for birds and mammals. Wildl. Soc. Bull., Vol. 14,No. 3:255-261. Rohlf,D.J. 1989. The Endangered Species Act: A guide to its protections and implementation. Stanford Environmental Law Society, Stanford, California. Ruhl, J.B. 1990. Regional habitat conservation planning under the Endangered Species Act: Pushing the legal and practical limits of species protection. Southwestern Law Journal, Vol. 44,No. 1,pp. 1393-1425. Samples, K.C., J.A. Dixon, and M.M. Gowen. 1986. Information disclosure and endangered species valuation. Land Economics, Vol. 62,No. 3. Samson, F.B., F. Perez-Trejo, H. Salwasser, L.F. Ruggiero, and M.L. Shaffer. 1985. On determining and managing minimum population size. Wildl. Soc. Bull., Vol. 13,No. n 4:425-433. Scott, J. Michael, et al. [no date]. Beyond endangered species: An integrated conservation strategy for the preservation of biological diversity. Endangered Species Update 5(10). Severinghaus, W.D. 1981. Guild theory development as a mechanism for assessing environmental impact. Environmental Management, Vol. 5,No. 3. Simberloff, D., and J. Cox. 1987. Consequences and costs of conservation corridors. Conservation Biology, Vol. 1,No. 1. Shaw, D.M. 1989. Remote sensing and GIS for the Austin region habitat conservation plan. University of North Texas, Denton, Texas. Soule, M.E., and B. Wilcox(eds). 1980. Conservation biology. Sinaver Associates, Inc. ISBN 087893800. Stangel, P.W. 1987. Conservation genetics of endangered species. In: Proceedings of the 3rd nongame and endangered wildlife symposium [Odum Riddleberger, and J.C. Ozier(eds)]. August 8-10, 1987,Athens, Georgia. Georgia Department of Natural Resources, Game and Fish Division,Atlanta, Georgia. Thornton, R.D. 1990. Takings under the Endangered Species Act section 9. Natural Resources and Environment. Vo. 4. Thornton, R.D. 1991. Searching for consensus and predictability: Habitat conservation planning under the Endangered Species Act of 1973. Environmental Law 21 :603-55. Thornton, R.D. 1993. The search for a conservation planning paradigm: Section 10 of the ESA. Natural Resources & Environment. 8:21-23. Webster, R.W. 1987. Habitat conservation plans under the Endangered Species Act. San Diego Law Review 24:243-71. Wood, T. 1992. A comparison of habitat conservation plans prepared under the Endangered Species Act of 1973, as amended. M.S. Thesis, University of San Francisco, San Francisco, California. APPENDIX 3: Example of an HCP Memorandum of Understanding MEMORANDUM OF UNDERSTANDING BY AND BETWEEN U.S. FISH AND WILDLIFE SERVICE U.S. BUREAU OF LAND MANAGEMENT, CALIFORNIA DEPARTMENT OF FISH AND GAME, CALIFORNIA ENERGY COMMISSION, CALIFORNIA DEPARTMENT OF CONSERVATION DIVISION OF OIL AND GAS, and the COUNTY OF KERN TO ESTABLISH A PROGRAM FOR THE CONSERVATION OF SPECIES OF CONCERN IN KERN COUNTY. This Memorandum of Understanding("Memorandum") is made and entered into this 17th day of April, 1989, by and between U.S. Fish and Wildlife Service, hereinafter called the Service, U.S. Bureau of Land Management, hereinafter called the Bureau, California Department of Fish and Game,hereinafter called the Department, California Energy Commission, hereinafter called the Commission, California Department of Conservation, Division of Oil and Gas, hereinafter called the Division, and the County of Kern represented by the Kern County Department of Planning and Development Services, hereinafter called Kern County (collectively, "Public Agencies"). WITNESSETH: WHEREAS, the Public Agencies are among the Federal, State, and local agencies that have regulatory authority or responsibility under certain Federal and State statutes, including the Endangered Species Act of 1973, as amended ("ESA"),the California Endangered Species Act of 1984 ("CESA"),the National Environmental Policy Act("NEPA"),the California Environmental Quality Act("CEQA"), and State Planning and Zoning Law, to protect"Species 2 of Concern" and their habitats from adverse effects resulting from public and private development actions, and WHEREAS,the multiple sources of authority under which the Public Agencies operate do not provide any individual agency with the authority to implement a comprehensive program, enlisting the efforts of all levels of government, to provide for the long-term survival of the Species of Concern in Kern County, and WHEREAS, because of the overlap and concurrent jurisdiction of the Public Agencies, the private sector lacks assurances that compliance with requirements imposed by any one Public Agency will be timely and will satisfy requirements that may be imposed by any other agency, and WHEREAS,the Public Agencies desire that their respective concerns and responsibilities with regard to the conservation of Species of Concern be integrated and coordinated in such a manner as to ensure effective, timely, and mutually beneficial resolution of such issues within Kern County, and WHEREAS,the Public Agencies together with representatives from private conservation groups, and oil and gas, agriculture, and urban development, have voluntarily and mutually established a multi-agency work group, known as the Kern County Threatened and Endangered Species Work Group ("Work Group"), for the purpose of developing a program to conserve the Species of Concern in Kern County,with emphasis on the valley floor portion of the county, and WHEREAS,Kern County is desirous that their local land use regulations and development decisions comply with State and Federal environmental and endangered species statutes and regulations, and, along with local industry,that planning within the County provides for continued economic growth and development and ensures a healthy economic environment for its citizens and industries, THEREFORE, it is mutually agreed and understood that: 1.0 PURPOSE OF MEMORANDUM The Public Agencies have entered into this Memorandum to define relationships and agencies with permit or regulatory authority over Species of Concern and to develop a cooperative program called the Kern County Endangered Species Program,which will ensure that the activities of private parties will comply with applicable laws and regulations concerning the Species of Concern in Kern County, and which will provide long-term protection of such species. 3 2.0 PURPOSES OF THE PROGRAM n The purposes of the Kern County Endangered Species Program, hereinafter called the Program, are as follows: 2.1 Protection of Species of Concern. To conserve and protect Species of Concerns and their habitats within Kern County. 2.2 Assurances to Private Sector. To provide a means to standardize and integrate militation/compensation measures for Species of Concern so that public and private development actions together with mitigation/compensation measures established by the Program for such action(s)will satisfy concurrently without duplication or unnecessary delay applicable provisions of Federal and State laws and applicable local ordinances and regulations. 2.3 Cumulative Effects. To specify mitigation measures needed to lessen or avoid the cumulative effects of development activities on Species of Concern and eliminate,where possible, the requirement of case-by-case review of all such effects that will be mitigated by the specific measures. The foregoing shall be accomplished through certain procedural components of the Program, as described below, including, but not limited to, (a) an Endangered Species Element to be adopted by the Board of Supervisors of Kern County that addresses the conservation of Species of Concern, (b) a conservation plan(s) for such species in the valley floor portion and perhaps other parts of Kern County which may affect adjoining counties (e.g., San Luis Obispo - Carrizo Plain), (c) an implementing agreement between the public and private sector participants to ensure execution of the conservation plan(s), and (d) Section 10(a)permit(s)pursuant to the ESA to authorize incidental taking of federally listed species. 2.4 Equitable Distribution of Mitigation/Compensation Obligations. To ensure that the costs of mitigation/compensation measures apply equitably to all agencies and private sector groups conducting activities affecting Species of Concern. 3.0 COMPONENTS OF THE PROGRAM The program will include the following components: 3.1 Endangered Species Element: The Element will establish county-wide goals, policies, and implementation programs for addressing issues affecting Species of Concern and their habitats. The Element will provide a comprehensive policy framework that links State and Federal species conservation programs with local land use planning to ensure coordinated, effective, and timely resolution of conflicts between development and the conservation of Species of Concern, especially listed species. 4 "-'`, 3.1.1 The Element will provide broad based policy, foundation, and direction for the preparation of conservation plan(s) and other related programs in the county. The Element will be broader in scope and more comprehensive than the area-specific conservation plan(s). 3.1.2 The Element will address the full range of land use issues, including urban, oil and gas, mineral and agricultural development. The State requirement for consistency between general plan elements will afford the opportunity to conform land use planning programs, including the land use, conservation, and open space elements of the general plan,with the Endangered Species Element, and to provide for the necessary linkage with local permit,zoning, and subdivision ordinances. 3.1.3 The Element will be prepared concurrent with and independent of the preparation of any conservation plans to be prepared pursuant to Section 3.2, below. 3.2 Conservation Plan: A conservation plan will be prepared by Kern County for Species of Concern within the valley floor portion of Kern County (shown on Exhibit A) concurrent with the preparation of the Element described in Section 3.1, above. Other portions of the county may be similarly addressed later. Kern County will submit the plan to (1)the U.S. Fish and Wildlife Service as part of County's application for a Federal permit authorizing incidental taking of federally listed endangered and threatened species pursuant to Section 10(a) of the ESA and to (2)the other Federal and State agencies party to this Memorandum for their respective review and approval. The plan will identify the mitigation/compensation measures that will satisfy the requirements of Federal, State, and local law, including but not limited to ESA, CEQA, and CESA, regarding the protection of the Species of Concern and their habitats. Development of the conservation plan must comply with requirements described in 50 CFR Part 17. (For additional details, see Federal Register 50:39681-39691, 1985.) The Section 10(a)permit will authorize Kern County, and private parties operating under the authority of the permit, to carry out activities that result in the incidental take of Species of Concern that are federally listed. 3.2.1 It is intended that the review and approval of the conservation plan by the participating Federal, State, and local agencies will satisfy the requirements of applicable Federal and State environmental law. It is the intent of the parties to eliminate project-by-project review of the effect of development activities on the Species of Concern, to the full extent authorized by law, and to ensure that mitigation/compensation measures are not imposed beyond those detailed in the conservation plan(s) for such development activities provided conditions under which the conservation plan was formulated have not significantly changed. Such a conservation plan will satisfy the participating Federal and State agencies with respect to the protection of the Species of Concern by, among other possible mechanisms,providing uniform and biologically viable mitigation/compensation measures for application to development activities. Such mitigation measures will be developed subject to the approval of participating Federal and State agencies. 5 3.2.2 Individual landowners, groups of landowners, or development interests may choose to comply with the terms and conditions of an applicable and approved conservation plan affecting their proposed activities. Alternately,they may choose to prepare and submit their own conservation plan and Section 10(a)permit application when their activities may result in incidental take of federally listed species and, if State or local agency approval is required,they may choose to submit their proposal outside the existing conservation plan umbrella. 3.3.3 The conservation plan for the valley floor will be prepared concurrent with and independent of the preparation of the Element prepared pursuant to Section 3.1, above. 3.3 Implementing Agreement. The conservation plan shall be implemented through an enforceable agreement. The agreement shall specify the operating parameters of the conservation plan for the valley floor and any other area in the county. The Agreement specifies the obligations, authorities,responsibilities, liabilities, benefits, rights, and privileges of all parties or signatories to the subject conservation plan to be prepared and submitted with the Section 10(a)permit application. It is intended that the agreement will be entered into by Kern County, the other Public Agencies approving the conservation plan, and any private party having an obligation or role in implementing the conservation plan. The agreement will provide specific mitigation commitments for private parties and Public Agencies conducting development activities, and assurances by the Public Agencies to prevent the imposition of inconsistent or overlapping mitigation/compensation requirements under any Federal, State, or local law. 4.0 STEERING COMMITTEE Kern County will appoint steering committee(s), consisting of representatives of the parties of this Memorandum, insofar as each may agree to so serve, and other members as may be determined by the County, including, but not limited to,the private sector members of the Work Group,to oversee preparation of the Element, conservation plan(s), and associated environmental documents. Actual preparation of these documents will be undertaken by the County and/or their consultant. 5.0 ENVIRONMENTAL REVIEW 5.1 CEQA Compliance - Conservation Plan. Adoption of an Endangered Species Element by Kern County and approval of a conservation plan(s)and implementation agreements(s) by the State agencies are actions subject to CEQA Review. It is understood the County will act as the lead agency and prepare an Environmental Impact Report("EIR") or EIR's for the Element and the valley floor conservation plan. In the preparation of the environmental documents for the conservation plans, the participating State agencies shall act as responsible agencies in accordance with Section 15096 of the CEQA Guidelines. The EIR of the Element and 6 r"e the valley floor conservation plan shall operate ad Program EIR(s)pursuant to Section 15168 of the CEQA Guidelines. The preparation of the Program EIR(s)will provide for the certification of appropriate environmental documents (e.g., negative declarations), if necessary, by Kern County and other agencies for projects within the conservation plan area that comply with the measures described in the plan that avoid or mitigate significant impacts to Species of Concern, as defined under Section 15065 of the CEQA Guidelines. The preparation of a Program EIR(s) will avoid duplicative reconsideration of basic policy considerations and ensure consideration of cumulative effects of individual project impacts. Upon certification of the Program EIR(s), all subsequent projects, as defined in the PRC 21065 and Section 15378 of the CEQA Guidelines, shall continue to be processed by the lead agency through preparation of an initial study and circulation of that study for comment by trustee agencies. 5.1.1 CEQA Compliance - Project. It is not the intent of this Memorandum to create new discretionary permit requirements or to increase unnecessary land use regulation. The lead agency will comply with CEQA requirements to mitigate adverse impacts to Species of Concern by implementing the mitigation requirements established by the Program EIR. All permits and other entitlement shall be issues as early in the process as is feasible for project development. Nothing in this Memorandum is intended to modify or alter the requirements of CEQA with regard to review of projects by lead, trustee, or responsible agencies. Further this Memorandum shall not have the effect of transforming discretionary approvals into ministerial acts or ministerial acts into discretionary approvals. 5.2 NEPA Compliance. Issuance of a Section 19(a)permit by the Service is an action subject to NEPA review. It is understood that the Service will act as the lead agency under NEPA and will prepare either an Environmental Assessment("EA")or an Environmental Impacts Statement("EIS"), as appropriate with regard to the Section 19(a)permit and accompanying conservation plan. The EA and EIR may be prepared and circulated concurrently with the Program EIR. 6.0 FUNDING The Work Group will attempt to secure funding for preparation of these documents and the associated environmental reports. The group will explore all potential sources, including but not limited to Federal and State agencies, conservation organizations, and private industry. Work will continue on Program development so long as sufficient funding is available to Kern County to offset all costs. '"� 7 7.0 SPECIES OF CONCERN Species to be specifically addressed in the Endangered Species Element and any area- specific conservation plan will be determined by Kern County based upon recommendations to be provided by the Steering Committee, following opportunity for public input. 8.0 Public Involvement It is the intent of the parties to this agreement that the public will be afforded sufficient opportunity to provide input to the Element and the conservation plan for the valley floor, not only during the required CEQA and NEPA review process, but during the scoping and planning process, as well. 9.0 RELATIONSHIP OF PROGRAM TO THE ESA AND CESA 9.1 Section 4 of the ESA. Because of the requirements of Section 4(f)of ESA, as amended in 1988, the preparation or revision by the Service of recovery plans for any Species of Concern must be closely coordinated and consistent with the terms of any conservation plan or other program affecting such species. In addition,the Service will, to the maximum extent practicable, incorporate in each recovery plan objective, measurable criteria that when met would result in the delisting of such species. 9.2 Section 7 of the ESA. Section 7 of the ESA requires all Federal agencies to ,n initiate formal consultation if their action may affect federally listed species (50 CFR § 402.14). Though a conservation plan may address in some fashion Federal lands,the issuance of a Section 10(a)permit does not eliminate the need for Federal agencies to comply with Section 7. Nonetheless, the appropriate use by a Federal agency, regardless whether that agency is a signatory to this Memorandum or any conservation plan, of mitigation/compensation measures established by an approved conservation plan will satisfy the requirements of Section 7. Moreover, in the case of jeopardy biological opinion,the Service intends to use,where appropriate, such measures as reasonable and prudent alternatives. 9.3 CESA. Section 2053 of the Fish and Game Code establishes State policy that State agencies should not approve projects that would jeopardize the continued existence of any endangered or threatened species or result in the adverse modification of habitat essential to the continued existence of those species. Further Section 2080 of the Fish and Game Code prohibits the import or export from California, or take, possession or sale within California of any threatened or endangered species. It is the intent of this Memorandum to implement the identified provision of CESA by establishing a planning process that will avoid the adverse modification of habitat essential to the species, and ensure the continued existence of such species. 8 �"`. IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Memorandum, on the date(s) set forth below, as of the day and year first above written. By Date Regional Director, U.S. Fish and Wildlife Service, Portland, Oregon By Date State Director, U.S. Bureau of Land Management, Sacramento, California By Date Director California Department of Fish and Game Sacramento, California r-� By Date Executive Director, California Energy Commission, Sacramento, California By Date Director, California Department of Conservation, Division of Oil and Gas, Sacramento, California By Date Chairman, Kern County Board of Supervisors Bakersfield, California 9 APPENDIX 4: "Template" Implementing Agreement n "Template" Implementing Agreement This template has been designed primarily for use with simple HCPs,but may also be used in other cases. Important Notice: U.S.Fish and Wildlife Service. The template may be used to develop Implementing Agreements by filling in project-specific information where indicated. When used in this manner,no Solicitor's Office review is necessary. However,when provisions in addition to those provided in the template are included,or if any provisions are deleted or the template is otherwise significantly modified,such agreements should be reviewed by the Solicitor's Office prior to approval by the appropriate FWS Regional Director. Attachments 1,if used to address habitat compensation measures in Implementing Agreements,should be reviewed by the Solicitor's Office prior to approval. National Marine Fisheries Service. The template may also be used to develop Implementing Agreements for HCPs for marine species,anadromous species,and hatchery operations. However,it is NMFS policy that all Implementing Agreements will be reviewed by the National Oceanic and Atmospheric Administration's General Counsel's Office. n IMPLEMENTING AGREEMENT by and between [APPLICANT] U.S.FISH AND WILDLIFE SERVICE and/or NATIONAL MARINE FISHERIES SERVICE and the [STATE] DEPARTMENT OF FISH AND GAME [if applicable] TO ESTABLISH A MITIGATION PROGRAM FOR ENDANGERED [THREATENED] SPECIES AT THE PROPOSED [APPLICANT] [PROJECT OR ACTIVITY SITE NAME] [SITE LOCATION, INCLUDING LEGAL DESCRIPTION,COUNTY,AND STATE]. This Implementing Agreement("Agreement"),made and entered into as of the day of , 199_, by and among[APPLICANT],the UNITED STATES FISH AND WILDLIFE SERVICE(FWS)and/or NATIONAL MARINE FISHERIES SERVICE(NMFS)(collectively,the Services),and the(STATE) DEPARTMENT OF FISH AND GAME(SDFG) [if applicable],hereinafter collectively called the"Parties," defines the Parties' roles and responsibilities and provides a common understanding of action that will be undertaken to minimize and mitigate the effects on the subject listed and unlisted species and their habitats of the proposed[project or activity site name and location]. 1.0 RECITALS This Agreement is entered into with regard to the following facts: WHEREAS,the proposed[project or activity name] site selected after environmental review has been determined to be habitat for the federally listed[species];and, WHEREAS,the proposed[project name] site also has been determined to be habitat for the [species],a Federal proposed or candidate species[if applicable],and the [species],a State listed species[if applicable] and the[species],a rare or declining species[if applicable];and, WHEREAS, [applicant],with technical assistance from the Service[s]and the SDFG,has developed a series of measures,described in the Habitat Conservation Plan,to minimize and mitigate the effects of the proposed[project or activity]upon the subject listed and unlisted species and their associated habitats;and, THEREFORE,the Parties hereto do hereby understand and agree as follows: 2.0 DEFINITIONS The following terms as used in this Agreement shall have the meanings set forth below: n 1 2.1 The term"Permit" shall mean an incidental take permit issued by the Service[s]to [applicant]pursuant to Section 10(a)(1)(B)of the Endangered Species Act(ESA). 2.2 The term"Permit Area" shall mean the[project or activity name] area consisting of approximately[x]acres in the[legal description] in[County and State]as depicted in Figure [x] of the [project or activity]Habitat Conservation Plan. 2.3 The term"Permittee"shall mean[applicant]. 2.4 The term"Conservation Plan" shall mean the Habitat Conservation Plan prepared for the proposed[project or activity]. 2.5 The term"Plan Species"shall mean species adequately covered in the HCP and identified in Section 1.0 of this Agreement. 2.6 [if applicable]The term"Compensation Lands" shall mean(a.) the [x]acres of land acquired by[applicant]and transferred to the Service[s] [if applicable],the SDFG[if applicable]or an approved third party for management pursuant to the terms of the Conservation Plan as habitat for the Plan Species pursuant to Section[x]of this Agreement [if applicable]or(b.) the[x]acres of land owned or controlled by[applicant] and reserved or set aside as habitat for the conservation of the Plan Species and to be managed pursuant to Section[x]of this Agreement and the terms of the Conservation Plan. 2.7 The term"unforeseen circumstances"means any significant,unanticipated adverse change in the status of species addressed under the HCP or in their habitats;or any significant unanticipated adverse change in impacts of the project or in other factors upon which the HCP is based. The term"unforeseen circumstances"as defined in this Agreement is intended to have the same meaning as "extraordinary circumstances"as used in the No Surprises policy. 3.0 HABITAT CONSERVATION PLAN Pursuant to the provisions of Section 10(a)(I)(B)of the ESA and Section[x] of the[State] Endangered Species Act[if applicable], [applicant,hereinafter referred to as Permittee]has prepared a Habitat Conservation Plan(HCP)and submitted it to the Service[s]with a request that the Service[s] issue a Permit(Permit)to allow subject Plan species to be incidentally taken within the Permit Area as depicted and described in Figure[x]of the HCP. The HCP proposes a mitigation program for the subject Plan Species and their habitats. 4.0 INCORPORATION OF HCP The HCP and each of its provisions are intended to be,and by this reference are,incorporated herein. In the event of any direct contradiction between the terms of this Agreement and the HCP,the terms of this Agreement shall control. In all other cases,the terms of this Agreement and the terms of the HCP shall be interpreted to be supplementary to each other. 2 5.0 LEGAL REQUIREMENTS In order to fulfill the requirements that will allow the Service[s]to issue the Permit,the HCP sets forth measures that are intended to ensure that any take occurring within the Permit Area will be incidental;that the impacts of the take will,to the maximum extent practicable,be minimized and mitigated;that procedures to deal with unforeseen circumstances will be provided;that adequate funding for the HCP will be provided;and that the take will not appreciably reduce the likelihood of the survival and recovery of the Plan Species in the wild. It also includes measures that have been suggested by the Service[s]as being necessary or appropriate for purposes of the HCP. 6.0 COOPERATIVE EFFORT [This may not be applicable to all HCPs.] In order that each of the legal requirements as set forth in Paragraph 5.0 hereof are fulfilled,each of the Parties to this Agreement must perform certain specific tasks as more particularly set forth in the HCP. The HCP thus describes a cooperative program by Federal and State agencies and private interests to mitigate the effects of the proposed[project or activity name]on the Plan Species. 7.0 TERMS USED Terms defined and utilized in the HCP and the ESA shall have the same meaning when utilized in this Agreement,except as specifically noted. 8.0 PURPOSES The purposes of this Agreement are: 8.1 To ensure implementation of each of the terms of the HCP; 8.2 To describe remedies and recourse should any Party fail to perform its obligations, responsibilities,and tasks as set forth in this Agreement;and, 8.3 As stated in paragraph 12.3.a hereof,to provide assurances to the Permittee(s)and other non-Federal landowner(s)participating in the HCP[if applicable]that as long as the terms of the HCP and the Permit issued pursuant to the HCP and this Agreement are fully and faithfully performed,no additional mitigation will be required except as provided for in this Agreement or required by law. 9.0 TERM 9.1 Stated Term. This Agreement shall become effective on the date that the Service[s] issue(s) the Permit requested in the HCP and shall remain in full force and effect for a period of[x] years or until termination of the Permit,whichever occurs sooner. 9.2 [For development HCPs with permanent habitat set-asides]:Notwithstanding the stated term as herein set forth,the Parties agree and recognize that once the Plan Species have been incidentally taken and their habitat modified pursuant to the HCP,the take and habitat modification will be permanent. It is therefore the intention of the Parties that the provisions i"� 3 of the HCP and of this Agreement regarding the establishment and maintenance of habitat n for the Plan Species shall likewise,to the extent permitted by law,be permanent and extend beyond the terms of this Agreement. 10.0 FUNDING 10.1 [Permittee] will provide such funds as may be necessary to carry out its obligations under the HCP. The Permittee should notify the Services,if the Permittee's funding resources have materially changed,including a discussion of the nature of the change,from the information provided in section[x]of the HCP. 10.2 [For long term Permits]The Permittee shall further ensure that funding is available to meet its obligations under this Agreement,the Permit and the HCP through an account solely designated for this purpose. The account may be a trust account,irrevocable letter of credit, insurance or surety bond. The account,letter of credit,surety or insurance must not be disapproved by the Service,shall be in the amount of no less that$ ,and shall be maintained for the life of the Permit. Funds from the account,insurance letter,or surety shall only be used if the Permittee is otherwise unable to meet its obligations under this Agreement,the Permit,or the HCP. 10.3 [if applicable]Prior to site disturbing activities,the Permittee will acquire and transfer to SDFG or the Service(s) [if applicable] or a third party approved by SDFG[if applicable] and the Service[s]offsite habitat compensation lands and associated enhancement and endowment funds[if applicable]as described in the HCP,or will guarantee performance of those duties through an irrevocable Letter of Credit,a trust account,insurance,or surety bond[if applicable] in favor of the Service[s], SDFG,or other third party approved by SDFG and the Service[s]and secured against[Permittee]. Such Letter of Credit,proof of trust account,insurance policy,or surety bond shall be delivered to the Service[s] [if applicable], SDFG or approved third party within[x] days of issuance of the Permit and prior to site disturbing activities[if applicable]. 11.0 RESPONSIBILITIES OF THE PARTIES IN MITIGATION PROGRAM IMPLEMENTATION AND MONITORING RESPONSIBILITIES OF THE PERMITTEE 11.1 Responsibilities of the Permittee. a. The HCP will be properly functioning if the terms of the Agreement have been or are being fully implemented. b. The Permittee shall undertake all activities set forth in the HCP in order to meet the terms of the HCP and comply with the Permit,including adaptive management procedures described in subparagraph(c)below,if applicable. c. Describe the adaptive management process agreed to by the parties to ensure the terms of the HCP are fully implemented,if applicable. d. [if applicable] The Permittee shall submit an annual [or specify other reporting period]report describing its activities and an analysis of whether the terms of the 4 HCP were met for the reporting period. The report shall provide all reasonably available data regarding the incidental take,and where requested by the Service(s), changes to the overall population of Plan Species that occurred in the Permit area during the reporting period. In the case of a corporate Permittee,the report shall also include the following certification from a responsible company official who supervised or directed the preparation of the report: Under penalty of law,I certify that,to the best of my knowledge,after appropriate inquiries of all relevant persons involved in the preparation of this report,the information submitted is true, accurate,and complete. 11.2 Responsibilities of the Service(s). a. The Service[s] shall cooperate and provide,to the extent funding is available, technical assistance to the Permittee as detailed in Section[x]of the HCP and [optionally] summarized below. Nothing in this Agreement shall require the Service(s)to act in a manner contrary to the requirements of the Anti-Deficiency Act. b. After issuance of the Permit,the Service[s]shall monitor the implementation thereof,including each of the terms of this Agreement and the HCP in order to ensure compliance with the Permit,the HCP and this Agreement. 11.3 Responsibilities of the SDFG(if applicable). The SDFG shall cooperate and provide,to the extent that adequate funding is available,technical assistance to the Permittee as detailed in Section[x] of the HCP and[optionally] summarized below. 12.0 REMEDIES AND ENFORCEMENT 12.1 REMEDIES IN GENERAL Except as set forth below,each Party shall have all remedies otherwise available to enforce the terms of this Agreement,the Permit,and the HCP,and to seek remedies for any breach hereof,subject to the following: a. NO MONETARY DAMAGES No Party shall be liable in damages to the any other Party or other person for any breach of this Agreement,any performance or failure to perform a mandatory or discretionary obligation imposed by this Agreement or any other cause of action arising from this Agreement. Notwithstanding the foregoing: (1) Retain Liability All Parties shall retain whatever liability they would possess for their present and future acts or failure to act without existence of this Agreement. (2) Land Owner Liability 5 All Parties shall retain whatever liability they possess as an owner of interests in land. (3) Responsibility of the United States Nothing contained in this Agreement is intended to limit the authority of the United States government to seek civil or criminal penalties or otherwise fulfill its enforcement responsibilities under the ESA. b. INJUNCTIVE AND TEMPORARY RELIEF The Parties acknowledge that the Plan Species are unique and that their loss as species would result in irreparable damage to the environment and that therefore injunctive and temporary relief may be appropriate to ensure compliance with the terms of this Agreement. 12.2 THE PERMIT a. SEVERABILITY [For use in HCPs involving multiple Permittees]: The violation of the Permit by any Permittee with respect to any one or more particular parcels of land or portions thereof owned or controlled or within the jurisdiction of any such Permittee shall not adversely affect or be attributed to,nor shall it result in a loss or diminution of any right,privilege,or benefit hereunder,of any other Permittee. b. PERMIT SUSPENSION OR REVOCATION Except as otherwise provided for under the terms of the Agreement,the Permit shall be suspended or revoked in conformance with the provisions of 50 CFR 13.27 through 13.29(1994),as the same exists as of the date hereof. [NOTE: On September 5, 1995,the FWS published a proposed rule in the Federal Register amending the general regulations for its permit program(50 CFR Part 13 and Part 17). The FWS is currently drafting additional language to clarify and resolve the differences between the Part 13 and 17 and a proposed rule will be published in the near future. Consequently,some information contained in this template may be outdated upon publication of a final rule. Users of this template should check the revised permit procedures when available.] 12.3 LIMITATIONS AND EXTENT OF ENFORCEABILITY a. NO SURPRISES POLICY Subject to the availability of appropriated funds as provided in Paragraph 14.6 hereof,and except as otherwise required by law,no further mitigation for the effects of the proposed[project or activity]upon the Plan Species may be required from a 6 Permittee who has otherwise abided by the terms of the HCP,except in the event of unforeseen circumstances;provided that any such additional mitigation may not require additional land use restrictions or financial compensation from the Permittee without his/her written consent. b. PRIVATE PROPERTY RIGHTS AND LEGAL AUTHORITIES UNAFFECTED Except as otherwise specifically provided herein,nothing in this Agreement shall be deemed to restrict the rights of the Permittee to the use or development of those lands,or interests in lands,constituting the Permit Area;provided,that nothing in this Agreement shall absolve the Permittee from such other limitations as may apply to such lands,or interests in lands,under other laws of the United States and the State of[ ]. 13.0 AMENDMENTS Except as otherwise set forth herein,this Agreement may be amended consistent with the ESA and with the written consent of each of the Parties hereto. 14.0 MISCELLANEOUS PROVISIONS 14.1 NO PARTNERSHIP Except as otherwise expressly set forth herein,neither this Agreement nor the HCP shall make or be deemed to make any Party to this Agreement the agent for or the partner of any other Party. 14.2 SUCCESSORS AND ASSIGNS This Agreement and each of its covenants and conditions shall be binding on and shall inure to the benefit of the Parties hereto and their respective successors and assigns. [NOTE: On September 5, 1995,the FWS published a proposed rule in the Federal Register amending the general regulations for its permit program(50 CFR Part 13 and Part 17). The FWS is currently drafting additional language to clarify and resolve the differences between the Part 13 and 17 and a proposed rule will be published in the near future. n 7 Consequently,some information contained in this template may be outdated upon publication of a final rule. Users of this template should check the revised permit procedures when available.] 14.3 NOTICE Any notice permitted or required by this Agreement shall be delivered personally to the persons set forth below or shall be deemed given five(5)days after deposit in the United States mail,certified and postage prepaid,return receipt requested and addressed as follows or at such other address as any Party may from time to time specify to the other Parties in writing: Assistant Regional Director United States Fish and Wildlife Service [Street Address] [City,State,Zip Code] Assistant Regional Director[if applicable] National Marine Fisheries Service [Street Address] [City,State,Zip Code] Director[if applicable] [State]Department of Fish and Game [Street Address] [City, State,Zip Code] [Permittee's Name or Representative] [Company or Agency Name] [Street Address or Post Office Box] [City,State,Zip Code] 14.4 ENTIRE AGREEMENT This Agreement,together with the HCP and the Permit,constitutes the entire Agreement between the Parties. It supersedes any and all other Agreements, either oral or in writing among the Parties with respect to the subject matter hereof and contains all of the covenants and Agreements among them with respect to said matters,and each Party acknowledges that no representation, inducement,promise or Agreement,oral or otherwise,has been made by any other Party or anyone acting on behalf of any other Party that is not embodied herein. 14.5 ELECTED OFFICIALS NOT TO BENEFIT No member of or delegate to Congress shall be entitled to any share or part of this Agreement,or to any benefit that may arise from it. 8 14.6 AVAILABILITY OF FUNDS Implementation of this Agreement and the HCP by the Services is subject to the requirements of the Anti-Deficiency Act and the availability of appropriated funds. Nothing in this Agreement will be construed by the parties to require the obligation,appropriation,orexpenditure of any money from the U.S.treasury. The parties acknowledge that the Services will not be required under this Agreement to expend any Federal agency's appropriated funds unless and until an authorized official of that agency affirmatively acts to commit to such expenditures as evidenced in writing. 14.7 DUPLICATE ORIGINALS This Agreement may be executed in any number of duplicate originals. A complete original of this Agreement shall be maintained in the official records of each of the Parties hereto. 14.8 THIRD PARTY BENEFICIARIES Without limiting the applicability of the rights granted to the public pursuant to the provisions of 16 U.S.C. § 1540(g),this Agreement shall not create any right or interest in the public,or any member thereof,as a third party beneficiary hereof,nor shall it authorize anyone not a Party to this Agreement to maintain a suit for personal injuries or property damages pursuant to the provisions of this Agreement. The duties,obligations,and responsibilities of the Parties to this Agreement with respect to third parties shall remain as imposed under existing Federal or State law. 14.9 RELATIONSHIP TO THE ESA AND OTHER AUTHORITIES The terms of this Agreement shall be governed by and construed in accordance with the ESA and other applicable laws. In particular,nothing in this Agreement is intended to limit the authority of the Service to seek penalties or otherwise fulfill its responsibilities under the ESA. Moreover,nothing in this Agreement is intended to limit or diminish the legal obligations and responsibilities of the Service as an agency of the Federal government. 14.10 REFERENCES TO REGULATIONS Any reference in this Agreement,the HCP,or the Permit to any regulation or rule of the Service shall be deemed to be a reference to such regulation or rule in existence at the time an action is taken. 14.11 APPLICABLE LAWS All activities undertaken pursuant to this Agreement,the HCP,or the Permit must be in compliance with all applicable State and Federal laws and regulations. 9 IN WITNESS WHEREOF,THE PARTIES HERETO have executed this Implementing Agreement to be in effect as of the date last signed below. BY Date Regional Director United States Fish and Wildlife Service [City,State] BY Date Regional Director[if applicable] National Marine Fisheries Service [City, State] BY Date Director[if applicable] [State]Department of Fish and Game [City, State] (With reference to Part[x] of this Agreement only[as applicable]) BY Date [Name],President[Director,etc.] [Company,Organization,Agency] 10 ATTACHMENT 1: Optional Provisions to be Used When the HCP Includes Habitat"Compensation Credit" Requirements Note: The material below is provided to aid Service staffs to develop suitable provisions when an HCP includes habitat"compensation credit" requirements. However,it should not be used in an Implementing Agreement without review by the Solicitor's Office(FWS) or General Counsel's Office(NMFS). 11.4 HABITAT COMPENSATION CREDITS a. As mutually agreed between the Service[s], SDFG[if applicable] and [Permittee],habitat compensation credits shall be established for a maximum of[x]acres of the habitat compensation lands acquired by [Permittee]pursuant to Part 11.1(a)of this Agreement. [Permittee]may sell habitat compensation credits to other project applicants whose projects require acquisition of habitat compensation lands,subject to the following conditions. (1) A habitat compensation credit is defined as the equivalent of one acre of any parcel of habitat compensation lands which the Service[s]and SDFG[if applicable]have designated in writing to be available for sale to other project applicants. Other project applicants may purchase such compensation credits in lieu of acquiring habitat to satisfy habitat compensation requirements for certain projects as described in Paragraph 1 1.4(a)(2). (2) [If applicable]The project of any applicant or other project proponent to which habitat compensation credits may be sold by[Permittee]shall be located outside the[acquisition area],as depicted in Attachment 1 of this Agreement,or any other reserve area designated by the Service[s] and/or SDFG[if applicable]. (3) Compensation lands utilized as habitat compensation credits by[Permittee] shall be acquired and deeded to the Service[s] [if applicable], SDFG[if applicable] or an approved third party [if applicable]prior to any compensation credit transaction,unless otherwise authorized in writing by the Service[s] and SDFG. (4) All compensation credit transactions shall be approved in advance and in writing by the Service[s] and SDFG[if applicable]. (5) [Permittee] shall retain the right to determine the sales price of habitat compensation credits. [Permittee]is under no obligation to sell habitat compensation credits and may choose to retain these credits indefinitely. [Permittee]shall bear all costs associated with mitigation credit transactions. b. [If applicable] [Permittee]may defer payment of habitat enhancement and endowment fees for the[x]acres of compensation lands designated as compensation credits until either the time of sale of such credits or 12 months from the date that compensation lands totaling[x]acres are transferred to the Service[s] [if applicable], SDFG[if applicable]or the approved third party[if applicable] in accordance with Section 11.1(a) of this Agreement. At the time of each sale of compensation credits, either[Permittee] or the purchaser of such credits shall be required to contribute habitat enhancement and endowment fees in the amount of [$ ]cash for each acre of habitat deeded to the Service[s] [if applicable],SDFG[if applicable]or the approved third party. If [Permittee]does not sell all or a portion of the designated habitat compensation credits within 12 months of the transfer of habitat compensation lands totaling[x] acres to the Service[s] [if applicable], SDFG[if applicable]or the approved third party, [Permittee] shall immediately pay in cash to the Service[s] [if applicable], SDFG[if applicable] or the approved third party all remaining habitat enhancement and endowment fees allocated to the unsold credits. c. Upon documentary evidence of sale of habitat compensation credits and deposit of cash fees for habitat enhancement and endowment, [Permittee]may request that the Service[s] [if applicable] and/or SDFG [if applicable],as the beneficiary of the Letter of Credit,join with [Permittee]to request from the issuer an equitable reduction of the Principal Sum of the Letter of Credit. However,the Principal Sum of the Letter of Credit shall not be reduced below an amount determined by the Service[s] [if applicable] and/or SDFG[if applicable]to be reasonably necessary to cure any potential future default by [Permittee]. APPENDIX 5: FWS Guidance on Addressing Migratory Birds and Eagles (FWS Only) ENT O l g,:_-_-- -tit, I� . .� ` United States Department of the Interior .,i t • "' FISH AND WILDLIFE SERVICE Washington, D.C.20240 In Reply Refer To: FWS/TE FEB - 9 1996 Memorandum To: Regional Directors, Regions 1, 2, 3, 4, 5, 6, and 7 From: Director Subject: Incidental Take of Migratory Birds and Bald Eagles Under the Endangered Species Act,the Fish and Wildlife Service may grant a permit(section 10) or issue a statement(section 7)that allows the incidental take of endangered species. Some migratory birds, including the bald eagle, are ESA-listed species. The Migratory Bird Treaty Act prohibits the take of migratory birds, including any species also listed under the ESA. None of '..--. the regulations promulgated under the MBTA expressly provide for permits for incidental take. Likewise,the Bald and Golden Eagle Protection Act prohibits the taking of bald eagles. The regulations promulgated under the BGEPA do not allow for permits to be issued for incidental take of eagles. In many instances, Service biologists have concluded that incidental take of certain ESA-listed migratory birds (including bald eagles) could be allowed without harm to the species and their inclusion in a particular ESA section 7 statement or section 10 permit would be appropriate. However, the apparent inability to grant incidental take under the MBTA or BGEPA has caused confusion both within the Service and among permit applicants. A means to allow incidental take of ESA-listed migratory birds, including the bald eagle,when such incidental take has been judged permissible under the ESA, and to remove the threat of prosecution under the MBTA and BGEPA (when warranted), has been needed. The Solicitor's Office has provided the attached opinion on this issue. We have determined to adopt the approach suggested by the Solicitor's Office as a matter of policy in the following manner: 1. In the ESA section 7 context, the following language should be included when appropriate in any incidental take statement concluding that take of ESA-listed migratory birds (including bald eagles)will result from the actions under consultation: To the extent that this statement concludes that take of any threatened or endangered species of migratory bird will result from the agency action for which consultation is being made,the Service will not refer the incidental take of any such migratory bird for prosecution under the MBTA of 1918, as amended(16 U.S.C. §§ 703-712), or the Bald Eagle Protection Act of 1940, as amended (16 U.S.C. §§ 668-668d), if such take is in compliance with the terms and conditions (including amount and/or number) specified herein. 2. In the ESA section 10 context,the Service will insert, when appropriate, the following language into any permit concerning the incidental take of ESA-listed migratory birds (including the bald eagle): [For species other than the bald eagle] This permit also constitutes a Special Purpose Permit under 50 C.F.R. § 21.27 for the take of[provide species'common and scientific names; species must be ESA-listed, and may not include the bald eagle]in the amount and/or number and subject to the terms and conditions specified herein. Any such take will not be in violation of Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. §§ 703-12). [For the bald eagle] The Service will not refer the incidental take of any bald eagle, Haliaeetus leucocephalus, for prosecution under the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. §§ 703-712), or the Bald Eagle Protection Act of 1940, as amended(16 U.S.C. §§ 68-668d), if such take is in compliance with the terms and conditions (including amount and/or number) specified herein. This memorandum will serve to transmit these recommendations to the Regions as working interim guidance, and when appropriate, section 7(a)(2) incidental take statements and section 10(a)(1)(B)permits should incorporate this language regarding the incidental take of ESA-listed migratory birds. The Service will incorporate final guidance in the final versions of the section 7 and the Habitat Conservation Planning [section 10(a)(1)(B)] handbooks. However, until the section 7 and section 10(a)(1)(B) handbooks have been modified to ensure that their procedures guarantee consistency with the standards of the MBTA and BGEPA, and the procedural requirements of 50 C.F.R. § 21.27, if applicable, any section 7 statement or section 10 permit including the above language should be reviewed by the regional Migratory Bird Coordinator. Comments on this interim guidance are welcomed and to the extent possible, will be used in the final guidance. Comments should be sent to the Chief,Division of Endangered Species,within 30 days of receiving this memorandum. Attachment United States Department of the Interior OFFICE OF THE SOLICITOR Washington,D.C.20240 FEB - 5 1996 Memorandum To: John Rogers, Deputy Director, U.S. Fish and Wildlife Service From: Pete Raynor,Assistant Solicitor, Fish and Wildlife Branch Subject: Permitted Incidental Take of Migratory Birds Listed Under the Endangered Species Act You have asked whether an incidental take statement, under § 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536, or an incidental take permit, under § 10 of the ESA, 16 U.S.C. § 1539, (collectively, incidental take documents) can be used to provide an applicant or permittee with some assurance that the applicant or permittee will not be prosecuted under either r the Migratory Bird Treaty Act(MBTA)or the Bald and Golden Eagle Protection Act(BGEPA) for that take expressly allowed under the ESA document. We conclude that the Service currently has the authority to do so, using a combination of permitting provisions under the Service's discretion in the enforcement of these statutes. I. BACKGROUND Under the ESA,the Service may grant a permit allowing the take of an endangered species incidental to an otherwise lawful activity. Section 10(a)(1). Similarly,pursuant to a consultation under § 7, the Service may issue a statement that incidental take resulting from a federal action will not jeopardize the continued existence of a listed species. Section 7(b)(4). Take of a listed species consistent with an incidental take statement, by the acting agency or an applicant before that agency, does not constitute a violation of the ESA. Section 7(o)(2). The MBTA prohibits the take of migratory birds, 16 U.S.C. § 703, including migratory birds listed under the ESA. The MBTA authorizes the Secretary of the Interior to permit take consistent with the underlying treaties pursuant to regulation. None of the regulations promulgated under the MBTA expressly allows a permit to be issued for incidental take. See generally 50 C.F.R. part 21. However, 50 C.F.R. §21.27 provides for the availability of"special purpose permits" for activities outside the scope of the standard permits. The general MBTA permits are not available for eagles; permits for eagles are controlled by the BGEPA regulations, found in 50 C.F.R. part 22. 50 C.F.R. § 21.4(b). Like the MBTA,the BGEPA prohibits the taking of bald eagles and golden eagles, 16 U.S.C. § 668, except as otherwise permitted pursuant to regulation, id. § 668a. The regulations under the BGEPA allow for the issuance of permits for scientific or exhibition purposes, 50 C.F.R. § 22.21, for Indian religious purposes, id. § 22.22, to take depredating eagles, id. § 22.23, for falconry purposes, id. § 22.24, and to take golden eagle nests, id. § 22.25. The BGEPA regulations do not contain a provision equivalent to the special purpose permit under § 21.27. Currently, ESA incidental take documents do not provide any relief from the prohibitions of the MBTA and BGEPA; indeed,some of those documents specifically state that they do not provide any such relief. Therefore,an applicant that wants complete protection from prosecution for the take of an ESA-listed migratory bird pursuant to an ESA incidental take document must also seek a permit under the MBTA, or if that bird is a bald eagle,the BGEPA. However, no such permit is currently available under the BGEPA,and§ 21.27 under the MBTA has not traditionally been used to provide permits for unintentional take. Thus, applicants in the past have not been provided with assurance that they would not be prosecuted under the MBTA or BGEPA. II. ALTERNATIVES There are a number of theories on which ESA incidental take documents could be used to provide relief from liability under the MBTA and BGEPA. The first alternative is that the ESA documents could be expanded to act as permits under the other acts and their existing regulations as well. However, care would have to be taken to ensure that the ESA permit process was consistent with the legal requirements of the other applicable acts and their regulations. Some of the significant legal hurdles are: • ESA § 7 incidental take statements are not considered to be permits. The process in which these statement are generated is one of scientific analysis. Adapting this process to conform to the procedural requirements of a permit-granting process would be difficult. Among other things,a permitting process may require NEPA analysis,currently not part of the § 7 process. • An ESA permit could apply to the BGEPA only to the extent which the activity to be permitted falls within the existing permit structure of the BGEPA regulations. This will rarely, if ever, be the case. • The application of§ 21.27 of the MBTA is limited to the "activities related to migratory birds." However, we can argue that activity otherwise unrelated to birds can be considered an "activity related to migratory birds" by virtue of the fact that the activity causes bird mortality. • An applicant for a permit under § 21.27 must demonstrate " a sufficient showing of benefit to the migratory bird resource, important research reasons, reasons of human concern for individual birds,or other compelling justifications." Thus,most applications for a permit for 2 take under the MBTA to be used in conjunction with an ESA incidental take document would require either a compelling justification or perhaps sufficient mitigation to show a positive benefit to the migratory bird resource. We note that although § 21.27 appears to be broad enough to encompass the permitting of unintentional take for the purposes of the MBTA,that section is not narrowly focused on incidental take. A regulatory permitting program specifically geared to the problems of incidental take may be advisable. Indeed, such a program would be necessary in order to issue permits for incidental take with respect to the BGEPA, under which regulatory permitting authority for incidental take is essentially lacking. In the meantime,the use of§ 21.27 to permit take in conjunction with an ESA § 10 permit is an acceptable approach. A second alternative, in situations where 50 C.F. R. § 21.27 is not available,would be to include in ESA incidental take documents a statement of enforcement policy to the effect that the Service would not refer the beneficiary of the document for prosecution under the MBTA or BGEPA for the take of the ESA-listed migratory birds covered by the document,provided that such take was consistent with the terms and conditions of the document. The main advantage of this solution is its simplicity; the complications inherent in the permit alternative, discussed above, are avoided. In addition,there is authority to support the argument that such an announcement of enforcement policy under the MBTA is not subject to judicial review. See Alaska Fish& Wildlife Fed'n& Outdoor Council.Inc.v.Dunkle, 829 F.2d 933, 938 (9th Cir. 1987) ("The discretion granted to the Fish and Wildlife Service precludes our review of the Service's failure to enforce the MBTA"), cert. denied, 485 U.S. 988 (1988), on remand, No. J84-013CIVIL, slip op. at 15-16 (June 29, 1988) (distinguishing between reviewable agreement not to enforce and non-reviewable statement of enforcement priorities); see also 53 Fed.Reg. 16877(May 12, 1988)(statement referred to by district court on remand). An announcement of enforcement policy may not be as satisfactory as an applicable permit to those seeking a safe haven from prosecution under the MBTA and BGEPA, but it will certainly provide a short-term solution pending development of a regulatory approach. A third alternative would be to argue that the ESA, a comprehensive and more recent statute;trumps those areas in which it overlaps with the MBTA and the BGEPA. Under this theory, there would be no violation of the other statutes for ESA-listed birds if the ESA was complied with. There is no direct support for such a position; indeed it would be contrary, at a minimum, to a Memorandum from the Assistant Solicitor,Fish and Wildlife, dated Aug. 27, 1980, which stated that the BGEPA, as the more specific statute, governed any situation in which it and the ESA conflict. Arguing, that the ESA trumps the other statutes could have significant, unforseen consequences, and thus seems an unwise course to pursue, particularly given the other options available. 3 III. RECOMMENDATION In order for the Service to give, consistent with the current regulatory authority, the maximum assurance of freedom from prosecution under the MBTA and BGEPA for the take of ESA-listed species consistent with ESA incidental take documents,we recommend the following. 1. In the ESA § 10 context, the § 10 handbook should be revised to require that the standards and procedures of 50 C.F.R. § 21.27 be included in the § 10 process if the permit will cover any non-eagle migratory bird. In addition, the Service should insert the following language into any permit allowing the incidental take of migratory birds: [For species other than the bald eagle] This permit also constitutes a Special Purpose Permit under 50 C.F.R. § 21.27 for the take of[provide species' common and scientific names; species must be ESA-listed, and may not include the bald eagle] in the amount and/or number and subject to the terms and conditions specified herein. Any such take will not be in violation of Migratory Bird Treaty Act of 1918, as amended(16 U.S.C. §§ 703-12). [For the bald eagle] The Service will not refer the incidental take of any bald eagle, Haliaeetus leucocephalus, for prosecution under the Migratory Bird Treaty Act of 1918, as amended(16 U.S.C. §§ 703-712),or the Bald Eagle Protection Act of 1940, as amended (16 U.S.C. §§ 68-668d), if such take is in compliance with the terms and conditions (including amount and/or number) specified herein. 2. In the ESA § 7 context,the Service should include the following language in any incidental take statement concluding that take of ESA-listed migratory birds will result from the subject of the consultation: To the extent that this statement concludes that take of any threatened or endangered species of migratory bird will result from the agency action for which consultation is being made,the Service will not refer the incidental take of any such migratory bird for prosecution under the MBTA of 1918, as amended (16 U.S.C. §§ 703-712), or the Bald Eagle Protection Act of 1940,as amended(16 U.S.C. §§ 668-668d), if such take is in compliance with the terms and conditions (including amount and/or number) specified herein. 3. The Division of Endangered Species and the Office of Migratory Bird Management should meet to discuss whether any additions to the ESA § 7 and § 10 processes are necessary in order to reflect the goals of the MBTA and BGEPA. 4. Consistent with the standard in Dunkle, under no circumstances should the Service bargain or extract concessions in return for the inclusion in an ESA incidental take document of the above language stating that the Service will not refer take for prosecution. ,.� 4 Should the Service decide to use ESA incidental take documents to provide assurances with regard to the MBTA and BGEPA, we would appreciate an opportunity to review the vehicle by which the Service implements any policy change. Please note that the above analysis and recommendations apply only to migratory birds that are also listed as threatened or endangered under the ESA. The Service should take steps to address the question of how to handle the incidental take of non-ESA-listed migratory birds. If you have any questions concerning the above,please contact me or Ben Jesup at (202) 208-6172. cc: Jamie Clark John Doggett Paul Schmidt 5 APPENDIX 6: FWS Guidance on Integrating HCPs With National Wildlife Refuges ttorOFrh : � United States Department of the Interior 7�_ J 2 • = ? FISH AND WILDLIFE SERVICE Washington, D.C. 20240 In Reply Refer To: FWS/AES/TE APR 5 1996 Memorandum To: Regional Directors, Regions 1, 2, 3, 4, 5, 6, Assistant Director- Ecological Services Assistant Director- Fisheries Assistant Director-Refuges and Wildlife Assistant Solicitor- Fish and Wildlife From: Deputy Director Subject: Relationship of National Wildlife Refuges and Habitat Conservation Planning Efforts In recent years, the Habitat Conservation Plan program under section 10(a)(1)(B) of the Endangered Species Act has grown rapidly. When Congress enacted the HCP provisions into law in 1982, it stressed the need for developing "creative partnerships"between the public and private sector in resolving endangered species issues, especially on private lands. One of the ways the Fish and Wildlife Service is developing these"creative partnerships" is through the integration of the National Wildlife Refuge System with HCPs in many areas. These partnerships, although very effective, raise several important questions regarding the relationship between Federal habitat acquisition and HCP efforts. Some have questioned government land acquisition programs in HCP planning areas, claiming that such programs, in effect, absolve private land developers of their obligations to mitigate the impacts of their activities on listed species. This misconception can be clarified by ensuring that the Federal activity of establishing a NWR, in conjunction with a HCP, does not obviate the habitat mitigation requirements for the incidental take permittee. Under section 10 of the Act, an incidental take permittee is required to "minimize and mitigate"the effects of his/her taking of listed species and the permittee has specific conservation responsibilities within any HCP program. The incidental take permittee must mitigate regardless of what is required of or carried out by other entities within the HCP, to the extent deemed appropriate, as defined in an approved HCP. 2 The Service believes that HCPs and NWRs each have their respective roles in habitat conservation efforts and also believes that, in many cases,the two can work together to achieve greater results. However, because HCP efforts sometimes require a public agency funding component in establishing a preserve system, it is critically important to define the relationship between NWR and HCP efforts occurring in the same geographic area early in the planning process. Through proper planning and design a NWR and an HCP can be integrated so that greater benefits to the species can be achieved while, at the same time, the incidental take permittee fulfills their mitigation requirements under the HCP. In other cases,physical separation of the NWR and HCP can result in greater benefits to the species than would integration. The following simple guidelines are provided for determining appropriate courses of action in cases involving establishment and management of NWRs and HCPs occurring in the same geographical area. (1) The primary objective in deciding whether it is desirable to integrate any NWR within any HCP program is to maximize benefits to the species and the ecosystem upon which they depend. (2)A NWR must not be established or managed to substitute for the mitigation required of an incidental take permittee, although the NWR may complement an HCP by helping to meet comprehensive conservation and recovery goals for the species or the ecosystem. Additional guidance and examples can be found in the Service's Habitat Conservation Planning and Incidental Take Permit Processing Handbook. Additional Guidance and Examples Detailing the Relationship of National Wildlife Refuges and Habitat Conservation Planning Efforts In recent years,the Habitat Conservation Plan(HCP)program under section 10(a)(1)(B) of the Endangered Species Act has grown rapidly. At the same time, Congress and the Service have begun to play a larger role in helping to fund and support HCP efforts. For example, Congress appropriated funds to the Service to assist in development of the Brevard County HCP in Florida; these funds were subsequently distributed through a Service grant to the HCP applicant. In other cases, Congress has appropriated funds under the Land and Water Conservation Fund(LWCF) for habitat acquisition in areas where HCP efforts are also underway to maximize cooperative Federal, State, and local land protection efforts (e.g., in the Washington County HCP in Utah and Balcones Canyonlands HCP in Texas). By law, lands acquired by the Service with LWCF or Migratory Bird Funds, must be managed as part of the National Wildlife Refuge System (NWR). These trends raise several important questions concerning the relationship between the two programs (i.e., habitat acquisition under privately funded HCP efforts and publicly funded NWRs) and how such programs should be jointly managed. Some have criticized government land acquisition programs in HCP planning areas, claiming that such programs, in effect, absolve private land developers of their obligations to mitigate the impacts of their activities on listed species. The Service believes that HCPs and NWRs each have their respective roles in habitat conservation efforts and that the two can actually work together to achieve mutual goals. It is critically important to clearly define the relationship between a NWR and HCP efforts occurring in the same vicinity and establish to what extent and how the efforts may be complementary. However,the Federal activity of establishing a NWR should never be considered a substitute for the habitat mitigation requirements for the incidental take permittee that are established by the HCP. This memorandum provides guidance that will help define the relationship between NWRs and HCPs occurring in the same geographic area, as well as to help determine how the programs should be managed. The guidance is provided to help determine the appropriate courses of action in cases involving joint establishment and management of NWRs and HCPs. (1) The primary objective in integrating any NWR with any HCP program is to increase benefits to the species and the ecosystem upon which it depends. The option that most benefits the species is preferable. (2) A NWR should not be established or managed to substitute for the mitigation required by an HCP, but may complement an HCP in meeting comprehensive conservation and recovery goals for the species or the ecosystem. Endangered species habitat acquisition under NWR and HCP programs that occurs in the same are generally is regarded as independent, but complimentary. To the extent that establishment of a NWR helps a community initiate, complete, or maintain an HCP program by sharing the burden of habitat protection, it has contributed to species conservation and recovery. However,the Federal activity of establishing a NWR should never be considered a substitute for the habitat mitigation requirements for the incidental take permittee that are established by the HCP. Under section 10 of the Act, an incidental take permittee is required to "minimize and mitigate"the effects of its taking of listed species and the permittee has specific conservation responsibilities within any HCP program. It must be stressed that the incidental take permittee must mitigate regardless of what is required of or carried out by other entities in terms of habitat management and protection,to the extent deemed appropriate, as defined in an approved HCP. When developing a NWR in conjunction with an HCP,the lands available to the incidental take permittee for mitigation purposes must be clearly identified in the HCP. The area targeted by the HCP for acquisition by the Service for the refuge is separate from the targeted for acquisition by the incidental take permittee to fulfill mitigation requirements. The lands acquired for mitigation purposes by the permittee could subsequently become part of the refuge and managed as such. Mitigation required by an HCP should compensate for lost habitat, whereas the establishment of the NWR in conjunction with an HCP should be complementary to the HCP, but should not be compensation for habitat lost through the HCP. With respect to this guidance,the Service's first responsibility is to promote the conservation and recovery of endangered and threatened species, whereas the responsibility of the incidental take permittee is to meet the habitat mitigation requirements of the HCP. NWRs can clearly contribute to listed species recovery where they protect large or important listed species habitat areas. Large-scale regional HCPs, such as those in the Balcones Canyonlands, TX and Washington County,UT areas, also contribute to endangered species recovery by establishing predictable, enforceable conservation programs across large areas. If one program in an area helps listed species,two different, but complementary programs working together synergistically can support species recovery needs even more. Through proper planning and design a NWR and an HCP can be integrated so that the species is conserved or recovered while, at the same time, the incident take permittee meets the mitigation requirements of the HCP. The integration of a NWR into an HCP can be accomplished, if the two are established through a coordinated effort and incorporated into the initial planning processes for the HCP. However, this is true only if the NWR and HCP are managed in a coordinated manner so the benefits so the benefits of both programs exceed the benefits of either program working alone. Maximum benefit for the species can be derived by cooperatively establishing a NWR that would help support a regional HCP initiative. The Federal activity of establishing a NWR, in conjunction with a HCP, does not replace the habitat mitigation requirements for the incidental take permittee. However, as part of the mitigation requirements and conditions of an HCP,permittees may purchase land specifically designated in the HCP,that eventually could become part of the NWR and be managed as such, if the plan is properly �,.� coordinated and planned. Many factors can affect how Federal and private habitat protection efforts should be coordinated, and what is appropriate in one situation may not be appropriate in another. We believe the principles outlined above--adherence to the provisions of the HCP (particularly the mitigation requirement), adherence to the NWR's purpose, and cooperative efforts to increase the benefits to the species--should provide the basis for any future decisions of this type. The following two examples (i.e., independent project and complementary project)represent different relationships between NWRs and HCPs and illustrate why these relationships need to be defined on a case-by-case basis. Independent Project: An HCP for the Balcones Canyonlands in Travis County, TX was initiated in 1988 to address the conservation needs of the golden-cheeked warbler, black- capped vireo, and several cave invertebrates. The draft Balcones HCP calls for acquisition by the permittee of approximately 30,500 acres of warbler and vireo habitat. Of this area, 22,000 acres has already been acquired. Meanwhile, in 1991,the Service decided to establish the Balcones Canyonlands NWR in the same vicinity as the Balcones HCP. The environmental assessment for the project, completed in December 1991,projected a 41,000-acre Refuge (an additional 5,000 acres was later authorized). The area targeted for refuge acquisition was separate from the area targeted by the HCP acquisition. A potential conflict arose when a developer proposed to purchase private lands inside the Balcones NWR acquisition boundary for use as mitigation lands for development activities in the Balcones HCP area. The issue was whether the Service should accept private lands purchased inside the Refuge boundary as mitigation lands for purposes of the HCP. Planners for both the HCP and NWR envisioned that the two programs would be independent with respect to land acquisition (i.e., Refuge acquisition would not occur in targeted HCP reserves and vice versa). The Golden-cheeked Warbler Recovery Plan, approved September 1992, divides the warbler's range into eight "recovery regions" and requires protection of sufficient breeding habitat to maintain a viable warbler population in each of these regions. Habitat areas targeted for acquisition under the Balcones HCP and NWR are in the same recovery plan region and both are necessary for fulfillment of the recovery goal for that region. This means that acquiring habitat independently under the two programs will best achieve golden-cheeked warbler recovery. Allowing"cross over,"or purchase inside the Refuge boundary by private developers, may ultimately slow or decrease progress toward recovery. Based on these considerations,the Service did not allow land procurement for HCP mitigation purposes inside the boundary of the Balcones NWR and maintained the independence of the two programs. This does not mean that land purchases inside the Refuge boundary by private entities cannot occur, only that such purchases would not count toward the mitigation goals under the HCP. Complementary Project: A complementary agreement is currently being developed between the Service and the private sector through the establishment of a NWR and an HCP in southern California. The goal of this specific HCP is to conserve 87 listed and non-listed species within a 164,000 acre preserve in southern San Diego County. To accomplish this goal, the Service has �.. entered into the preserve process both in its Federal capacity and as a partner. The Service has committed funds, land, and personnel to the planning and implementation process of the preserve. The Federal government's contribution to the San Diego habitat protection effort will include a variety of activities. In addition to participation with the local communities on developing a Multiple Species Conservation Planning(MSCP) effort,the Federal government will also be a land manager. Lands currently administered by the Bureau of Land Management(BLM)will become a part of the overall habitat preserve. The Service is planning to establish the San Diego National Wildlife Refuge, and lands that would be acquired with LWCF or other sources within the San Diego NWR boundary,which partially overlays the proposed preserve,will become part of the NWR. The Federal activities associated with establishment, acquisition and management of the NWR, in conjunction with San Diego's HCP,will not replace the mitigation requirements of incidental take permittees in the HCP. The expectation is that the overall preserve will consist of a mosaic of ownerships, including land acquired by the HCP incidental take permittees, local governments, State resource agencies, and the Federal government, including the Service. The approved refuge boundary would also likely consist of a mosaic of ownerships. BLM lands within the boundary may have management responsibilities transferred to the Service; State and local government agencies may enter into cooperative management agreements with the Service for management of their properties; and lands acquired by other entities to meet mitigation requirements of the HCP for off-site development may also be included. Entities may enter into mitigation banking agreements with the Service by purchasing lands within the refuge boundary,transferring title to the Service for management and credit for future mitigation needs, under an approved HCP or other agreements. The area will also contain inholdings of privately-owned lands, some of which may be contributed to the preserve as mitigation for on-site land disturbances. The Service will prioritize the private land holdings within the refuge boundary and seek to purchase lands or conservation easements from willing sellers as funding is available. The NWR will also focus on providing connecting links between habitats protected through the overall HCP/refuge preserve. These links are essential for the MSCP and for the conservation of the whole ecosystem upon which the threatened and endangered species depend. When Congress enacted the HCP provisions into law in 1982, it stressed the need for developing "creative partnerships" between the public and private sector in resolving endangered species issues, especially on private lands. We believe that establishing and managing NWRs within the vicinity of HCP planning areas based on the principles outlined above is consistent with the intent of the HCP process and the Service's mission to protect and recover federally listed species. APPENDIX 7: Safe Harbor Policy AMIM Thursday June 12, 1997 mmIMMIllIIIMIIII ININI 111 NM AIM 'Mk NIMENIN N M NM NMIIIIIIIII M▪I I M..-.▪ .== MN MN 11MII =I IMV =I 1111/ .1ill 11 ffil .= 1111 M11•11=E MNINIIMM 1I . OIMII• NMI 41M.omou 111• ,11111k =111=1 / 11MI MEI MIN 11= IM▪IININ IIMINIF E▪n M▪a Im IMMI Part III Department of the Interior =▪lk UM MN 1M=. 11.riMiN =MB NOM Fish and Wildlife Service S INIMM IMMINIIMI Department of NMIM Commerce National Oceanic and Atmospheric -? Administration 50 CFR Parts 13 and 17 Announcements: Draft Safe Harbor Policy IIMMNI and Candidate Conservation Agreements Draft Policy, Notices; and Safe Harbor and Candidate Conservation Agreements; Proposed Rule 1M1 IMI 1 32177 32178 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices DEPARTMENT OF THE INTERIOR DATES:Comments on the draft policy species,some are still concerned about !'� must be received by August 11, 1997. additional land-use or resource-use Fish and Wildlife Service ADDRESSES:Send any comments or restrictions that may result if listed DEPARTMENT OF COMMERCE materials concerning the Draft Safe species colonize their property or Harbor Policy to the Chief,Division of increase in numbers or distribution National Oceanic and Atmospheric Endangered Species,U.S.Fish and because of their conservation efforts. Administration Wildlife Service, 452 ARLSQ, Concern centers on the applicability of Washington,D.C.20240 (Telephone the Act's section 9"take"prohibitions Announcement of Draft Safe Harbor 703/358-2171,Facsimile 703/358-1735) if listed species occupy their property Policy You may examine comments and and on future property-use restrictions materials received during normal that may result from their conservation- AGENCY:Fish and Wildlife Service, business hours in room 452,Arlington oriented property management actions. Interior;National Marine Fisheries Square Building,4401 North Fairfax The potential for future land-or Service,NOAA,Commerce. Drive,Arlington,Virginia.You must resource-use restrictions has led ACTION:Announcement of draft policy; make an appointment to examine these property owners to avoid or limit request for public comments. materials. property management practices that FOR FURTHER INFORMATION CONTACT:E. could enhance or maintain habitat and SUMMARY:The Fish and Wildlife Service LaVerne Smith,Chief,Fish and Wildlife benefit or attract fish and wildlife that and the National Marine Fisheries Service,Division of Endangered Species are currently Federally listed as Service (Services) announce a joint Draft (Telephone(703)358-2171) or Nancy endangered or threatened. Safe Harbor Policy under the Chu,National Marine Fisheries Service, A fundamental purpose of section 2 of Endangered Species Act of 1973,as Chief,Endangered Species Division the Act,is to conserve the ecosystems amended(Act).Many endangered and (Telephone (301) 713-1401). upon which endangered and threatened species depend and to conserve listed threatened species occur exclusively or SUPPLEMENTARY INFORMATION: species.Section 9 of the Act prohibits to a large extent upon privately owned property;the involvement of the private Background the"take"of listed fish and wildlife species,which is defined in section sector in the conservation and recovery Much of the nation's current and 3(18)to include,among other things, of species is critical to the eventual potential fish and wildlife habitat is on killing,harming or harassing.The Act's success of these efforts.This policy non-Federal property,owned by private implementing regulations(50 CFR 17.3), would provide incentives for private citizens,States,municipalities,Native as promulgated by the FWS,define and other non-Federal property owners American Tribal governments,and other "harm"to include"significant habitat to restore,enhance or maintain habitats non-Federal entities. Conservation modification or degradation where it for listed species.Either Service,or the efforts on non-Federal property are actually kills or injures wildlife by Services jointly,will closely coordinate critical to the survival and recovery of significantly impairing essential with the appropriate State agencies and many endangered and threatened behavioral patterns,including breeding, any affected Native American Tribal species.The Services strongly believe feeding and sheltering." Regulations in governments before entering into Safe that a collaborative stewardship 50 CFR 17.31 extend the prohibition Harbor Agreements (Agreements). approach to the proactive management against take to threatened fish and Under the policy,either Service,or the of listed species involving government wildlife species.Consequently,property Services,jointly,would provide agencies (Federal,State,and local) and owners whose properties support participating property owners with the private sector is critical to achieving endangered or threatened species could technical assistance in the development the ultimate goal of the Endangered violate section 9 of the Act if the of Agreements and would provide Species Act(Act).The long-term property owners significantly develop, assurances that additional land-use or recovery of certain species can benefit modify,or manage those properties in a resource-use restrictions as a result of from short-term and mid-term way that causes harm to listed species. their voluntary conservation actions to enhancement,restoration,or The Services'draft Safe Harbor Policy benefit covered species would not be maintenance of terrestrial and aquatic encourages property owners to imposed.If the Agreement provides a habitats on non-Federal property. voluntarily conserve threatened and net conservation benefit to the covered Many property owners are willing to endangered species without the risk of species and the property owner meets voluntarily manage their property to further restrictions pursuant to section all the terms of the Agreement,the benefit listed fish and wildlife,provided 9.Previously the FWS has provided safe Services would authorize the incidental that such actions do not result in new harbor type assurances to non-Federal taking of the covered species to enable restrictions being placed on the future property owners based on various the property owner to ultimately return use of their property.Beneficial authorities under the Act,including the enrolled property back to agreed management could include actions to incidental take statements under section upon baseline conditions.The Services enhance,restore,or maintain habitat 7(a)(2) and incidental take permits seek public comment on the draft (e.g.,restoring fire by prescribed under section 10(a)(1)(B).After further policy.Additionally,the Fish and burning,restoring hydrological consideration of such alternatives and Wildlife Service (FWS) has published in conditions),so that it is suitable for other provisions of the Act,the Services today's Federal Register a proposed rule listed species.Such proactive have determined that the section that contains the necessary regulatory management actions cannot be 10(a)(1)(A) "enhancement of survival" changes to implement this policy.The mandated or required by the Act.Thus, permit provisions of the Act provide the Services also seek public comment on failure to conduct habitat enhancement best mechanism to carry out the Safe the appropriateness of allowing a or restoration activities would not Harbor Policy and provide the necessary �.� property owner to enter into a Safe violate any of the Act's provisions. assurances for participating property Harbor Agreement in conjunction with Although property owners recognize the owners while also providing a Habitat Conservation Plan(HCP) benefits of proactive habitat conservation benefits to the covered under section 10(a)(1)(B) of the Act. conservation activities to help listed species.Assurances already provided by Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices 32179 the FWS under sections 7 or 10(a)(1)(B) property-use restrictions,if these efforts under all circumstances.In particular, would still be valid,and revision of attract listed species onto their in situations when property owners are /\ those proactive Agreements is properties,or areas affected by actions seeking immediate take authorization, unnecessary.The Services are undertaken on their property,or development of a Habitat Conservation developing this policy to provide increase the numbers or distribution of Plan (HCP) and issuance of an national consistency in the development listed species already present on their incidental take permit under section of Safe Harbor Agreements and link the properties.These voluntary Agreements 10(a)(1)(B)would be more appropriate. policy to an expanded enhancement of will be developed between,either Safe Harbor Agreements are also not survival permit program through section Service,or the Services jointly,and appropriate in situations that do not 10(a)(1)(A) of the Act. private and other non-Federal property meet the net conservation benefit The FWS's proposed regulatory owners.The Services will closely standards of this policy.For example, changes necessary to implement this coordinate development of these where either Service or the Services draft policy were published in today's Agreements with the appropriate State jointly,reasonably anticipate that a Federal Register.The proposed rule fish and wildlife or other agencies and proposed Agreement would only provides the FWS's procedures to any affected Native American Tribal redistribute the existing population of a implement the Safe Harbor Policy as governments.Collaborative stewardship listed species or attract a species away well as other changes to Parts 13 and 17. with State fish and wildlife agencies is from a habitat that enjoys long-term The National Marine Fisheries Service particularly important given the protection to a habitat without such will develop and propose regulatory partnerships that exist between the protection,the Services would not enter changes to implement this policy at a States and the Services in recovering into the Agreement.As another later date. listed species.Under a Safe Harbor example,where a species is so depleted Draft Safe Harbor Policy Agreement,participating property or its habitat so degraded that some owners would voluntarily undertake improvement over baseline conditions Part 1.Purpose management activities on their property is necessary to result in a net to enhance,restore,or maintain habitat conservation benefit,a Safe Harbor Because many endangered and species occur exclusively, to benefit Federally-listed species. Agreement may not be appropriate.For to a threatenede extent,upon owned,or Safe Harbor Agreements may be instance,certain aquatic,riverine,and/ property,extthe involvement,uponprivatelyot the private initiated by property owners,or,either or riparian species may present a Service or the Services jointly,may take challenge in reaching a net conservation sector in the conservation and recovery the initiative on their own or in concert benefit since returning to the baseline of species is critical to the eventual with other Federal or State agencies to conditions could have serious negative success of these efforts.Private property encourage property owners to effects and would negate or outweigh owners are willing to be partners in the voluntarily enter Safe Harbor the benefits achieved through the conservation and recovery of fish, Agreements for a given area,particularly Agreement.In these cases,if a net wildlife,and plant species and their when many non-Federal parcels of conservation benefit cannot be achieved e'''\ habitats.However,property owners property are involved.Either Service or after taking into consideration the return often are reluctant to undertake the Services jointly,will work with the to the baseline conditions,the Services proactive activities that increase the participating landowner in the will not enter into a Safe Harbor likelihood or extent of use of their development of their permit application Agreement unless the Services and the properties by endangered and and the Safe Harbor Agreement.The property owner agree to appropriate threatened species,due to fear of future Services will provide the necessary conditions that provide such a benefit. additional property-use restrictions. technical assistance to the landowner in Availability of resources will also be Safe Harbor Agreements are a means of developing mutually agreeable a governing factor for the Services.The providing an incentive to property management actions that the landowner Services expect the interest in Safe owners to restore,enhance,or maintain is willing to voluntarily undertake or Harbor Agreements to rise and the habitats resulting in a net conservation forgo that will provide a net demand for technical assistance to benefit to endangered and threatened conservation benefit and help the property owners to increase.Safe species.Although such Agreements may landowner describe how these activities Harbor Agreements are developed using not permanently conserve such habitats, will benefit covered species. limited funds appropriated for recovery they nevertheless offer important short- Development of an acceptable permit activities.Priority will,therefore,be term and mid-term conservation application and an adequate Safe Harbor given to Agreements that provide the benefits.These net conservation benefits agreement is intricately linked. Either greatest contribution to the recovery of may result from reduction of Service or the Services jointly will multiple listed species.Another fragmentation and increasing the process the participating landowner's governing factor will be whether there is connectivity of habitats,maintaining or permit application following the Safe sufficient information to develop sound increasing populations,insuring against Harbor permitting process as described conservation measures.The Services catastrophic events,enhancing and in Title 50 of the Code of Federal will work with State,Tribal,and other restoring habitats,buffering protected Regulations Part 17.During this process interested parties to fill information areas,and creating areas for testing and all parties to the Agreement will work gaps for species requirements that have implementing new conservation in close coordination in the not been adequately documented in the strategies. development of the Agreement to ensure scientific literature. The purpose of the Safe Harbor Policy that measures included in the agreement is to ensure consistency in the are consistent with the terms and Part 2. Definitions development of Safe Harbor conditions of the permit.Once the The following definitions apply for Agreements.Safe Harbor Agreements permit is issued the parties to the the purposes of this policy. encourage proactive species Agreement can finalize and sign the "Baseline conditions"for covered r.• conservation efforts by private and other Agreement. species means population estimates and non-Federal property owners while The Services recognize that Safe distribution (if available or providing certainty relative to future Harbor Agreements are not appropriate determinable) and/or habitat 32180 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices characteristics of enrolled property that owner to alter or modify enrolled the maintenance,restoration or sustain seasonal or permanent use,at property,even if such alteration or enhancement of habitats;increase in the time the Safe Harbor Agreement is modification will result in the habitat connectivity;maintenance or executed between either Service or the incidental take of a listed species that increase of population numbers or Services jointly and the property owner. would return the species back to the distribution;reduction of the effects of "Covered species"means a species originally agreed upon baseline catastrophic events;establishment of that is the intended subject of a Safe conditions.Such assurances may apply buffers for protected areas;and Harbor Agreement.Covered species are to whole parcels,or portions thereof,of establishment of areas to test and limited to species that are Federally the property owner's property as develop new and innovative listed as endangered or threatened. designated in the Agreement.These conservation strategies.The Services "Enhancement of Survival Permit" assurances are dependent upon believe a"net conservation benefit"test means a permit issued under the compliance with the property owners' is necessary to justify the issuance of an authority of section 10(a)(1)(A) of the obligations in the Agreement and in the enhancement of survival permit under Act. enhancement of survival permit. section 10(a)(1)(A) of the Act.The "Enrolled property"means all private contribution to the recovery of listed or non-Federal property or waters Part 3. Cooperation and Coordination species by Safe Harbor Agreements must covered by a Safe Harbor Agreement to With the States and Tribes be evaluated carefully,since realized which safe harbor assurances apply and Coordination with the appropriate benefits from these agreements will be on which incidental taking is authorized State agencies and any affected Tribal affected by the duration of the under the enhancement of survival governments is critical for the success of Agreement. permit. the Services'collaborative stewardship The Services believe that there are "Management activities"are approach to recovery through these Safe many listed species that will benefit voluntary conservation actions to be Harbor Agreements,which is the from management actions carried out for undertaken by a property owner that underlying principle of the Safe Harbor the duration of Safe Harbor Agreements either Service or the Services jointly Policy.Coordination among the State even if there is a return to baseline believe will benefit the status of the fish and wildlife agencies,Tribal conditions.Returning the habitat or covered species. governments,the Services,and the population numbers to the baseline "Net conservation benefit"means the property owners are key to effectively conditions must be possible without cumulative results of the management implementing a successful Safe Harbor negating the net conservation benefit activities identified in an Agreement Agreement.This coordination allows provided by the Agreement.If this net that provide for an increase in a species' the special local knowledge of all conservation benefit standard cannot be population and/or the enhancement, appropriately affected entities to be met,then the Services will not enter restoration or maintenance of covered considered in the Agreements.The i-. species'suitable habitat within the Services will work in close partnership into the Agreement.For example,where enrolled property,taking into account with State agencies on matters involving the Services reasonably anticipate that a the length of the Agreement and the the distribution of materials describing Proposed Agreement would only incidental taking allowed by the permit. the Safe Harbor Agreement policies and redistribute the existing population of a Net conservation benefits must be programs,the determination of listed species or attract a species away sufficient to contribute to the recovery acceptable baseline conditions and from a habitat that enjoys long-term of the covered species if undertaken by development of appropriate monitoring protection to a habitat without such other property owners similarly situated efforts.Because of the Services'trust protection,the Services would not enter within the range of the covered species. responsibilities,the Services will also into the Agreement.Aquatic,riverine, "Property owner"includes,but is not closely coordinate and consult with any and/or riparian species may present an limited to,private individuals, affected Tribal government which has a additional challenge in reaching a net organizations,businesses,Native treaty right to any fish or wildlife conservation benefit since returning to American Tribal governments,State and resources covered by a Safe Harbor the baseline conditions could have a local governments,and other non- Agreement. serious negative effect and would negate Federal entities. or outweigh the benefits achieved Safe Harbor Agreement"means an Part 4. Species Net Benefit From Safe through the Agreement.In these cases, Agreement signed by either Service,or Harbor Agreements if a net conservation benefit cannot be both Services jointly and a property Before entering into any Safe Harbor achieved,and still allow for the return owner and any other cooperator,if Agreement,either Service,or the to the baseline conditions,the Services appropriate,that: (a) Sets forth specific Services jointly,must make a written will not enter into a Safe Harbor management activities that the private finding that all covered species would Agreement. or non-Federal property owner will receive a net conservation benefit from Part 5. Standards for and Development voluntarily undertake or forgo that will management actions undertaken of a Safe Harbor Agreement and Permit provide a net conservation benefit to pursuant to the Agreement.Net Issuance Under Section 10(a)(1)(A)of covered species;and(b) provides the conservation benefits must contribute to the Act property owner with the Safe Harbor the recovery of the covered species. assurances described within the Although a Safe Harbor Agreement does A property owner may obtain a permit Agreement and authorized in the not have to provide permanent to incidentally take a listed species of enhancement of survival permit. conservation for enrolled property, fish and wildlife above the agreed upon "Safe Harbor Assurances"are Agreements must nevertheless be of baseline conditions of the Safe Harbor assurances provided in the Agreement sufficient design and duration to Agreement,if the Agreement satisfies and authorized in the enhancement of provide a net conservation benefit to all the following requirements: .".. survival permit for covered species,by covered listed species. The Agreement must— either Service,or both jointly,to a non- Conservation benefits from Safe (1) Specify the species and/or habitats Federal property owner.These Harbor Agreements may include and identify the enrolled property assurances would allow the property reduction of habitat fragmentation rates; covered by the Agreement; Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices 32181 (2) Describe the agreed upon baseline above).Either Service or the Services the Agreement will not"jeopardize the conditions for each of the covered jointly,or appropriate State or Tribal continued existence"of listed plants.In '' species within the enrolled property; agencies,with the concurrence of the the interest of conserving listed plants (3)Identify management actions that participating property owner,will and complying with their would accomplish the expected net describe the baseline conditions for the responsibilities under section 7,either conservation benefits to the species and enrolled property in terms appropriate Service or the Services jointly,may the agreed upon timeframes for these for the covered species such as:number negotiate with the property owner to management actions to remain in effect and location of individual animals,if voluntarily assist the Services in in order to achieve the anticipated net available or determinable;necessary restoring or enhancing listed plant conservation benefits; habitat characteristics that support the habitats present within the enrolled (4) Describe the anticipated results of species covered by the Agreement;and property. the management actions and any other appropriate attributes.On-site (C) Future Section 7 Considerations and incidental take associated with the inspections,maps,aerial photographs, Assurances management actions; remote sensing,or other similar means (5) Incorporate a notification can help determine baseline conditions. Before entering into a Safe Harbor requirement,where appropriate and To the extent determinable,the parties Agreement,the either Service or the feasible,to provide either Service,or to the Agreement must identify and Services jointly,must conduct an intra- Services jointly,or appropriate State agree on the level of occupation Service section 7 review. During that agencies with a reasonable opportunity (permanent or seasonal) by covered process,either Service or the Services to rescue individual specimens of a species on the enrolled property.For jointly,must determine that future covered species before any authorized species that are extremely difficult to property use changes within the incidental taking occurs; survey and quantify,an estimate or an enrolled property and incidental take (6) Describe the nature of the expected indirect measure (e.g.,number of consistent with the established baseline incidental take upon termination of the suitable acres of habitat needed to conditions will neither jeopardize listed Agreement(i.e.,back to baseline sustain a member of the species)is species of fish and wildlife or plants, conditions); acceptable. Either Service or the nor destroy or adversely modify critical (7) Satisfy other requirements of Services jointly,will develop the habitat at the time of signing the section 10 of the Act;and estimate following a protocol agreed Agreement.If a future Federal nexus to (8) Identify the responsible parties upon by all parties to the Agreement. the enrolled property prompts the need that will monitor maintenance of Baseline conditions are then set,based for a section 7 review and take of the baseline conditions,implementation of upon the agreed upon measurements or listed species above the baseline terms and conditions of the Agreement, estimates.Either Service or the Services conditions is likely,either Service or the and any incidental take as authorized in jointly,the property owner or the Services jointly,will issue a non- the permit. property owner and any other jeopardy biological opinion and ,•'"\ Issuance of a Safe Harbor permit by appropriate agency or government incidental take statement to the Federal the Services is subject to consultation acting in cooperation with either action agency.As required by section 7 under the intra-Service consultation Service or the Services jointly,may and its implementing regulations,either provisions of section 7 of the Act. determine the baseline conditions. Service or the Services jointly,will also Part 6.Baseline Conditions When either Service does not directly provide the Federal agency with determine the baseline conditions,they reasonable and prudent measures that Either Service,or the Services jointly, must review and concur with the are necessary or appropriate to the property owner,and any other determination before entering into an minimize the effects of the action.Those cooperator(s) must accurately describe Agreement. Formulation of baseline measures will only require the baseline conditions for the property conditions can incorporate information implementation of the same terms and and species covered by the Safe Harbor provided by the property owner,any conditions provided to the participating Agreement to ensure that the Agreement other appropriate agency,or species landowner in his/her Safe Harbor will not reduce current protection for experts,as appropriate. Agreement and associated 10(a)(1)(a) covered species that presently may use permit.This approach is warranted and the enrolled property,or result in (B) Plants consistent with section 7 consultation additional restrictions for such species The Act's"take"prohibitions procedures because the effects of any beyond the baseline conditions.The generally do not apply to listed plant incidental take consistent with the baseline conditions must reflect the species on private property.Therefore, established baseline conditions would known biological and habitat the incidental take assurances provided have been previously considered during characteristics that are necessary to in this policy are usually not necessary the Services'intra-agency section 7 support existing levels of use of the for listed plant species.However,the review for the proposed Agreement. property by species covered in the Services strongly encourage and often Agreement. However,in light of enter into Agreements with non-Federal Part 7.Assurances to Property Owners circumstances beyond the control of the property owners to restore and enhance A property owner who enters an property owner(e.g.,loss of nest trees habitats for listed plants. Agreement and wishes to return due to storm damage),the parties to the Either Service or the Services jointly, enrolled property to the baseline Agreement may revise the baseline must review the effects of their own conditions would need to show that the conditions to reflect the new actions(e.g.,issuance of a permit) on agreed upon baseline conditions were circumstances and may develop a new listed plants,even when those plants maintained and that activities identified baseline upon which all parties agree. are found on private property under in the Agreement as necessary to section 7 of the Act.In approving an achieve the net conservation benefit (A) Determining the Baseline Conditions enhancement of survival permit and were carried out for the duration of the This Policy requires a full description entering into a Safe Harbor Agreement, agreement.If the property owner carried i of baseline conditions for any species either Service or the Services jointly, out the management actions and covered in an Agreement (see Part 5 must also confirm under section 7 that complied with the permit and the 32182 Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices Agreement conditions,the property Environmental Assessment(EA),or conditions for the enrolled property /-"N owner would be authorized to utilize Environmental Impact Statement(EIS), under consideration. his/her property in a manner which depending on the effects of their Part 11.Property Owner Discretion returns the enrolled property to baseline proposed action. conditions. Either Service or the Services jointly, Nothing in this policy prevents a Part 8. Occupation by Non-Covered or will review each permit action for other participating property owner from Newly Listed Species significant environmental,economic, implementing management actions not social,historical or cultural impact,or described in the Agreement,so long as After an Agreement is signed and an for significant controversy(516 DM 2, such actions maintain the baseline enhancement of survival permit isAppendix 2 for FWS and NOAA's conditions. Either Service or the issued,a species not addressed in the Environmental Review Procedures and Services jointly,will provide technical Agreement may occupy enrolled NOAA Administrative Order Series advice,to the maximum extent property.If either Service or the 216-6).If either Service or the Services practicable,to the property owner when Services jointly,conclude that the jointly,expect that significant impact requested. species is present as a direct result of could occur,the issuance of apermit the property owner's conservation Part 12.Discretion of All Parties actions taken under the Agreement, would require preparation of an EA or Nothing in this policy compels any EIS. General guidance on when the art to enter a Safe Harbor Agreement either Service or the Services,will: Services exclude an action categorically party g (1)At the request of the property and when and how to prepare an EA or at any time. Entering a Safe Harbor owner,amend the Agreement to reflectEIS is found in the FWS's Agreement is voluntary and presumes the changed circumstances and revise that the Agreement will serve the Administrative Manual (30 AM 3) and the baseline condition description,as NOAA Administrative Order Series interests of all affected parties.Unless appropriate;and specifically noted,an Agreement does 216-6.If a Safe Harbor Agreement/ (2) Review and revise the permit,as permit is not expected to individually or not otherwise create or waive any legal applicable,to address the presence of cumulatively have a significant impact rights of any party to the Agreement. additional listed species on enrolled on the quality of the human Part 13. Scope of Policy property. environment,then the Agreement/ Assurances in the permit may not This policy applies to all federally- necessarily be extended to a non- permit may be categorically excluded. listed species of fish and wildlife covered species if the species was Part 10. Transfer of Ownership administered by either Service or the specifically excluded from the original Services jointly,as provided in the Act Agreement as a result of the If a property owner who is party to a and its implementing regulations. participating property owner's request, Safe Harbor Agreement transfers ,.....\ or its presence is a result of activities ownership of the enrolled property, Required Determinations not directly attributable to the property either Service or the Services,will A major purpose of this proposed regard the new owner as having the policy is the facilitation of voluntary owner.In these cases,enhancement or P Y maintenance actions that are specific to same rights and obligations with respect cooperative programs for the proactive the non covered species under to the enrolled property as the original management of non-Federal lands and consideration must be developed,and property owner if the new property waters for the benefit of listed species. baseline conditions determined that will owner agrees to become a party to the From the Federal Government's provide a net conservation benefit to original Agreement.Actions taken by perspective,implementation of this the new participating property owner policy would result in minor that species. P Y Any substantial change to a Safe that result in the incidental take of expenditures (e.g.,providing technical Harbor Agreement or a revision to an species covered by the Agreement assistance in the development of site- enhancement of survival permit because would be authorized if the new property specific management plans).The of non-covered species would be subject owner maintains the baseline benefits derived from such management to the same review process(i.e.,section conditions.The new property owner, actions on non-Federal lands and waters 7 of the Act or public review) as the however,would neither incur would significantly advance the original Safe Harbor agreement and responsibilities under the Agreement recovery of listed species.Non-Federal enhancement of survival permit. nor receive any assurances relative to program participants would be provided section 9 restrictions from the regulatory certainty as a result of their Part 9.National Environmental Policy Agreement unless the new property voluntary management actions.In some Act Compliance owner becomes a party to the cases,such participants may incur The National Environmental Policy Agreement. minor expenditures to carry out some Act of 1969 (NEPA),as amended,and A Safe Harbor Agreement must management actions on their lands or the regulations of the Council on commit the participating property involving their water.The Services have Environmental Quality(CEQ) require all owner to notify the Services of any determined that the proposed policy Federal agencies to examine the transfer of ownership at the time of the would not result in significant costs of environmental impact of their actions, transfer of any property subject to the implementation to the Federal to analyze a full range of alternatives, Agreement.This will allow the Services Government or to non-Federal program_ and to utilize public participation in the to contact the new property owner to participants. planning and implementation of their explain the prior Safe Harbor Agreement The Director of the Fish and Wildlife actions.The purpose of the NEPA and to determine whether the new Service certified to the Chief Counsel for process is to help Federal agencies make property owner would like to continue Advocacy of the Small Business better decisions and to ensure that those the original Agreement or enter a new Administration that a review under the �.� decisions are based on an understanding Agreement.When a new property owner Regulatory Flexibility Act of 1980 (5 of environmental consequences.Federal continues an existing Safe Harbor U.S.C.601 et seq.) has revealed that this agencies can satisfy NEPA requirements Agreement,either Service or the policy would not have a significant by either a Categorical Exclusion, Services jointly,will honor the baseline effect on a substantial number of small Federal Register / Vol. 62, No. 113 / Thursday, June 12, 1997 / Notices 32183 entities,which includes businesses, activities that would enhance listed DEPARTMENT OF THE INTERIOR organizations,or governmental species populations above their /"'\ jurisdictions.Because of the completely mitigation obligations under an Fish and Wildlife Service voluntary nature of the Safe Harbor incidental take permit or HCP.The program,no significant effects are Services are interested in ideas, DEPARTMENT OF COMMERCE expected on non-Federal cooperators comments,and suggestions on this National Oceanic and Atmospheric exercising their option to enter into a concept.The Services also are Administration Safe Harbor Agreement.Therefore,this requesting ideas,comments or policy would have minimal effect on suggestions on how to delineate the Announcement of Draft Policy for such entities. baseline conditions for a Safe Harbor Candidate Conservation Agreements This policy has been determined to be Agreement that is linked to an HCP not significant for purposes of Executive g AGENCY: Fish and Wildlife Service, Order 12866.Therefore,it was not incidental take permit.After Interior;National Marine Fisheries subject to review by the Office of consideration of all comments received Service,NOAA,Commerce. Management and Budget. on this question,the Services will ACTION:Announcement of draft policy; The Services have determined and decide whether it is appropriate to request for public comments. certify pursuant to the Unfunded utilize Safe Harbor Agreements in Mandates Act,2 U.S.C. 1502 et seq.,that connection with HCPs. SUMMARY:The Fish and Wildlife Service this proposed policy will not impose a If the Services decide that it is and the National Marine Fisheries cost of$100 million or more in any appropriate to provide these assurances Service(Services) announce a joint Draft given year on local or State governments Policy for Candidate Conservation to incidental take permittees,the Agreements (Agreements) under the or private entities.The Departments Services will publish a proposed policy Endangered Species Act of 1973,as have determined that these proposed on how best toprovide such assurances. g p policy meets the applicable standards amended(Act).This policy would provided in sections 3(a) and 3(b)(2) of In addition,situations may arise provide incentives for private and other Executive Order 12988. where a property owner may want to non-Federal property owners,and State The Services have examined this recover or conserve numerous species, and local land managing agencies,to proposed policy under the Paperwork both listed and unlisted on their restore,enhance,or maintain habitats Reduction Act of 1995 and found it to property,and may want to enter into for proposed,candidate and certain contain no requests for additional both a Safe Harbor Agreement and a other unlisted species.Candidate information or increase in the collection Candidate Conservation Agreement.The Conservation Agreements would be requirement other than those already Services are also seeking comments,and developed by participating property approved under the Paperwork are interested in ideas and suggestions owners or State or local land managing Reduction Act of 1995 for incidental on the ways to streamline and combine agencies to remove the need to list the f'1 take permits with OMB approval#1018- these processes when developing these covered species as threatened or 0022 which expires July 31, 1997.Thetwo types of agreements with the same endangered under the Act.The Services Service requested renewal of the OMB property owner. will coordinate closely with the approval and in accordance with 5 CFR appropriate State agencies and any 1320 will not continue to collect the The Services will take into affected Native American Tribal information,if the approval has expired, consideration the comments and any governments before entering into until OMB approval has been obtained. additional information received by the Candidate Conservation Agreements The Department has determined that Services by August 11, 1997.To ease with property owners to conserve the issuance of the proposed policy is review and consideration of submitted covered species. categorically excluded under the comments,the Services prefer that Under this policy,either Service,or Department of Interior's NEPA reviewers organize their comments by the Services jointly,would provide procedures in 516 DM 2,Appendix part(e.g.,Part 1.Purpose,Part 2. participating property owners and State 1.10.NMFS concurs with the Definitions,and linking Safe Harbor and local land managing agencies with Department of Interior's determination Agreements with HCP permits). technical assistance in the development that the issuance of the proposed policy Dated:May 27, 1997. of Candidate Conservation Agreements qualifies for a categorical exclusion and and would provide assurances that, if falls within the categorical exclusion John G.Rogers, covered species are eventually listed, criteria in NOAA 216-3 Administrative Acting Director,Fish and Wildlife Service. the property owners or agencies would Order,Environmental ReviewDated:June 2, 1997. not be required to do more than those Procedure. actions agreed to in the Candidate Rolland A.Schmitten, Conservation Agreement.If a species is Public Comments Solicited Assistant Administrator for Fisheries, listed,incidental take authorization The Services request comments on National Oceanic and Atmospheric would be provided to allow the property their Draft Safe Harbor Policy. Administration. [FR Doc.97-15250 Filed 6-9-97; 1:26 owner or agency to implement Particularly sought are comments on thepm] management activities that may result in procedures or methods for enhancing BILLING CODE 4310-55-P take of individuals or modification of the utility of the Safe Harbor Policy in habitat consistent with those levels carrying out the purposes of the Act. agreed upon and specified in the The Services also are interested in the Agreement. views of interested parties on the Published concurrently in this appropriateness of linking"Safe Federal Register are the Fish and Harbor"Agreements to incidental take Wildlife Service's (FWS) proposed permits issued under section 10(a)(1)(B) regulations necessary to implement this "--\ of the Act.In certain situations,HCP policy.The Services seek public permittees might be willing to conduct comment on this proposed draft policy. APPENDIX 8: Example of an Integrated HCP/EA Environmental Assessment/ Habitat Conservation Plan for Issuance of an Endangered Species Section 10(a)(1)(B) Permit for the Incidental Take of the Golden-cheeked Warbler(Dendroica chrysoparia) for Construction of a Single Family Residence on _acres on (LOCATION),Austin,Travis County, Texas U.S. Fish and Wildlife Service Ecological Services 10711 Burnet Road, Suite 200 Austin,Texas 78758 (DATE) COVER SHEET Title for Proposed Action: Issuance of Endangered Species Act section 10(a)(1)(B)permit allowing incidental take of the endangered golden-cheeked warbler(Dendroica chrysoparia) during construction of a single family residence on acres on(LOCATION), Austin, Travis County, Texas. Unit of Fish and Wildlife Service Proposing Action: Permits Branch, U.S. Fish and Wildlife Service, P.O. Box 329,Albuquerque,New Mexico 87103 Legal Mandate for Proposed Action: Endangered Species Act of 1973, as amended, section 10(a)(1)(B), as implemented by 50 CFR 17.22 for endangered species. Document Author: (BIOLOGIST NAME), Ecological Services, U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas 78758. n TABLE OF CONTENTS 1.0 INTRODUCTION 1 2.0 PURPOSE AND NEED FOR ACTION 1 3.0 DESCRIPTION OF THE AFFECTED ENVIRONMENT 2 3.1 VEGETATION 2 3.2 WILDLIFE 3 3.3 THREATENED OR ENDANGERED SPECIES 4 3.4 WETLANDS 4 3.5 GEOLOGY/SOILS 4 3.6 LAND USE 4 3.7 AIR QUALITY 4 3.8 WATER RESOURCES AND WATER QUALITY 5 3.9 CULTURAL RESOURCES 5 4.0 ALTERNATIVES INCLUDING THE PROPOSED ACTION 5 4.1 ALTERNATIVE 1 - PROPOSED (PREFERRED)ACTION 5 4.2 ALTERNATIVE 2 -ALTERNATE SITE LOCATION 5 4.3 ALTERNATIVE 3 -ALTERNATE SITE DESIGN 6 4.4 ALTERNATIVE 4 - WAIT ON A REGIONAL 10(a)(1)(B)PERMIT 6 4.5 ALTERNATIVE 5 -NO ACTION ALTERNATIVE 6 5.0 ENVIRONMENTAL CONSEQUENCES 6 5.1 ALTERNATIVE 1-PROPOSED (PREFERRED) ALTERNATIVE 6 5.1.1 Onsite Impacts 6 5.1.1.1 Vegetation 6 5.1.1.2 Wildlife 6 5.1.1.3 Endangered Species 6 5.1.1.4 Assessment of Take 7 5.1.1.5 Wetlands 7 5.1.1.6 Geology/Soils 7 5.1.1.7 Land Use 8 5.1.1.8 Water Resources 8 5.1.1.9 Air and Water Quality Impacts 8 5.1.1.10 Cultural Resources 8 5.1.2 Offsite Impacts 9 5.1.2.1 Vegetation 9 5.1.2.2 Wildlife 9 5.1.2.3 Endangered Species 9 5.1.2.4 Wetlands 9 5.1.2.5 Geology/Soils 9 5.1.2.6 Land Use 9 5.1.2.7 Air and Water Quality 9 5.1.2.8 Water Resources 10 5.1.2.9 Cultural Resources 10 5.1.3 Cumulative Impacts Analysis 10 5.1.3.1 Vegetation 10 5.1.3.2 Wildlife 10 5.1.3.3 Threatened or Endangered Species 10 5.1.3.4 Wetlands 11 5.1.3.5 Geology and Soils 11 5.1.3.6 Land Use 11 5.1.3.7 Air and Water Quality 11 5.1.3.8 Cultural Resources 11 5.2 ALTERNATIVE 2 -ALTERNATE SITE LOCATION 11 5.3 ALTERNATIVE 3 - ALTERNATIVE SITE LAYOUT 12 5.4 ALTERNATIVE 4 - WAIT ON THE REGIONAL 10(a)(1)(B) PERMIT 12 5.5 ALTERNATIVE 5 -NO ACTION 12 6.0 HABITAT CONSERVATION PLAN 12 6.1 AMENDMENT PROCEDURE 13 6.2 AMENDMENTS TO THE DEVELOPMENT PLANS 13 6.3 MINOR AMENDMENTS TO THE HCP 14 6.4 ALL OTHER AMENDMENTS 15 7.0 REFERENCES 16 1.0 INTRODUCTION (APPLICANT'S NAME) (Applicant)proposes to construct a single family residence on_ acres on (LOCATION),Austin, Travis County, Texas, (Figure 1). Figure 1. General location of property in Austin, Travis County, Texas. The golden-cheeked warbler(warbler) (Dendroica chrysoparia), a listed endangered song bird, has been documented to use portions of, or the immediate vicinity of the subject tract. Upon review of biological information submitted by the Applicant and other sources,the U.S. Fish and Wildlife Service (Service) has determined that the proposed development would result in an incidental take of the warbler and the Applicant has submitted the necessary 3-200 form for a permit under section 10(a)(1)(B) of the Endangered Species Act(Act) for incidental taking. This document provides the required National Environmental Policy Act(NEPA) documentation for a Federal action (section 10(a)(1)(B)permit issuance) and the components of a Habitat Conservation Plan (HCP) as mandated by section 10 of the Act. The duration of this section 10(a)(1)(B)permit(PRT- ) is for_years from the date is issuance. This allows the Applicant or their successors to take the golden-cheeked warbler within the geographic boundaries identified in the HCP over that time period. After the expiration of this permit, any"take"within the said geographic boundaries requires reauthorization. However,the term and conditions contained in the HCP do not expire and would be covered by the enforcement authority of section 11(b) of the Endangered Species Act. 2.0 PURPOSE AND NEED FOR ACTION The purpose of this Environmental Assessment/Habitat Conservation Plan (EA/HCP) is to evaluate the environmental impacts of the proposed action and alternatives of the project. The assessment is required because of the proposed issuance of a section 10(a)(l)(B) incidental take permit by the Service pursuant to the Endangered Species Act(Act) of 1973, as amended. The Applicant has submitted an application for a permit to allow the incidental take of the federally listed golden-cheeked warbler which has been documented on portions of the subject tract. The implementing regulations for section 10(a)(1)(B) of the Act, as provided by 50 CFR 17.22, specify the criteria by which a permit allowing the incidental take of listed species pursuant to otherwise lawful activities may be obtained. The purpose and need for the section 10(a)(1)(B) permit is to ensure that incidental taking resulting from the proposed development will be minimized and mitigated to the maximum extent practicable and will not appreciably reduce the likelihood of the survival and recovery of this listed species in the wild. The submission of the 10(a)(1)(B)permit application requires the development of an HCP which is designed to ensure the continued existence and aid in the recovery of the listed species while allowing for the limited, incidental take of the species during the construction and operation of the proposed project. 3.0 DESCRIPTION OF THE AFFECTED ENVIRONMENT 3.1 VEGETATION The woodlands in Travis County are generally dominated by Ashe juniper(Juniperus ashei), plateau live oak(Quercus fusiformis), Texas oak (Quercus buckleyi), cedar elm (Ulmus crassifolia), and hackberry (Celtis laevigata). Other frequent to occasional species include bumelia(Bumelia lanuginosa), Texas persimmon (Diospyros texana), elbowbush (Forestiera pubescens), yaupon(Ilex vomitoria), redbud (Cercis canadensis), rough-leaf dogwood (Cornus drummondii), and Texas mountain laurel (Sophora secundora). 2 At least one of three general woodland communities (plateaus, canyons, and ecotonal areas) exist in the project area. The plateau areas,which comprise a majority of the site, tend to be generally xeric in nature due to various geologic and surface drainage characteristics. The plateau community is typically dominated by Ashe juniper with occasional plateau live oak and shin oak (Quercus sinuata var. breviloba). The canyon areas, conversely, tend to be mesic and support a greater diversity and stature of woodland species. Ashe juniper is again usually dominant canopy species. Texas oak with mixtures of live oak, cedar elm, hackberry,Arizona walnut(Juglans major) and escarpment black cherry (Prunus serotina var. eximia). The ecotonal zone between the upper plateaus and the canyon contain a mixture of the plateau and canyon communities with Ashe juniper being dominant and occasional live oak, Texas oak, and shin oak. Grasslands in the area are vegetated predominantly with silver bluestem (Bothriochloa saccharoides), little bluestem (Schizachyrium scoparium), threeawn(Aristida sp.), buffalograss (Buchloe dactyloides), and miscellaneous herbs and forbs. 3.2 WILDLIFE Wildlife of the generally wooded areas is typified by the common woodland species of central Texas. Common bird species include northern mockingbird(Mimus polyglottos), northern cardinal (Cardinalis cardinalis), Carolina chickadee (Parus carolinensis), hermit thrush (Hylocichla guttata),tufted titmouse (Parus bicolor), black and white warbler(Mniotilta varia), and other common woodland bird species. Common mammals include the white-tailed deer (Odocoileus virginianus), raccoon (Procyon lotor), Virginia opossum (Didelphus virginiana), fox squirrel (Sciurus niger), eastern cottontail (Sylvilagus jloridanus), and nine-banded armadillo (Dasypus novemcinctus). Herpetofauna include aquatic and terrestrial reptile and amphibian species. Common reptiles include the Texas rat snake (Elaphe obsoleta),patch-nosed snake (Salvadora grahamiae), northern fence lizard(Sceloperus undulatus), and ground skink (Scincella lateralis). 3.3 THREATENED OR ENDANGERED SPECIES Within Travis County, eight vertebrate and invertebrate species are currently listed as endangered by the Service. Two bird species, the golden-cheeked warbler and the black-capped vireo (vireo) (Vireo atricapillus); and six cave-dwelling invertebrates, the Tooth Cave ground beetle (Rhadine persephone),Bee Creek Cave harvestman (Texella reddelli), Tooth Cave spider(Neoleptoneta myopica), Tooth Cave pseudoscorpion (Tartarocreagris texensis), Kretschmarr Cave mold beetle (Texamaurops reddelli), and the Bone Cave harvestman(Texella reyesi)have been placed on the federal endangered species list. 3 The six species of endangered cave invertebrates occur within a karsted geologic region known generally as the Edwards geologic formation in Travis and Williamson Counties. The subject site has been evaluated for the presence of surface karst features (caves, sinks, fissures)that might indicate the presence of subsurface voids that could support the listed karst invertebrates. No surface karst features have been located. The absence of surface karst features is generally held to indicate a low probability for the occurrence of the listed karst species. Spring breeding surveys for the black-capped vireo and the golden-cheeked warbler did not locate any black-capped vireos in the project area. However,warblers were found during surveys conducted between 1989 and 1993 in the project area. During those surveys, four warblers were observed in the canyon north of the property. The following species are Species of Concern, those for which listing under the Act may be warranted, but for which biological information is lacking. The Jollyville Plateau salamander (Eurycea spp.)has been documented in various spring outlets throughout the Jollyville Plateau region. This species has not been documented on this development site. The bracted twist-flower (Streptanthus bracteatus) and the canyon mock-orange (Philadelphus ernestii) occur in the general area of the subdivision but are not known to occur on the project site. 3.4 WETLANDS Areas subject to jurisdiction under section 404 of the Clean Water Act include those areas that fall at or below the "plane of ordinary high water" of these waterways as defined by 33 CFR 323.2. No areas of the subject tract defined as wetlands by the criteria established in the 1987 Corps of Engineers Wetland Delineation Manual have been identified on the subject tract. 3.5 GEOLOGY/SOILS The project site is underlain by the Glen Rose geologic formations of the Lower Cretaceous age. The Glen Rose formation is composed of alternating marl, dolomite, and limestone strata which frequently results in a stair-step topography due to differential erosion rates of various strata. The Glen Rose is very slowly permeable and horizontal movement of water along the hard limestone strata often results in seepages where the strata becomes exposed on hillsides. Soils on the project site are of the Tarrant Series according to the Soil Conservation Service (SCS) Soil Survey of Travis County, Texas, issued June 1974. These soils consist of shallow to very shallow,well-drained, stoney, clayey soils overlaying limestone. There are random outcrops of limestone and loose stones that cover up to 50 percent of the surface. These soils occupy the upper plateau area of the subject site,with rock outcrops not uncommon in the hilly breaks. 4 3.6 LAND USE The subject property is in an established residential subdivision bordered on the east and west by a residential development. A mature oak/juniper forested canyon lies to the north and south. The proposed project site is located in southwest Travis County, but within an area that has been experiencing urban development for the past 15 to 20 years. Past land uses have included livestock grazing, agriculture, deer hunting, and open space. In recent years, intensive urban development has encroached around much of the site. 3.7 AIR QUALITY Travis County and the Austin metropolitan area are currently full attainment areas for all air quality criteria pollutants of the Environmental Protection Agency (EPA) and Texas Natural Resource Conservation Commission(TNRCC). However, potential degradation of air quality, particularly from automobile exhaust, in the Austin metropolitan area has been a topic of discussion over the past decade. 3.8 WATER RESOURCES AND WATER QUALITY Water quality on the proposed development site is presently estimated to be good because it is an undeveloped lot with no current commercial or residential use. n All streams in the vicinity are listed as compliance streams suitable for contact recreation by the TNRCC. 3.9 CULTURAL RESOURCES There are no properties or archeological sites listed on the National Register of Historic Places on this site. 4.0 ALTERNATIVES INCLUDING THE PROPOSED ACTION This section presents details of the proposed action and the reasonably practicable alternatives that have been considered. The alternatives include: 1)proposed (preferred) action, 2) selection of an alternate site, 3)modification of site design and layout, 4)waiting on approval of a regional section 10(a)(1)(B)permit, and 5) no action. The environmental consequences of these various alternatives are presented in section 5.0. 4.1 ALTERNATIVE 1 - PROPOSED (PREFERRED)ACTION The proposed action is the issuance of a permit under section 10(a)(1)(B) of the Act to authorize the incidental take of the endangered golden-cheeked warbler during the development of a single 5 '''� family residence on_acres on (LOCATION), Austin, Travis County, Texas. The anticipated onsite and offsite impacts of the proposed action are addressed in section 5.1. An HCP has been developed as part of the preferred alternative as mitigation for the incidental taking of the warbler. The conservation plan indicates that$1,500 will be placed in a fund held by the City of Austin Balcones Canyonlands Conservation Fund for use in land acquisition/management within golden-cheeked warbler Recovery Unit 5 for the conservation of the golden-cheeked warbler(Figure 2). The HCP is detailed more fully in section 6.0. This alternative was selected as the preferred action as it will allow development of the property and the conservation plan minimizes and offsets the potential impact to the warbler by providing for offsite conservation measures which will be utilized to better manage the recovery of the species. 4.2 ALTERNATIVE 2 -ALTERNATE SITE LOCATION This alternative assumes that the Applicant could equitably divest the subject property and construct a single family residence elsewhere that would not result in the take of the warbler. 4.3 ALTERNATIVE 3 -ALTERNATE SITE DESIGN This alternative assumes that alteration of site layout is possible and that relocation of the residence would eliminate take of the warbler. 4.4 ALTERNATIVE 4 - WAIT ON A REGIONAL 10(a)(1)(B) PERMIT This alternative assumes that the Applicant could wait on the completion and implementation of a regional section 10(a)(1)(B)permit for continuation of development plans. 4.5 ALTERNATIVE 5 -NO ACTION ALTERNATIVE This alternative assumes that all proposed development does not occur and that no application for incidental take is processed. 5.0 ENVIRONMENTAL CONSEQUENCES 5.1 ALTERNATIVE 1-PROPOSED (PREFERRED)ALTERNATIVE 5.1.1 Onsite Impacts 5.1.1.1 Vegetation 6 The proposed action of permit issuance will result in the surface and/or vegetational alteration of less than one (1) acre (Figure 3). Most of the vegetative resources associated with construction of a single family residence will be altered. Vegetation within the steep canyon area will not be altered by the proposed development. 5.1.1.2 Wildlife Wildlife over the area planned for development would largely be displaced to adjacent areas, which could result in increased competition for nesting, foraging, breeding, and feeding areas. Landscape vegetation will provide habitat for those species of wildlife suited for coexistence with urban development. The undevelopable portions of the canyon system are expected to remain in their natural vegetational state and would continue to provide habitat for the wildlife species that currently utilize this area. Undetermined negative or positive effects associated with the promotion of urban wildlife species and human activities associated with the planned development may result in negative impacts to certain species while others may be unaffected or positively affected from this development. n • Figure 3. (APPLICANT'S NAME) lot and approximate location of proposed construction. 7 '� 5.1.1.3 Endangered Species The black-capped vireo and the six species of cave-adapted invertebrates have not been documented to occur on the subject site nor has suitable habitat been identified for these species. Spring surveys for the warbler were conducted between 1989 and 1993 in the project area. During those surveys,_(#) warblers were observed in the canyon north of the property. Based on the Service's definition of warbler habitat,the forested community found on the subject property would be considered warbler habitat. Much of the forested canyon and ecotonal areas are,to some degree, utilized by the warbler. Forested areas on the plateaus which contribute to the overall habitat continuity on this site have not been found to be directly utilized by warblers. 5.1.1.4 Assessment of Take Development of_acres on (LOCATION), Austin, Travis County, Texas is subject to the City of Austin and Travis County Land Development Code which limits development on slopes of greater than 25 percent. This precludes the use of those portions of the lot that include the canyon area. Direct alteration of habitat areas known to be utilized by the warbler will be limited to intrusions within the ecotonal transition zones between the upper plateau and the canyon habitat. The Service currently believes that development activities in general will cause indirect impacts to the warbler due to habitat fragmentation, and an overall decrease of the contiguous habitat patch size. Encroachment of noise and activity within close proximity to nesting pairs, and introduction or increase of predator species (i.e., cowbirds,jays, house cats, fire ants) into otherwise low-predator-density areas are also potential indirect impacts of adjacent development. Based on the results of previous warbler surveys, the Service has concluded that up to 1 pair of warblers occur in the project area during the nesting season and that this project will result in the direct and/or indirect destruction of approximately 1 acre of warbler habitat, which contributes to the support of one warbler pair. No take is anticipated for any other federally listed or proposed species. No populations of the candidate plant species or the Barton Springs salamander have been identified on the subject site, and are, therefore, not anticipated to be impacted. 5.1.1.5 Wetlands Areas subject to section 404 of the Clean Water Act jurisdiction are limited to the existing surface creek channel and is not proposed for development. Runoff into this area is to be treated according to local regulations and EPA standards for nonpoint-source pollution and sedimentation prevention. No impacts are expected. r'� 8 5.1.1.6 Geology/Soils No significant geologic alterations are anticipated from the proposed project. Some surface soil alterations will result from the proposed development. 5.1.1.7 Land Use Current and past land use trends in the vicinity are toward single-family residential use. 5.1.1.8 Water Resources Surface water resources will be directed to appropriate filtration and sedimentation facilities. Subsurface groundwater resources will be slightly altered by the construction of impervious cover in the form of roadways and building foundations. Water that would have seeped into the geologic strata will become surface runoff and channeled to the appropriate facility. There could be slight increases in sediment loading and other pollutants in surface water runoff, however, these increases are not believed to be significant given the sedimentation facilities' ability to capture these pollutants and the small size of the project. 5.1.1.9 Air and Water Quality Impacts The proposed development may contribute to increased local traffic noise and exhaust emissions by increasing the number of gasoline-powered vehicles in the immediate vicinity. The addition of one residence with fireplaces would be expected to contribute to carbon dioxide,particulate and other emissions in the local area. The removal of trees associated with the proposed development will slightly reduce the local air filtering capabilities. A temporary increase of fugitive dust emissions and noise will be expected during construction activities. No significant impacts are expected to occur from runoff of the developed areas. All City of Austin and Travis County Land Development Codes are expected to be complied with during all aspects of the development. All impervious cover runoff will be directed to the filtration and sedimentation facilities, as required by the applicable City ordinances. 5.1.1.10 Cultural Resources According to Texas Historic Commission files, no registered archaeological sites exist for the subject tract. No impacts are expected to occur to any significant sites of historical value. 9 5.1.2 Offsite Impacts 5.1.2.1 Vegetation No offsite impacts to vegetation are expected to occur. 5.1.2.2 Wildlife Displacement of certain wildlife species is expected to occur from the developed lot into the undeveloped canyon as well as adjacent, undeveloped properties. Wildlife over the subject lot would largely be displaced to adjacent areas,which could result in increased competition for nesting, foraging, breeding, and feeding areas. 5.1.2.3 Endangered Species Offsite impacts pertaining to endangered species may ultimately include the displacement of warblers that have been documented to utilize the areas adjacent to the subject sites. Implementation of the conservation measures described in section 6.0 illustrate the method to be utilized to minimize and mitigate potential onsite impacts. The actions described for the conservation/mitigation measures would address any offsite impacts that may result due to the proposed development. 5.1.2.4 Wetlands As previously discussed,the onsite sedimentation and nonpoint-source pollution controls will minimize the amount of sediment and other pollutants introduced into downstream jurisdictional areas. No offsite impacts to jurisdictional areas are expected to occur. 5.1.2.5 Geology/Soils No offsite impacts to geologic or soil resources are expected to occur. 5.1.2.6 Land Use No significant alterations to existing or proposed land uses are expected to occur as a result of the proposed action. 5.1.2.7 Air and Water Quality As previously discussed in the onsite impacts section, vehicle emissions and noise levels, as well as emissions from fireplaces, are expected to increase locally due to an increase in the number of 10 vehicles and residences in the area. This local increase may have minor effects on the regional air quality conditions. The proposed water quality control devices are discussed in the onsite impacts section. Existing offsite water quality conditions are expected to be maintained by these control devices. Potential offsite, indirect water quality impacts would relate to roadway surface runoff pollution as a result of the increase in vehicle traffic in the area. This increase will be insignificant because the action is construction of one single family residence. 5.1.2.8 Water Resources Offsite surface and groundwater resources are not expected to be impacted by this activity. Natural water volumes exiting from the site are expected to remain consistent with normal weather patterns,with slight increases in surface water runoff due to the increase in impervious cover due to development. 5.1.2.9 Cultural Resources No offsite impacts to cultural resources are expected. 5.1.3 Cumulative Impacts Analysis - This section considers the past,present, and future projects, authorized or under review,that are considered to contribute to the cumulative loss of species of concern. 5.1.3.1 Vegetation-As the proposed action would result in disturbance of less than 1 acre of vegetation,primarily juniper-live oak woodland, it would cumulatively contribute to disturbance of this vegetation type in Travis County resulting from development, road construction, and other land use projects. 5.1.3.2 Wildlife - The proposed action will contribute to a cumulative reduction of habitat for some wildlife species when added to impacts resulting from other development, road construction, and other land use projects in Travis County. Wildlife species associated with urban and suburban settings would likely increase while species intolerant of development would locally decrease. No significant cumulative impacts to wildlife species currently occurring in Travis County or the region would be expected. 5.1.3.3 Threatened or Endangered Species - The proposed action will contribute to "take" of golden-cheeked warblers and/or their habitat in the region when added to section 10(a)(1)(B) incidental take permits that have been or will be issued by the Service for other projects. To date, 70 incidental take permits have been issued in the Austin area. These permits cover approximately 5,417 acres a portion of which included warbler habitat. There are currently 19 active incidental take permit applications, 8 of which are single family residence applications, 11 being considered by the Service in the Austin area. These permits cover in excess of 4,229 acres, of which a portion is suitable warbler habitat. The level of impacts resulting from projects for which permits are currently being considered is dependent on the amount of take resulting from the actual number of these permits issued by the Service. Cumulatively,the known activities would not result in a significant impact to the warbler because each activity is being evaluated with respect to its impact on the warbler's recovery unit number 5. 5.1.3.4 Wetlands - There are not impacts to wetlands as a result of this project. Therefore, no cumulative impacts are anticipated. 5.1.3.5 Geology and Soils -No significant cumulative impacts to geology and soils would occur as a result of the proposed action. 5.1.3.6 Land Use - The proposed action contributes to the conversion of undeveloped land to developed land in the Austin area. Past,present, and future developments must comply with all development codes and cumulative impacts will be the same for all alternatives. 5.1.3.7 Air and Water Quality - The proposed action will contribute to limited degradation of air quality in the Austin area, primarily through a slight increase in automobile exhaust emissions. The significance of the impact will depend upon air quality requirements for construction activities and automobiles. The continued development of the area could result in a significant cumulative impact on air quality. The proposed action, complying with local water quality codes,will cause some change in existing water quality. However,this change will not result in a significant cumulative impact from the single family residential lots that are anticipated to undergo this process. However, uncontrolled development in areas that do not have adequate water quality standards will result in a significant cumulative impact on the water quality. 5.1.3.8 Cultural Resources -This project, because of its limited scope,will not result in cumulative impacts to sites eligible for the National Register of Historic Places. 5.2 ALTERNATIVE 2 -ALTERNATE SITE LOCATION With the steady encroachment of urbanization around the property during the past decade, and commensurate increases in property taxes and expenses, the previous uses of the land have either become impractical or uneconomical in terms of providing adequate return against expenses. The property location is situated within a rapidly urbanizing area within the Austin community. While it is possible to construct a single family residence on property other than the subject site and not within suitable warbler habitat, it is not economically practicable for the Applicant to divest the subject parcel at a non-development market price and then purchase another site at or above development market price. Therefore, this alternative was considered non-practicable. ,•"'%s 12 5.3 ALTERNATIVE 3 -ALTERNATIVE SITE LAYOUT An alternative site layout design would not eliminate the incidental take of the golden-cheeked warbler. Therefore,this alternative was considered non-practicable. 5.4 ALTERNATIVE 4 - WAIT ON THE REGIONAL 10(a)(1)(B) PERMIT Following discovery of the warbler near the site and the potential for take from construction of a single family residence,the Service recommended that the Applicant should apply for an individual section 10(a)(1)(B)permit or wait on completion of the regional section 10(a)(1)(B) permit. From 1990 to present, a proposed regional HCP has met with numerous delays. In November 1993, Travis County voters denied a bond proposition to provide major funding for that HCP. Due to uncertainties as to when a regional plan might be available,this alternative was considered non-practicable. 5.5 ALTERNATIVE 5 -NO ACTION This scenario would not result in the near-term disturbance of portions of the site proposed for development, nor the attendant potential take of the warbler. Since the site is privately owned, there is constant economic maintenance of the property,particularly in taxes and upkeep. The sale of the property for purposes other than development is not economically feasible. The ✓'N Applicant no longer can afford to hold the property without reasonable economic return. Therefore,this alternative was considered non-practicable under current and foreseeable circumstances. 6.0 HABITAT CONSERVATION PLAN As part of the proposed action, an HCP has been proposed to minimize the potential take described in section 5.1.1.4 above and assure that this action does not reduce the potential for survival and recovery of the warbler in the wild, as mandated by requirements of 50 CFR Part 17.22(b)(1)(iii). The HCP includes the following features: • The donation of$1,500 to the City of Austin Balcones Canyonlands Conservation Fund for the specific purpose of land acquisition/management within golden- cheeked warbler Recovery Unit 5 for the conservation of the golden-cheeked warbler. The lands acquired/managed through this fund are to be approved by the Fish and Wildlife Service. These funds are not required at the time of permit application but must be provided prior to any clearing activities or house construction. 13 .-r • Minimization or avoidance of clearing within the canyon habitats on the development site; • The use of herbicides and pesticides will be kept to a minimum and will fully comply with the label guidelines for application; and • Clearing and construction within the proposed development area shall be consistent with the current practices recommended by the Texas Forest Service to prevent the spread of oak wilt. The following conservation recommendations will be followed where possible: • Clearing within the development area will be limited to what is necessary for residential construction and revegetation of non-impervious disturbances will be with native vegetation; and • New construction onsite will not be initiated during the warbler breeding/nesting period between 1 March and 1 August within 300 feet of the edge of a documented warbler territory, if possible. This conservation plan is intended to minimize the potential impact to the warbler and provide for its continued existence. One of the four conservation planning requirements is a requirement that sufficient funding be made available to implement the HCP. (APPLICANT'S NAME) is committed to provide the necessary funding to support the mitigation as outlined above. 6.1 AMENDMENT PROCEDURE It is necessary to establish a procedure whereby the section 10(a)(1)(B)permit can be amended. However, it is extremely important that the cumulative effect of amendments will not jeopardize any endangered species or other species of concern. Amendments must be evaluated based on their effect on the habitat as a whole. The Service must be consulted on all proposed amendments. The types of proposed amendments and the applicable amendment procedures are as follows: 6.2 AMENDMENTS TO THE DEVELOPMENT PLANS It is acknowledged that upon the written request of(APPLICANT'S NAME),the local agency having land use regulatory jurisdiction, is authorized in accordance with applicable law to approve amendments to development plans for the subject property which do not encroach on any endangered species habitat that is not presently contemplated to be taken as a consequence of the development, and which do not alter the conditions set forth in this HCP. 14 6.3 MINOR AMENDMENTS TO THE HCP Minor amendments involve routine administrative revisions or changes to the operation and management program and which do not diminish the level or means of mitigation. Such minor amendments do not alter the terms of the section 10(a)(1)(B)permit. Upon the written request of(APPLICANT'S NAME),the Service is authorized to approve minor amendments to this HCP, if the amendment does not conflict with the primary purpose of this HCP as stated in section 2.0. 6.4 ALL OTHER AMENDMENTS All other amendments will be considered an amendment to the section 10(a)(1)(B)permit, subject to any other procedural requirements of federal law or regulation which may be applicable to amendment of such a permit. 15 7.0 REFERENCES Balcones Canyonlands Conservation Plan(BCCP), 1988. Prepared for The BCCP Executive Committee by The Butler/EHA team. February, 1992. Final Draft. Garner, L.E. and Young, K.P. 1976. Environmental Geology of the Austin Area: An Aid to Urban Planning. Bureau of Economic Geology, Report of Investigation No. 86, University of Texas at Austin. Soil Conservation Service (SCS). 1974. Soil Survey of Travis County, Texas. U.S. Department of Agriculture. U.S. Fish and Wildlife Service. 1992. Golden-cheeked Warbler(Dendroica chrysoparia) Recovery Plan. Albuquerque,New Mexico. 88 pp. Wahl, C.R., D.D. Diamond and D. Shaw. 1989. The Golden-cheeked Warbler: A Status Review, Texas Parks and Wildlife Department,Austin, Texas. 16 n. APPENDIX 10: Genral Permit Conditions 50 CFR Part 13 (FWS) 50 CFR Part 217,220,222 (NMFS) §12.42 50 CFR Ch. 1 (10-1-98 Edition) (g) If the Solicitor decides that relief shall constitute final administrative should not be granted, the Solicitor action on the matter. shall so notify the petitioner in writ- [47 FR 56861,Dec.21, 1982] ing, stating in the notification the rea- sons for denying relief. The petitioner Subpart F—Return of Property may then file a supplemental petition, but no supplemental petition shall be §12.51 Return procedure. considered unless it is received within If, at the conclusion of the appro- 60 days from the date of the Solicitor's priate proceedings, seized property is notification denying the original peti- to be returned to the owner or con- tion. signee, the Solicitor or Service shall [45 FR 17864, Mar. 19, 1980, as amended at 47 issue a letter or other document au- FR 56861,Dec.21, 19821 thorizing its return. This letter or other document shall be delivered per- §12.42 Recovery of certain storage sonally or sent by registered or cer- costs. tified mail, return receipt requested, If any wildlife, plant, or evidentiary and shall identify the owner or con- item is seized and forfeited under the signee, the seized property, ane, if ap- Endangered Species Act, 16 U.S.C. 1531 Propriate, the bailee of the seized prop et seq., any person whose act or omis- presentation It shall also provide that upon doc- sion was the basis for the seizure may ument a anddn properothe letter r otherand be charged a reasonable fee for ex- the signing ofa identification,pridebythe the receipt provided the penses to the United States connectedService, the seized property is author- with the transfer, board, handling, or ized to be released, provided it is prop- storage of such property. If any fish, erly marked in accordance with appli- wildlife or plant is seized in connection cable State or Federal requirements. with a violation of the Lacey Act Amendments of 1981, 16 U.S.C. 3371, et PART 13—GENERAL PERMIT seq., any person convicted thereof, or PROCEDURES assessed a civil penalty therefor, may be assessed a reasonable fee for ex- Subpart A—Introduction penses of the United States connected with the storage, care and maintenance Sec. of such property. Within a reasonable 13.1 General. time after forfeiture, the Service shall13.2 Purpose of regulations. send to such person byregistered or 13.3 Scope of regulations. 13.4 Emergency variation from require- certified mail, return receipt re- ments. quested, a bill for such fee. The bill 13.5 Information collection requirements. shall contain an itemized statement of the applicable costs, together with in- Subpart B—Application for Permits structions on the time and manner of 13.11 Application procedures. payment. Payment shall be made in ac- 13.12 General information requirements on cordance with the bill. The recipient of applications for permits. any assessment of costs under this sec- tion who has an objection to the rea- Subpart C—Permit Administration sonableness of the costs described in 13.21 Issuance of permits. the bill may, within 30 days of the date 13.22 Renewal of permits. on which he received the bill, file writ- 13.23 Amendment of permits. ten objections with the Regional Direc- 13.24 Right of succession by certain persons. tor of the Fish and Wildlife Service for 13.25 Permits not transferable;agents. 13.26 Discontinuance of permit activity. the Region in which the seizure oc- 13.27 Permit suspension. curred. Upon receipt of the written ob- 13.28 Permit revocation. jections, the appropriate Regional Di- 13.29 Review procedures. rector will promptly review them and within 30 days mail his final decision Subpart D—Conditions to the party who filed objections. In all 13.41 Humane conditions. cases, the Regional Director's decision 13.42 Permits are specific. 40 U.S. Fish and Wildlife Serv., Interior §13.5 13.43 Alteration of permits. dangered Wildlife and Plants" (part 17), 13.44 Display of permit. "Marine Mammals" (part 18), "Migra- 13.45 Filing of reports. tory Birds" (part 21), "Eagles" (part 22) 13.46 Maintenance of records. and "Endangered Species Convention" 13.47 Inspection requirement. g p 13.48 Compliance with conditions of permit. (part 23). As used in this part 13, the 13.49 Surrender of permit. term "permit" shall refer to either a li- 13.50 Acceptance of liability. cense,permit, or certificate as the con- AUTHORITY: 16 U.S.C. 668a, 704, 712, 742j-1, text may require. 1382, 1538(d), 1539, 1540(1), 3374, 4901-4916; 18 [42 FR 10465, Feb. 22, 1977. as amended at 92 U.S.C. 42; 19 U.S.C. 1202; E.O. 11911, 41 FR FR 32377, June 24, 1977; 95 FR 56673, Aug. 25, 15683;31 U.S.C.9701. 1980] SOURCE:39 FR 1161,Jan.4, 1974,unless oth- erwise noted. §13.4 Emergency variation from re- quirements. Subpart A—Introduction The Director may approve variations from the requirements of this part §13.1 General. when he finds that an emergency exists Each person intending to engage in and that the proposed variations will an activity for which a permit is re- not hinder effective administration of quired by this subchapter B shall, be- this subchapter B, and will not be un- fore commencing such activity, obtain lawful. a valid permit authorizing such activ- §13.5 Information collection require- ity. Each person who desires to obtain ments. the permit privileges authorized by this subchapter must make application (a) The Office of Management and for such permit in accordance with the Budget approved the information col- requirements of this part 13 and the lection requirements contained in this other regulations in this subchapter part 13 under 44 U.S.C. and assigned which set forth the additional require- OMB Control Number 1018-0092. The ments for the specific permits desired. Service may not conduct or sponsor, If the activity for which permission is and you are not required to respond, to sought is covered by the requirements a collection of information unless it of more than one part of this sub- displays a currently valid OMB control chapter, the requirements of each part number. We are collecting this infor- must be met. If the information re mation to provide information nec- quired for each specific permitted ac- must to evaluate permit applications. tivity is included, one application will We will use this information to review be accepted for all permits required, permit applications and make deci- and a single permit will be issued. Bions, according to criteria established in various Federal wildlife conserva- §13.2 Purpose of regulations. tion statutes and regulations, on the The regulations contained in this issuance, suspension, revocation, or de- part provide uniform rules, conditions, nial permits. You must respond to ob and procedures for the application for tain or retain a permit. and the issuance, denial, suspension, (b) We estimate the public reporting revocation, and general administration burden for these reporting require- of all permits issued pursuant to this ments to vary from 15 minutes to 4 subchapter B. hours per response, with an average of 0.803 hours per response, including time [54 FR 38147,Sept.14, 1989] for reviewing instructions, gathering §13.3 Scope of regulations. and maintaining data, and completing p g and reviewing the forms. Direct com- The provisions in this part are in ad- ments regarding the burden estimate dition to, and are not in lieu of, other or any other aspect of these reporting permit regulations of this subchapter requirements to the Service Informa- and apply to all permits issued there- tion Collection Control Officer, MS-222 under, including "Import and Mark- ARLSQ, U.S. Fish and Wildlife Service, ing" (part 14), "Feather Imports" (part Washington, DC 20240, or the Office of ,•••••N15), "Injurious Wildlife" (part 16), "En- Management and Budget, Paperwork 41 §13.11 50 CFR Ch. [ (10-1-98 Edition) Reduction Project (1018-0092), Washing- dangered species and marine mammal ton, DC 20603. permits should submit applications to [63 FR 52634,Oct.1,1998] the Office of Management Authority which are postmarked at least 90 cal- endar days prior to the requested effec- Subpart B—Application for Permits tive date. Applicants for all other per- §13.11 Application procedures. mits should submit applications to the issuing office which are postmarked at The Service may not issue a permit least 60 days prior to the requested ef- for any activity authorized by this sub- fective date. chapter B unless the applicant has filed (d) Fees. (1) Unless otherwise exempt- an application in accordance with the ed by this paragraph, applicants for following procedures. Applicants do not issuance or renewal of permits must have to submit a separate application pay the required permit processing fee for each permit unless otherwise re- at the time of application. Applicants quired by this subchapter. should pay fees by check or money (a) Forms. Applications must be sub- order made payable to "U.S. Fish and mitted in writing on a Federal Fish Wildlife Service." The Service will not and Wildlife License/Permit Applica- refund any application fee under any tion (Form 3-200) or as otherwise spe- circumstances if the Service has proc- cifically directed by the Service. essed the application. However, the (b) Forwarding instructions. Applica- Service may return the application fee tions for permits in the following cat- if the applicant withdraws the applica- egories should be forwarded to the tion before the Service has signifi- /"\ issuing office indicated below. cantly processed it. (1) Migratory bird banding permits (2) Except as provided in paragraph (50 CFR 21.22)—Bird Banding Labora- (d)(4) of this section the fee for process- tory, Office of Migratory Bird Manage- ing any application is $25.00. If regula- ment, U.S. Fish and Wildlife Service, tions in this subchapter require more Laurel, Maryland 20708. (Special appli- than one type of permit for an activity, cation forms must be used for bird and the permits are issued by the same banding permits. They may be obtained office, the issuing office may issue one by writing to the Bird Banding Labora- consolidated permit authorizing the tory). activity. The issuing office may charge (2) Exception to designated port (50 only the highest single fee for the ac- CFR part 14), import/export license (50 tivity permitted. CFR 14.93), migratory bird permit, (3) A fee shall not be charged to any other than banding (50 CFR part 21) Federal, State or local government and Bald or Golden eagle permits (50 agency, nor to any individual or insti- CFR part 22)—Assistant Regional Di- tution under contract to such agency rector for Law Enforcement of District for the proposed activities. The fee in which the applicant resides (see 50 may be waived or reduced for public in- CFR 10.22 for addresses and boundaries stitutions (see 50 CFR 10.12). Proof of of the Law Enforcement Districts). such status must accompany the appli- (3) Feather quota (50 CFR part 15), in- cation. jurious wildlife (50 CFR part 16), endan- (4) Nonstandard fees. gered and threatened species (50 CFR part 17), marine mammal (50 CFR part Type of permit Fee 18) and permits and certificates for the Import/Export License(Section 14.93) $50 Convention on International Trade in Manne Mammal(Section 18.31) $100. Endangered Species (CITES) (50 CFR Migratory Bird-Banding or Marking(21.22) None. part 23)—U.S. Fish and Wildlife Serv- Bald or Golden Eagles(Part 22) None. ice, Federal Wildlife Permit Office, P.O. Box 3654,Arlington, Virginia 22203. (e) Abandoned or incomplete applica- (c) Time notice. The Service will proc- tions. Upon receipt of an incomplete or ess all applications as quickly as pos- improperly executed application, or if sible. However, it cannot guarantee the applicant does not submit the prop- final action within the time limits the er fees, the issuing office will notify applicant requests. Applicants for en- the applicant of the deficiency. If the P"'\ 42 n U.S. Fish and Wildlife Serv., Interior §13.12 applicant fails to supply the correct in- chapter B of chapter I of title 50, Code of formation to complete the application Federal Regulations, and I further certify or to pay the required fees within 45 that the information submitted in this appli- calendar days of the date of notifica- cation for a permit is complete and accurate to the best of my knowledge and belief. I un- tion, the Service will consider the ap- derstand that any false statement herein plication abandoned. The Service will may subject me to suspension or revocation not refund any fees for an abandoned of this permit and to the criminal penalties application. of 18 U.S.C. 1001. [47 FR 30785, July 15, 1982, as amended at 50 (6) Desired effective date of permit FR 52889, Dec. 26, 1985; 54 FR 4031, Jan. 27, except where issuance date is fixed by 1989; 54 FR 38147, Sept. 14, 1989; 61 FR 31868, the part under which the permit is June 21,1996] issued; §13.12 General information require- (7) Date; ments on applications for permits. (8) Signature of the applicant;and required for (9) Such other information as the Di- (a) General information rector determines relevant to the proc- all applications. All applications must essing of the application. contain the following information: on (1) Applicant's full name, mailing ad- Additional informations. Asarequired para- dress,telephone number(s), and, permitpapplications. section stated in rgraph (a)(3) of this certain ad- (i) If the applicant is an individual, ditional information is required on all the date of birth, height, weight, hair applications. These additional require- color, eye color, sex, and any business ments may be found by referring to the or institutional affiliation of the appli- section of this subchapter B cited after cant related to the requested permitted the type of permit for which applica- activity;or tion is being made: (ii) If the applicant is a corporation, firm, partnership, association, institu- Type of permit Section tion, or public or private agency, the Importation at nondesignated ports: name and address of the president or Scientific 14.31 principal officer and of the registered Deterioration prevention 14.32 agent for the service of process; Economic hardship 14.33 (2) Location where the requested per- Marking of package or container mitted activityis to occur or be con- Symbol marking 14.83 Import/export license 14.93 ducted; Feather import quota:Importation or entry 15.21 (3) Reference to the part(s) and sec- Injurious wildlife:Importation or shipment 16.22 tion(s) of this subchapter B as listed in Endangeredry of appearance nce permits: p Similarity of appearance 17.52 paragraph (b) of this section under Scientific, enhancement of propagation or which the application is made for a survival,incidental taking for wildlife 17.22 or permits, together with Scientific,propagation,or survival for plants 17.62 permit g any Economic hardship for wildlife 17.23 additional justification, including sup- Economic hardship for plants 17.63 porting documentation as required by Threatened wildlife and plant permits: the referenced part(s) and section(s); Similarity of appearance 17.52 General for wildlife 17.32 (4) If the requested permitted activ- American alligator-buyer or tanner 17.42(a) ity involves the import or re-export of General for plants 17.72 wildlife or plants from or to any for- Marine mammals permits: eign country, and the country of ori- Scientific research 18.31 Public display 18.31 gin, or the country of export or re-ex- Migratory bird permits: port restricts the taking, possession, Banding or marking 21.22 transportation, exportation, or sale of STcien collecting 21.23 wildlife or p Waterfowl documentation as in- xwlst 21.24 sale and disposal 21.25 dicated in §14.52(c) of this subchapter Special aviculturist 21.26 B; Special purpose 21.27 (5) Certification in the followingIan- Falconry 21.28 Raptor propagation permit 21.30 guage: Depredation control 21.41 I herebycertifythat I have read and am fa- Eagle ipe mitt: Scientific or exhibition 22.21 miliar with the regulations contained in Indian religious use 22.22 title 50,part 13,of the Code of Federal Regu- Depredation control 22.23 lations and the other applicable parts in sub- Falconry purposes 22.24 /.".N 43 §13.21 50 CFR Ch. I (10-1-98 Edition) Type of permit section (1) A conviction, or entry of a plea of Take of golden eagle nests 22.25 guilty or nolo contendere, for a felony Endangered Species Convention permits 23.15 violation of the Lacey Act, the Migra- tory Bird Treaty Act, or the Bald and Golden Eagle Protection Act disquali- i39 FR 1161,Jan. 4, 1974,as amended at 42 FR fies any such person from receiving or 10465, Feb. 22, 1977; 42 FR 32377,June 24, 1977; exercising the privileges of a permit, 44 FR 54006, Sept. 17, 1979; 44 FR 59083, Oct. unless such disqualification has been 12, 1979;45 FR 56673,Aug.25, 1980;45 FR 78154, expressly waived by the Director in re- Nov. 25, 1980;46 FR 42680,Aug. 24, 1981;48 FR sponse to a written petition. 31607, July 8, 1983; 48 FR 57300, Dec. 29, 1983; (2) The revocation of a permit for 50 FR 39687, Sept. 30, 1985; 50 FR 45408, Oct. reasons found in §13.28 (a)(1) or (a)(2) 31,1985;54 FR 38147,Sept. 14, 19891 disqualifies any such person from re- Subpart C—Permit Administration ceiving or exercising the privileges of a similar permit for a period of five years §13.21 Issuance of permits. from the date of the final agency deci- sion on such revocation. (a) No permit may be issued prior to (3) The failure to pay any required the receipt of a written application fees or assessed costs and penalties, therefor, unless a written variation whether or not reduced to judgement from the requirements, as authorized disqualifies such person from receiving by§13.4, is inserted into the official file or exercising the privileges of a permit of the Bureau. An oral or written rep- as long as such moneys are owed to the resentation of an employee or agent of United States. This requirement shall the United States Government, or an not apply to any civil penalty pres- action of such employee or agent, shall ently subject to administrative or judi- not be construed as a permit unless it cial appeal; provided that the pendency meets the requirements of a permit as of a collection action brought by the defined in 50 CFR 10.12. United States or its assignees shall not (b) Upon receipt of a properly exe- constitute an appeal within the mean- cuted application for a permit, the Di- ing of this subsection. rector shall issue the appropriate per- (4) The failure to submit timely, ac- mit unless: curate, or valid reports as required (1) The applicant has been assessed a may disqualify such person from re- civil penalty or convicted of any crimi- ceiving or exercising the privileges of a nal provision of any statute or regula- permit as long as the deficiency exists. tion relating to the activity for which (d) Use of supplemental information. the application is filed, if such assess- The issuing officer, in making a deter- ment or conviction evidences a lack of mination under this subsection, may responsibility. use any information available that is (2) The applicant has failed to dis- relevant to the issue. This may include close material information required, or any prior conviction, or entry of a plea has made false statements as to any of guilty or nolo contendere, or assess- material fact, in connection with his ment of civil or criminal penalty for a application; violation of any Federal or State law (3) The applicant has failed to dem- or regulation governing the permitted onstrate a valid justification for the activity. It may also include any prior permit and a showing of responsibility; permit revocations or suspensions, or (4) The authorization requested po- any reports of State or local officials. tentially threatens a wildlife or plant The issuing officer shall consider all population,or relevant facts or information available, (5) The Director finds through fur- and may make independent inquiry or ther inquiry or investigation, or other- investigation to verify information or wise, that the applicant is not quail- substantiate qualifications asserted by fied. the applicant. (c) Disqualifying factors. Any one of (e) Conditions of issuance and accept- the following will disqualify a person ance. (1) Any permit automatically in- from receiving permits issued under corporates within its terms the condi- this part. tions and requirements of subpart D of 44 U.S. Fish and Wildlife Serv., Interior §13.24 this part and of any part(s) or sec- the Service has acted on such person's tion(s) specifically authorizing or gov- application for renewal. erning the activity for which the per- (d) Denial. The issuing officer may mit is issued. deny renewal of a permit to any appli- (2) Any person accepting and holding cant who fails to meet the issuance cri- a permit under this subchapter B ac- teria set forth in §13.21 of this part, or knowledges the necessity for close reg- in the part(s) or section(s) specifically ulation and monitoring of the per- governing the activity for which the mitted activity by the Government. By renewal is requested. accepting such permit, the permittee consents to and shall allow entry by [54 FR 38148,Sept.19, 19891 agents or employees of the Service §13.23 Amendment of permits. upon premises where the permitted ac- tivity is conducted at any reasonable (a) Permittee's request. Where cir- hour. Service agents or employees may cumstances have changed so that a per- enter such premises to inspect the lo- mittee desires to have any condition of cation; any books, records, or permits his permit modified, such permittee required to be kept by this subchapter must submit a full written justifica- B; and any wildlife or plants kept tion and supporting information in under authority of the permit. conformity with this part and the part (f) Term of permit. Unless otherwise under which the permit was issued. modified, a permit is valid during the (b) Service reservation. The Service re- period specified on the face of the per- serves the right to amend any permit mit. Such period shall include the ef- for just cause at any time during its fective date and the date of expiration. term, upon written finding of neces- (g) Denial. The issuing officer may sity. deny a permit to any applicant who (c) Change of name or address. A per- fails to meet the issuance criteria set mittee is not required to obtain a new forth in this section or in the part(s) or permit if there is a change in the legal section(s) specifically governing the individual or business name, or in the activity for which the permit is re- mailing address of the permittee. A quested. permittee is required to notify the issuing office within 10 calendar days [39 FR 1161,Jan.4, 1974,as amended at 92 FR of such change. This provision does not 32377,June 24, 1977;47 FR 30785,July 15, 1982; authorize any change in location of the 54 FR 38148,Sept. 14, 1989] conduct of the permitted activity when §13.22 Renewal of permits. approval of the location is a qualifying (a) Application for renewal. Applicants condition of the permit. for renewal of a permit must submit a [54 FR 38148,Sept. 14, 1989] written application at least 30 days prior to the expiration date of the per- §13.24 Right of succession by certain mit. Applicants must certify in the persons. form required by §13.12(a)(5) that all (a) Certain persons, other than the statements and information in the permittee are granted the right to original application remain current carry on a permitted activity for the and correct, unless previously changed remainder of the term of a current per- or corrected. If such information is no mit provided they comply with the pro- longer current or correct, the applicant visions of paragraph (b) of this section. must provide corrected information. Such persons are the following: (b) Renewal criteria. The Service shall (1) The surviving spouse, child, ex- issue a renewal of a permit if the appli- ecutor, administrator, or other legal cant meets the criteria for issuance in representative of a deceased permittee; §13.21(b) and is not disqualified under and §13.21(c). (2) A receiver or trustee in bank- (c) Continuation of permitted activity. ruptcy or a court designated assignee Any person holding a valid, renewable for the benefit of creditors. permit, who has complied with this (b) In order to secure the right pro- section, may continue the activities vided in this section the person or per- authorized by the expired permit until sons desiring to continue the activity /"•N 45 §13.25 50 CFR Ch. ! (10-1-98 Edition) shall furnish the permit to the issuing regulations governing the conduct of officer for endorsement within 90 days the permitted activity. The issuing of- from the date the successor begins to ficer may also suspend all or part of carry on the activity. the privileges authorized by a permit if [54 FR 38149,Sept. 14, 1989] the permittee fails to pay any fees, penalties or costs owed to the Govern- §13.25 Permits not transferable; ment. Such suspension shall remain in agents. effect until the issuing officer deter- (a) Permits issued under this part are mines that the permittee has corrected not transferable or assignable. Some the deficiencies. permits authorize certain activities in (b) Procedure for suspension. (1) When connection with a business or commer- the issuing officer believes there are cial enterprise and in the event of any valid grounds for suspending a permit lease, sale, or transfer of such business the permittee shall be notified in writ- entity, the successor must obtain a ing of the proposed suspension by cer- permit prior to continuing the per- tified or registered mail. This notice mitted activity. However, certain lim- shall identify the permit to be sus- ited rights of succession are provided pended, the reason(s) for such suspen- in§13.24. sion, the actions necessary to correct (b) Except as otherwise stated on the the deficiencies, and inform the per- face of the permit, any person who is mittee of the right to object to the pro- under the direct control of the permit- posed suspension. The issuing officer tee, or who is employed by or under may amend any notice of suspension at contract to the permittee for purposes any time. authorized by the permit, may carry (2) Upon receipt of a notice of pro- out the activity authorized by the per- posed suspension the permittee may mit, as an agent for the permittee. file a written objection to the proposed [54 FR 38149,Sept. 14, 1989] action. Such objection must be in writ- ing, must be filed within 45 calendar §13.26 Discontinuance of permit activ- days of the date of the notice of pro- ity. posal, must state the reasons why the When a permittee, or any successor permittee objects to the proposed sus- to a permittee as provided for by§13.24, pension, and may include supporting discontinues activities authorized by a documentation. permit, the permittee shall within 30 (3) A decision on the suspension shall calendar days of the discontinuance re- be made within 45 days after the end of turn the permit to the issuing office to- the objection period. The issuing offi- gether with a written statement sur- cer shall notify the permittee in writ- rendering the permit for cancellation. ing of the Service's decision and the The permit shall be deemed void and reasons therefore. The issuing officer cancelled upon its receipt by the shall also provide the applicant with issuing office. No refund of any fees the information concerning the right paid for issuance of the permit or for to request reconsideration of the deci- any other fees or costs associated with sion under §13.29 of this part and the a permitted activity shall be made procedures for requesting reconsider- when a permit is surrendered for can- ation. cellation for any reason prior to the ex- [54 FR 38149,Sept. 14,1989] piration date stated on the face of the permit. §13.28 Permit revocation. [54 FR 38149,Sept. 14, 1989] (a) Criteria for revocation. A permit may be revoked for any of the follow- §13.27 Permit suspension. ing reasons: (a) Criteria for suspension. The privi- (1) The permittee willfully violates leges of exercising some or all of the any Federal or State statute or regula- permit authority may be suspended at tion, or any Indian tribal law or regu- any time if the permittee is not in lation, or any law or regulation of any compliance with the conditions of the foreign country, which involves a vio- permit, or with any applicable laws or lation of the conditions of the permit 46 U.S. Fish and Wildlife Serv., Interior §13.29 or of the laws or regulations governing until final disposition of the appeal the permitted activity; or process. (2) The permittee fails within 60 days [54 FR 38149,Sept.14,19891 to correct deficiencies that were the cause of a permit suspension; or §13.29 Review procedures. (3) The permittee becomes disquali- fied under§13.21(c) of this part; or (a) Request for reconsideration. Any (4) A change occurs in the statute or Person may request reconsideration of regulation authorizing the permit that an action under this part if that person prohibits the continuation of a permit is one of the following: (1) An applicant for a permit who has issued by the Service;or (5) The population(s) of the wildlife received written notice of denial; or plant that is subject of the permit applicant forrenewalwho has declines to the extent that continu- received written notice that hat a renewal ation of the permitted activity would is(3)denied; be detrimental to maintenance or re- e A ,psuspended, who has a permit amended, suspended, or revoked, ex- covery of the affected population. cept for those actions which are re- (b) Procedure for revocation. (1) When quired by changes in statutes or regu- the issuing officer believes there are lations, or are emergency changes of valid grounds for revoking a permit, limited applicability for which an expi- the permittee shall be notified in writ- ration date is set within 90 days of the ing of the proposed revocation by cer- permit change; or tified or registered mail. This notice (4) A permittee who has a permit shall identify the permit to be revoked, issued or renewed but has not been the reason(s) for such revocation, the granted authority by the permit to per- proposed disposition of the wildlife, if form all activities requested in the ap- any, and inform the permittee of the plication, except when the activity re- right to object to the proposed revoca- quested is one for which there is no tion. The issuing officer may amend lawful authority to issue a permit. any notice of revocation at any time. (b) Method of requesting reconsider- (2) Upon receipt of a notice of pro- ation. Any person requesting reconsid- posed revocation the permittee may eration of an action under this part file a written objection to the proposed must comply with the following cri- action. Such objection must be in writ- teria: ing, must be filed within 45 calendar (1) Any request for reconsideration days of the date of the notice of pro- must be in writing, signed by the per- posal, must state the reasons why the son requesting reconsideration or by permittee objects to the proposed rev- the legal representative of that person, ocation, and may include supporting and must be submitted to the issuing documentation. officer. (3) A decision on the revocation shall (2) The request for reconsideration be made within 45 days after the end of must be received by the issuing officer the objection period. The issuing offi- within 45 calendar days of the date of cer shall notify the permittee in writ- notification of the decision for which ing of the Service's decision and the reconsideration is being requested. reasons therefore, together with the in- (3) The request for reconsideration formation concerning the right to re- shall state the decision for which re- quest and the procedures for requesting consideration is being requested and reconsideration. shall state the reason(s) for the recon- (4) Unless a permittee files a timely sideration, including presenting any request for reconsideration, any wild- new information or facts pertinent to life held under authority of a permit the issue(s) raised by the request for that is revoked must be disposed of in reconsideration. accordance with instructions of the (4) The request for reconsideration issuing officer. If a permittee files a shall contain a certification in sub- timely request for reconsideration of a stantially the same form as that pro- proposed revocation, such permittee vided by§13.12(a)(5). If a request for re- may retain possession of any wildlife consideration does not contain such held under authority of the permit certification, but is otherwise timely 47 §13.41 50 CFR Ch. 1 (10-1-98 Edition) and appropriate, it shall be held and the final administrative decision of the the person submitting the request shall Department of the Interior. be given written notice of the need to submit the certification within 15 cal- [54 FR 38149,Sept. 14, 19891 endar days. Failure to submit certifi- cation shall result in the request being Subpart D—Conditions rejected as insufficient in form and §13.41 Humane conditions. content. (c) Inquiry by the Service. The Service Any live wildlife possessed under a may institute a separate inquiry into permit must be maintained under hu- the matter under consideration. mane and healthful conditions. (d) Determination of grant or denial of [54 FR 38150,Sept.14,19891 a request for reconsideration. The issuing officer shall notify the permittee of the §13.42 Permits are specific. Service's decision within 45 days of the The authorizations on the face of a receipt of the request for reconsider- permit which set forth specific times, ation. This notification shall be in dates, places, methods of taking, num- writing, shall state the reasons for the bers and kinds of wildlife or plants, lo- decision, and shall contain a descrip- cation of activity, authorize certain tion of the evidence which was relied circumscribed transactions, or other- upon by the issuing officer. The notifi- wise permit a specifically limited mat- cation shall also provide information ter, are to be strictly construed and concerning the right to appeal, the offi- shall not be interpreted to permit simi- /"'"\ cial to whom an appeal may be ad- lar or related matters outside the scope dressed, and the procedures for making of strict construction. an appeal. [39 FR 11,(e) Appeal. A person who has received 32377,June 24,197n.47]1974, as amended at 42 FR an adverse decision following submis- sion of a request for reconsideration §13.43 Alteration of permits. may submit a written appeal to the Re- Permits shall not be altered, erased, gional Director for the region in which or mutilated, and any permit which the issuing office is located, or to the has been altered, erased, or mutilated Director for offices which report di- shall immediately become invalid. Un- rectly to the Director. An appeal must less specifically permitted on the face be submitted within 45 days of the date thereof, no permit shall be copied, nor of the notification of the decision on shall any copy of a permit issued pur- the request for reconsideration. The suant to this subchapter B be dis- appeal shall state the reason(s) and played, offered for inspection, or other- issue(s) upon which the appeal is based wise used for any official purpose for and may contain any additional evi- which the permit was issued. dence or arguments to support the ap- peal. §13.44 Display of permit. (f) Decision on appeal. (1) Before a de- Any permit issued under this part cision is made concerning the appeal shall be displayed for inspection upon the appellant may present oral argu- request to the Director or his agent, or ments before the Regional Director or to any other person relying upon its the Director, as appropriate, if such of- existence. ficial judges oral arguments are nec- essary to clarify issues raised in the §13.45 Filing of reports. written record. Permittees may be required to file (2) The Service shall notify the appel- reports of the activities conducted lant in writing of its decision within 45 under the permit. Any such reports calendar days of receipt of the appeal, shall be filed not later than March 31 unless extended for good cause and the for the preceding calendar year ending appellant notified of the extension. December 31, or any portion thereof, (3) The decision of the Regional Di- during which a permit was in force, un- rector or the Director shall constitute less the regulations of this subchapter 48 U.S. Fish and Wildlife Serv., Interior Pt. 14 B or the provisions of the permit set all appeal procedures have been ex- forth other reporting requirements. hausted. §13.46 Maintenance of records. [54 FR 38150,Sept.14,19891 From the date of issuance of the per- §13.50 Acceptance of liability. mit, the permittee shall maintain com- Any person holding a permit under plete and accurate records of any tak- subchapter B assumes all liability and ing, possession, transportation, sale, responsibility for the conduct of any purchase, barter, exportation, or im- activity conducted under the authority portation of plants obtained from the of such permit. wild (excluding seeds) or wildlife pursu- ant to such permit. Such records shall i59 FR 38150,Sept.14, 1989] be kept current and shall include PART 14—IMPORTATION, EXPOR- names and addresses of persons with TATION, AND TRANSPORTATION whom any plant obtained from the wild (excluding seeds) or wildlife has been OF WILDLIFE purchased, sold, bartered, or otherwise transferred, and the date of such trans- Subpart A—Introduction action, and such other information as Sec. may be required or appropriate. Such 14.1 Purpose of regulations. records shall be legibly written or re- 14.2 Scope of regulations. producible in English and shall be 14.3 Information collection requirements. maintained for five years from the date 14.4 Definitions. of expiration of the permit. Subpart B—Importation and Exportation at [39 FR 1161, Jan.4, 1974,as amended at 42 FR Designated Ports 32377,June 24, 1977;54 FR 38150,Sept. 14, 19891 14.11 General restrictions. §13.47 Inspection requirement. 14.12 Designated ports. 14.13 Emergency diversion. Any person holding a permit under 14.14 In-transit shipments. this subchapter B shall allow the Di- 14.15 Personal baggage and household ef- rector's agent to enter his premises at fects. anyreasonable hour to inspect any14.16 Perder ports. P 14.17 Personally owned pet birds. wildlife or plant held or to inspect, 14.18 Marine mammals. audit, or copy any permits, books, or 14.19 Special ports. records required to be kept by regula- 14.20 Exceptions by permit. tions of this subchapter B. 14.21 Shellfish and fishery products. 14.22 Certain antique articles. [39 FR 1161,Jan.4, 1974,as amended at 42 FR 14.23 Live farm-raised fish and farm-raised 32377,June 24, 19771 fish eggs. 14.24 Scientific specimens. §13.48 Compliance with conditions of permit. Subpart C—Designated Port Exception Permits Any person holding a permit under subchapter B and any person acting 14.31 Permits to import or export wildlife at under authority of such permit must nondesignated port for scientific pur- comply with all conditions of the per- poses. mit and with all appllicable laws and 14.32 Permits to import or export wildlife at nondesignated port to minimize deterio- regulations governing the permitted ration or loss. activity. 19.33 Permits to import or export wildlife at [54 FR 38150,Sept.14,1989] nondesignated port to alleviate undue economic hardship. §13.49 Surrender of permit. Subpart D [Reserved] Any person holding a permit under subchapter B shall surrender such per- Subpart E—Inspection and Clearance of mit to the issuing officer upon notifi- Wildlife cation that the permit has been sus- 14.51 Inspection of wildlife. pended or revoked by the Service, and 14.52 Clearance of imported wildlife. 49 National Marine Fisheries Service/NOAA, Commerce §217.1 taking and a description of any meas- fication, is not considered a sub- ures that will be taken in the following stantive modification. year to prevent exceeding the author- (b) If the National Marine Fisheries ized incidental take level. Service determines that an emergency (5) Results of any population assess- exists that poses a significant risk to ment studies made on marine mam- the well-being of the species or stocks mals in the Outer Sea Test Range dur- of marine mammals specified in ing the previous year. §216.151, or that significantly and det- rimentally alters the scheduling of ex- §216.156 Renewal of Letter of Author- plosives detonation within the area ization. specified in §216.151, the Letter of Au- (a) A Letter of Authorization issued thorization issued pursuant to §216.106, under §216.106 for the activity identi- or renewed pursuant to this section fied in§216.151(a) will be renewed annu- may be substantively modified without ally upon: prior notice and an opportunity for (1) Timely receipt of the reports re- public comment. A notice will be pub- quired under §216.155(f) and (g), which lished in the FEDERAL REGISTER subse- have been reviewed by the Assistant quent to the action. Administrator for Fisheries, NOAA, [59 FR 5126, Feb. 3, 1994. Redesignated and and determined to be acceptable; amended at 61 FR 15887, 15891,Apr. 10, 1996] (2) A determination that the maxi- mum incidental take authorizations in Subparts O-Q [Reserved] §216.151(b)will not be exceeded; and (3) A determination that the mitiga- PART 217—GENERAL PROVISIONS tion measures required under §216.153(b) and the Letter of Authoriza- tion have been undertaken. Subpart A—Introduction (b) If a species' annual authorization Sec. is exceeded, the National Marine Fish- 217.1 Purpose of regulations. eries Service will review the docu- 217.2 Scope of regulations. mentation submitted with the annual 217.3 Other applicable laws. report required under§216.155(g), to de- 217.4 When regulations apply. termine that the taking is not having more than a negligible impact on the Subpart B—Definitions species or stock involved. 217.12 Definitions. (c) Notice of issuance of a renewal of the Letter of Authorization will be Subpart C—Addresses published in the FEDERAL REGISTER. 217.21 Assistant Administrator. [59 FR 5126, Feb. 3, 1994. Redesignated and 217.22 Office of Marine Mammals and En- amended at 61 FR 15887, 15890-15891, Apr. 10, dangered Species. 1996] 217.23 Enforcement Division. §216.157 Modifications to Letter of Au- AUTHORITY: 16 U.S.C. 742a et seq., 1361 et thorization. seq.,and 1531-1544,unless otherwise noted. (a) In addition to complying with the Subpart A—Introduction provisions of §216.106, except as pro- p vided in paragraph (b) of this section, no substantive modification, including §217.1 Purpose of regulations. withdrawal or suspension, to the Let- The regulations of parts 216 through ter of Authorization issued pursuant to 227 are promulgated to implement the §216.106 and subject to the provisions of following statutes enforced by the Na- this subpart shall be made until after tional Marine Fisheries Service, Na- notice and an opportunity for public tional Oceanic and Atmospheric Ad- comment. For purposes of this para- ministration, Department of Com- graph, renewal of a Letter of Author- merce, which regulate the taking, pos- ization under §216.146, without modi- session, transportation, sale, purchase, ,""\ 71 §217.2 50 CFR Ch. 11 (10-1-98 Edition) barter, exportation, and importation of (a) Civil penalty proceedings. Except as wildlife. otherwise provided in §218.25, the civil (Endangered Species Act of 1973, section penalty assessment procedures con- 11(f), 87 Stat. 884, Pub. L. 93-205; Fish and tained in parts 216 through 227 of this Wildlife Act of 1956, 16 U.S.C.742a-1) chapter shall apply only to any pro- ceeding instituted by notice of viola- [39 FR 41370, Nov. 27, 1974, as amended at 52 tion dated subsequent to the effective FR 24250,June 29,1987] date of these regulations, regardless of §217.2 Scope of regulations. when the act or omission which is the basis of a civil penalty proceeding oc- The various provisions of parts 216 curred. through 227 of this chapter are inter- (b) [Reserved] related, and particular note should be taken that the parts must be construed [39 FR 41370, Nov. 27, 1974, as amended at 52 with reference to each other. The regu- FR 24250,June 29,1987] lations in parts 216 through 227 apply only for fish or wildlife under the juris- Subpart B—Definitions dictional responsibilities of the Sec- retary of Commerce for the purpose of §217.12 Definitions. carrying out the Endangered Species Accelerator funnel means a device Act of 1973 (see part 222, §222.23(a)). En- used to accelerate the flow of water dangered species of fish or wildlife through a shrimp trawl net. other than those covered by these regu- Act means the Endangered Species lations are under the jurisdiction of Act of 1973, as amended (Pub. L. the Secretary of the Interior. For rules 93-205). and procedures relating to such spe- Approved TED means: cies,see 50 CFR parts 10 through 17. (1) A hard TED that complies with [39 FR 41370, Nov. 27, 1974, as amended at 52 the generic design criteria set forth in FR 24250,June 29, 1987] 50 CFR 227.72(e)(4)(i). (A hard TED may be modified as specifically authorized §217.3 Other applicable laws. by 50 CFR 227.72(e)(4)(iv));or No statute or regulation of any State (2) A soft TED that complies with the shall be construed to relieve a person provisions of 50 CFR 227.72(e)(4)(iii); or from the restrictions, conditions, and (3) A special hard TED which com- requirements contained in parts 216 plies with the provisions of 50 CFR through 227 of this chapter. In addi- 227.72(e)(4)(ii). tion, nothing in parts 216 through 227 of Assistant Administrator means the As- this chapter, nor any permit issued sistant Administrator for Fisheries of under parts 217 through 228 of this the National Marine Fisheries Service, chapter, shall be construed to relieve a National Oceanic and Atmospheric Ad person from any other requirements ministration, Department of Com- imposed by a statute or regulation of merce, or his authorized representa any State or of the United States, in- tive. cluding any applicable health, guar- Atlantic Area means all waters of the antine, agricultural, or customs laws Atlantic Ocean south of 36°33'00.8" N. or regulations, or other National Ma- latitude (the line of the North Caro rine Fisheries Service enforced stat- lina/Virginia border) and adjacent seas, utes or regulations. other than waters of the Gulf Area, and all waters shoreward thereof(including [39 FR 41370, Nov. 27, 1974, as amended at 52 ports). FR 24250,June 29,1987] Atlantic Shrimp Fishery-Sea Turtle §217.4 When regulations apply. Conservation Area (Atlantic SFSTCA) means the inshore and offshore waters The regulations of parts 216 through extending to 10 nautical miles (18.5 km) --- __ 227 of this chapter shall apply to all offshore along the coast of the States matters, including the processing of of Georgia and South Carolina from the permits, arising after the effective date Georgia-Florida border (defined as the of such regulations, with the following line along 30°42'45.6" N. lat.) to the exception: North Carolina-South Carolina border 72 /'1 National Marine Fisheries Service/NOAA, Commerce §217.12 (defined as the line extending in a di- (2) The attempted catching, taking, rection of 135°34'55" from true north or harvesting of fish or wildlife; from the North Carolina-South Caro- (3) Any other activity that can rea- lina land boundary, as marked by the sonably be expected to result in the border station on Bird Island at 33° catching, taking, or harvesting of fish 51'07.9"N. lat.,078°32'32.6"W. long.). or wildlife; or Authorized officer means: (4) Any operations on any waters in (1) Any commissioned, warrant, or support of, or in preparation for, any petty officer of the U.S. Coast Guard; activity described in paragraphs (1) (2) Any special agent or enforcement through (3) of this definition. officer of the National Marine Fish- Footrope means a weighted rope or eries Service; cable attached to the lower lip (bottom (3) Any officer designated by the head edge) of the mouth of a trawl net along of a Federal or state agency that has the forwardmost webbing. entered into an agreement with the Footrope length means the distance Secretary or the Commandant of the between the points at which the ends of Coast Guard to enforce the provisions the footrope are attached to the trawl of the Act; or net, measured along the forwardmost (4) Any Coast Guard personnel ac- webbing. companying and acting under the di- Foreign commerce includes, among rection of any person described in para other things, any transaction (1) be- graph (1) of this definition. tween persons within one foreign coun- Bait shrimper means a shrimp trawler try, or (2) between persons in two or that fishes for and retains its shrim more foreign countries, or (3) between catch alive for the purpose of selling it a person within the United States and for use as bait. a person in one or more foreign coun- tries, or (4) between persons within the Commercial activity means all activi- United States, where the fish or wild- ties of industry and trade, including, life in question are moving in any but not limited to, the buying or sell- country or countries outside the ing of commodities and activities con- United States. ducted for the purpose of facilitating Four-seam, straight-wing trawl means such buying and selling: Provided, how- a design of shrimp trawl in which the ever, That it does not include the exhi- main body of the trawl is formed from bition of commodities by museums or a top panel, a bottom panel, and two similar cultural or historical organiza- side panels of webbing. The upper and tions. lower edges of the side panels of web- Country of exportation means the last bing are parallel over the entire length. country from which the animal was ex- Four-seam, tapered-wing trawl means a ported before importation into the design of shrimp trawl in which the United States. main body of the trawl is formed from Country of origin means the country a top panel, a bottom panel, and two where the animal was taken from the side panels of webbing. The upper and wild, or the country of natal origin of lower edges of the side panels of web- the animal. bing converge toward the rear of the Fish or wildlife means any member of trawl. the animal kingdom, including without Gulf Area means all waters of the limitation any mammal, fish, bird (in- Gulf of Mexico west of 81°W. longitude cluding any migratory, nonmigratory, (the line at which the Gulf Area meets or endangered bird for which protec- the Atlantic Area) and all waters tion is also afforded by treaty or other shoreward thereof(including ports). international agreement), amphibian, Gulf Shrimp Fishery-Sea Turtle Con- reptile, mollusk, crustacean, arthropod servation Area (Gulf SFSTCA)means the or other invertebrate, and includes any offshore waters extending to 10 nau- part, product, egg, or offspring thereof, tical miles (18.5 km) offshore along the or the dead body or parts thereof. coast of the States of Texas and Louisi- Fishing, or to fish, means: ana from the South Pass of the Mis- (1) The catching taking or harvesting sissippi River (west of 89°08.5'W. long.) of fish or wildlife; to the U.S.-Mexican border. �\ 73 §217.12 50 CFR Ch. 11 (10-1-98 Edition) Hard TED means a rigid deflector (Coast Charts, 1:80,000 scale) and as de- grid and associated hardware designed scribed in 33 CFR part 80. to be installed in a trawl net forward of Permit or "Certificate of exemption" the codend for the purpose of excluding means any document so designated by sea turtles from the net. the National Marine Fisheries Service Headrope means a rope that is at- and signed by an authorized official of tached to the upper lip (top edge) of the the National Marine Fisheries Service, mouth of a trawl net along the including any document which modi- forewardmost webbing. fies, amends, extends or renews any Headrope length means the distance permit or certificate of exemption. between the points at which the ends of Person means an individual, corpora- the headrope are attached to the trawl tion, partnership, trust, association, or net, measured along the forewardmost any other private entity, or any offi- webbing. cer, employee, agent, department, or Import means to land on, bring into, instrumentality of the Federal Govern- or introduce into, or attempt to land ment, of any State or political subdivi- on, bring into, or introduce into any sion thereof, or of any foreign govern- place subject to the jurisdiction of the ment. United States, whether or not such Possession means the detention and landing, bringing, or introduction con- control, or the manual or ideal custody stitutes an importation within the of anything which may be the subject meaning of the tariff laws of the of property, for one's use and enjoy- United States. ment, either as owner or as the propri- i-.., Inshore means marine and tidal wa- etor of a qualified right in it, and ei- ters landward of the 72 COLREGS de- ther held personally or by another who marcation line (International Regula- exercises it in one's place and name. tions for Preventing Collisions at Sea, Possession includes the act or state of 1972), as depicted or noted on nautical possessing and that condition of facts charts published by the National Oce- under which one can exercise his power anic and Atmospheric Administration over a corporeal thing at his pleasure (Coast Charts, 1:80,000 scale) and as de- to the exclusion of all other persons. scribed in 33 CFR part 80. Possession includes constructive pos- Leatherback conservation zone means session which means not actual but as- all inshore and offshore waters bounded sumed to exist, where one claims to on the south by a line along 28°24.6'N. hold by virtue of some title, without lat. (Cape Canaveral, FL), and bounded having actual custody. on the north by a line along 36°30.5'N. Pre-Act endangered species part means lat. (North Carolina-Virginia border). any sperm whale oil, including deriva- Length in reference to a shrimp tives and products thereof, which was trawler, means the distance from the lawfully held within the United States tip of the vessel's bow to the tip of its on December 28, 1973 in the course of a stern. commercial activity; or any finished North Carolina restricted area means scrimshaw product, if such product or that portion of the offshore waters the raw material for such product was bounded on the north by a line along lawfully held within the United States 34°17.6' N. latitude (Rich Inlet, North on December 28, 1973, in the course of a Carolina) and 34°35.7' N. latitude commercial activity. (Browns Inlet, North Carolina) to a dis- Pusher-head trawl (chopsticks) means tance of 1 nautical mile seaward of the a trawl that is spread by poles sus- 72 COLREGS demarcation line (Inter- pended in a "V" configuration from the national Regulations for Preventing bow of the trawler. Collisions at Sea, 1972). Right whale, as used in subpart D of Offshore means marine and tidal wa- this part, means any whale that is a ters seaward of the 72 COLREGS de- member of the western North Atlantic marcation line (International Regula- population of the northern right whale tions for Preventing Collisions at Sea, species (Eubalaena glacialis). 1972), as depicted or noted on nautical Scrimshaw product means any art charts published by the National Oce- form which involves the substantial anic and Atmospheric Administration etching or engraving of designs upon, 74 National Marine Fisheries Service/NOAA, Commerce §217.12 or the substantial carving of figures, lina border), except as provided in patterns, or designs from any bone or paragraph (2) of this definition. tooth of any marine mammal of the (2) [Reserved] order Cetacea. For purposes of this Summer flounder trawler means any part, polishing or the adding of minor vessel that is equipped with one or superficial markings does not con- more bottom trawl nets, and that is ca- stitute substantial etching, engraving pable of, or used for, fishing for noun- or carving. der, or whose on-board or landed catch Secretary means the Secretary of of flounder is more than 100 pounds Commerce or his authorized represent- (45.4 kg). ative. Take means to harass, harm, pursue, Shrimp means any species of marine hunt, shoot, wound, kill, trap, capture, shrimp (Order Crustacea) found in the or collect, or attempt to harass, harm, Atlantic Area or the Gulf Area, includ- pursue, hunt, shoot, wound, kill, trap, ing,but not limited to: capture,or collect. (1) Brown shrimp (Penaeus aztecus); Taper, in reference to the webbing (2) White shrimp (P. setiferus); used in trawls, means the angle of a (3) Pink shrimp (P. duorarum); cut used to shape the webbing, ex- (4) Rock shrimp (Sicyonia brevirostris); pressed as the ratio between the cuts (5) Royal red shrimp (Hymenopenaeus that reduce the width of the webbing ro(5) tus ); and by cutting into the panel of webbing (6) Seabob shrimp (Xiphopenaeus through one row of twine (bar cuts) and kroyeri). the cuts that extend the length of the Shrimp trawler means any vessel that panel of webbing by cutting straight ""'N aft is equipped with one or more trawl nets twine (through twoadjoining rows of (point cuts). For example, se- and that is capable of, or used for, fish- quentially cutting through the lengths ing for shrimp, or whose on-board or of twine on opposite sides of a mesh, landed catch of shrimp is more than 1 leaving an uncut edge of twines all percent, by weight, of all fish compris- lying in the same line, produces a rel- ing its on-board or landed catch. atively strong taper called "all-bars"; Skimmer trawl means a trawl that ex- making a sequence of 4-bar cuts fol- tends from the outrigger of a vessel lowed by 1-point cut produces a more with a cable and a lead weight holding gradual taper called "4 bars to 1 point" the trawl mouth open. or "4blp"; similarly, making a se- Soft TED means a panel of poly- quence of 2-bar cuts followed by 1-point propylene or polyethylene netting de- cut produces a still more gradual taper signed to be installed in a trawl net called "2blp"; and making a sequence forward of the codend for the purpose of cuts straight aft does not reduce the of excluding sea turtles from the net. width of the panel and is called a State means any State of the United "straight" or"all-points" cut. States, the District of Columbia, the Taut means a condition in which Commonwealth of Puerto Rico, Amer- there is no slack in the net webbing. ican Samoa, the Virgin Islands, Guam, TED (turtle excluder device) means a and the Trust Territory of the Pacific device designed to be installed in a Islands. trawl net forward of the codend for the Stretched mesh size means the dis- purpose of excluding sea turtles from tance between the centers of the two the net. opposite knots in the same mesh when Test net, or try net,means a net pulled pulled taut. for brief periods of time just before, or Summer flounder means the species during, deployment of the primary Paralichthys dentatus. net(s) in order to test for shrimp con- Summer flounder fishery-sea turtle pro- centrations or determine fishing condi- tection area means: tions (e.g., presence or absence of bot- (1) All offshore waters, bounded on tom debris, jellyfish, bycatch, sea- the north by a line along 37°05'N. lati- grasses, etc.). tude (Cape Charles, VA) and bounded Tongue means any piece of webbing on the south by a line along 33°35' N. along the top, center, leading edge of a latitude (North Carolina-South Caro- trawl, whether lying behind or ahead of /*"'\ 75 §217.21 50 CFR Ch. II (10-1-98 Edition) the headrope, to which a towing bridle 742b); sec. 11(f), Endangered Species Act of can be attached for purposes of pulling 1973, Pub. L. 93-205, 87 Stat. 884 (16 U.S.C. the trawl net and/or adjusting the 1540). shape of the trawl. SOURCE: 45 FR 57133, Aug. 27, 1980, unless Transportation means to ship, convey, otherwise noted. carry or transport by any means what- ever, and deliver or receive for such §217.21 Assistant Administrator. shipment, conveyance, carriage, or Mail forwarded to the Assistant Ad- transportation. ministrator for Fisheries should be ad- Triple-wing trawl means a trawl with dressed: a tongue on the top, center, leading edge of the trawl and an additional Assistant Administrator for Fisheries,F National Marine Fisheries Service tongue along the bottom, center, lead- Washington,DC 20235. ing edge of the trawl. Two-seam trawl means a design of §217.22 Office of Marine Mammals and shrimp trawl in which the main body of Endangered Species. the trawl is formed from a top panel Mail in regard to permits should be and a bottom panel of webbing that are addressed to: directly attached to each other down the sides of the trawl. Office of Marine Mammals and Endangered Underway, with respect to a vessel, Species,F/MM means that the vessel is not at anchor, National Marine Fisheries Service or made fast to the shore, or aground. Washington,DC 20235. United States means the several §217.23 Enforcement Division. States of the United States of America, the District of Columbia, the Common- Mail in regard to enforcement and wealth of Puerto Rico, American certificates of exemption should be ad- Samoa, the Virgin Islands, Guam, and dressed to: the Trust Territory of the Pacific Is- Enforcement Division,F/CM5 lands. National Marine Fisheries Service Vessel includes every description of Washington,DC 20235. watercraft, including nondisplacement craft and seaplanes, used or capable of PART 220—GENERAL PERMIT being used as a means of transpor- PROCEDURES tation on water. Vessel restricted in her ability to ma- Subpart A—Introduction neuver has the meaning specified for this term at 33 U.S.C. 2003(g). Sec. Whoever means the same as person. 220.1 General. Wildlife means the same as fish or 220.2 Purpose of regulations. wildlife. 220.3 Scope of regulations. net (butterfly trawl) means a 220.4 Emergency variation from require- Wingments. trawl with a rigid frame, rather than trawl door, holding the trawl mouth Subpart B—Application for Permits open. 220.11 Procedure for obtaining a permit. (Sec. 3(d), Fish and Wildlife Act of 1956, as 220.12 [Reserved] amended, 88 Stat. 92 (16 U.S.C. 742b); sec. 220.13 Abandoned application. 11(f),Endangered Species Act of 1973,Pub. L. 93-205,87 Stat.884(16 U.S.C. 1540)) Subpart C—Permit Administration [45 FR 57132,Aug.27, 1980] 220.21 Issuance of permits. EDITORIAL NOTE:For FEDERAL REGISTER ci- 220.22 Duration of permit. tations affecting§217.12, see the List of CFR 220.23 [Reserved] Sections Affected in the Finding Aids sec- 220.24 Renewal of permit. tion of this volume. 220.25 Permits not transferable;agents. 220.26 Right of succession by certain per- Subpart C—Addresses sons. p 220.27 Change of mailing address. 220.28 Change in name. AUTHORITY:Sec.3(d), Fish and Wildlife Act 220.29-220.30 [Reserved] of 1956, as amended, 88 Stat. 92 (16 U.S.C. 220.31 Discontinuance of activity. 76 ✓-r National Marine Fisheries Service/NOAA, Commerce §220.13 Subpart D—Conditions §220.3 Scope of regulations. 220.42 Permits are specific. The provisions in this part are in ad- 220.43 Alteration of permits. dition to, and are not in lieu of, other 220.44 Display of permit. permit regulations of parts 217 through 220.45 Filing of reports. 222 of thischapterand apply all per- 220.46 Maintenance of records. pp y to p 220.47 Inspection requirement. mits issued thereunder, including "En- dangered Fish or Wildlife" (part 222). Subpart E—Permits Involving Endangered or Threatened Sea Turtles §220.4 Emergency variation from re- 220.50 Purpose. quirements. 220.51 Permit applications. The Director may approve variations 220.52 Issuance of permits. from the requirements of this part 220.53 Other requirements. when he finds that an emergency exists AUTHORITY: Endangered Species Act of and that the proposed variations will 1973,sec. 11(1),87 Stat.884,Pub. L.93-205;act not hinder effective administration of of August 31, 1951,Ch.376.Title 5,sec.501,65 parts 217 through 222 of this chapter, Stat.290(31 U.S.C.483a). and will not be unlawful. SouRCE: 39 FR 41373, Nov. 27, 1974, unless otherwise noted. Subpart B—Application for Permits Subpart A—Introduction §220.11 Procedure for obtaining a per- §220.1 General. mit. Each person intending to engage in The following general procedures /."'N an activity for which a permit is re apply to applications for permits: quired by parts 217 through 222 of this (a) Forms. Applications must be sub- chapter or the Endangered Species Act mitted by letter containing all nec- of 1973 shall, before commencing such essary information, attachments, cer- activity, obtain a valid permit author- tification, and signature. In no case izing such activity. Each person who will oral or telephone applications be desires to obtain the permit privileges accepted. authorized by parts 217 through 222 of (b) Forwarding instructions. Applica- this chapter must make application for tions must be submitted to the Direc- such permit in accordance with the re- tor, National Marine Fisheries Service. quirements of this part 220 of this The address is listed in§217.21. chapter and the other regulations in ns parts 217 through 222 of this chapter must Time requirement.the apprApplopriate be received by the appropriate of- which set forth the additional require- ficial of the National Marine Fisheries ments for the specific permits desired. Service at least 90 calendar days prior If the activity for which permission is to the date on which the applicant de sought is covered by the requirements sires to have the permit made effec- of more than one part of parts 217 tive. The National Marine Fisheries through 222 of this chapter, the re Service will, in all cases, attempt to quirements of each part must be met. p If the information required for each process applications deemed sufficient specific permitted activity is included, in the shortest possible time. The Na- one application may be accepted for all tional Marine Fisheries Service does permits required, and a single permit not, however, guarantee 90 days may be issued. issuance after publication in the FED- ERAL REGISTER of receipt of a permit §220.2 Purpose of regulations. application and some permits cannot The regulations contained in this be issued within that time period. part will provide uniform rules and procedures for application, issuance, §220.12 [Reserved] renewal, conditions, and general ad- §220.13 Abandoned application. ministration of permits issuable pursu- ant pp ant to parts 217 through 222 of this Upon receipt of an insufficiently or chapter. improperly executed application, the 77 §220.21 50 CFR Ch. 11 (10-1-98 Edition) applicant shall be notified of the defi- ministrative decision of the Depart- ciency in the application. If the appli- ment. cant fails to supply the deficient infor- mation or otherwise fails to correct the [39 FR 41373, Nov. 27, 1974, as amended at 49 FR 1042,Jan.6, 1984] deficiency within 60 days following the date of notification, the application §220.22 Duration of permit. shall be considered abandoned. Permits shall entitle the person to whom issued to engage in the activity Subpart C—Permit Administration specified in the permit, within the lim- itations of the applicable statute and regulations contained in parts 217 (a) No permit may be issued prior to through 222 of this chapter for the pe- the receipt of a written application riod stated on the permit, unless soon- therefor, unless a written variation er modified, suspended, or revoked pur- from the requirements, as authorized suant to subpart D of 15 CFR part 904. by §220.4 is inserted into the official file of the National Marine Fisheries [99 FR 1042,Jan.6, 1984] Service. Any representation of an em- §220.23 [Reserved] ployee or agent of the United States Government shall not be construed as a §220.24 Renewal of permit. permit unless it meets the Where the permit is renewable and a requirements of a permit as defined in permittee intends to continue the ac- 50 CFR 217.12. tivity described in the permit during (b) The Director shall issue the ap- any portion of the year ensuing its ex- propriate permit unless— piration, he shall, unless otherwise no- (1) Denial of a permit has been made tified in writing by the Director, file a pursuant to subpart D of 15 CFR part request for permit renewal, together 904; with a certified statement that the in- (2) The applicant has failed to dis- formation in his original application is close material information required, or still currently correct, or a statement has made false statements as to any of all changes in the original applica- material fact, in connection with his tion, accompanied by any required fee application; at least 30 days prior to the expiration (3) The applicant has failed to dem- of his permit. Any person holding a onstrate a valid justification for the valid renewable permit, who has com- permit or a showing of responsibility; plied with the foregoing provision of (4) The authorization requested po- this section, may continue such activi- tentially threatens a wildlife popu- ties as were authorized by his expired lation,or permit until his renewal application is (5) The Director finds through fur- acted upon. ther inquiry or investigation, or other- wise, that the applicant is not quali- §220.25 Permits not transferable; fied. agents. (c) Each permit shall bear a serial (a) Permits issued under parts 220 number. Such number may be reas- through 222 are not transferable or as- signed to the permittee to whom issued signable. Some permits authorize cer- so long as he maintains continuity of tain activities in connection with a renewal. business or commercial enterprise and (d) The applicant shall be notified in in the event of any lease, sale,or trans- writing of the denial of any permit re- fer of such business entity, the succes- quest, and the reasons therefor. If au- sor must obtain a permit prior to con- thorized in the notice of denial, the ap- tinuing the permitted activity. How- plicant may submit further informa- ever, certain limited rights of succes- tion, or reasons why the permit should sion are provided in§220.26. not be denied. Such further submis- (b) Except as otherwise stated on the sions shall not be considered a new ap- face of a permit, any person who is plication. The final action by the Di- under the direct control of the permit- rector shall be considered the final ad- tee, or who is employed by or under 78 National Marine Fisheries Service/NOAA, Commerce §220.45 contract to the permittee for the pur- M220.29-220.30 [Reserved] poses authorized by the permit, may carry out the activity authorized by §220.31 Discontinuance of activity. the permit. When any permittee discontinues his §220.26 Right of succession by certain activity, he shall, within 30 days there- p2rsos. of, mail his permit and a request for cancellation to the issuing officer, and (a) Certain persons, other than the said permit shall be deemed void upon permittee, are granted the right to receipt. No refund of any part of an carry on a permitted activity for the amount paid as a permit fee shall be remainder of the term of a current per- made where the operations of the per- mit provided they comply with the pro- mittee are, for any reason, discon- visions of paragraph (b) of this section. tinued during the tenure of an issued Such persons are the following: permit. (1) The surviving spouse, child, ex- ecutor, administrator, or other legal Subpart D—Conditions representative of a deceased permittee; and §220.42 Permits are specific. (2) A receiver or trustee in bank- The authorizations on the face of a ruptcy or a court designated assignee permit which set forth specific times, for the benefit of creditors. dates, places, methods of taking, num- (b) In order to secure the right pro- bers and kinds of fish or wildlife, loca- vided in this section,the person or per- tion of activity, authorize certain cir- P"'N sons desiring to continue the activity cumscribed transactions, or otherwise shall furnish the permit to the issuing permit a specifically limited matter, officer for endorsement within 90 days are to be strictly construed and shall from the date the successor begins to not be interpreted to permit similar or carry on the activity. related matters outside the scope of strict construction. §220.27 Change of mailing address. §220.43 Alteration of permits. During the term of his permit, a per- Permits shall not be altered, erased, mittee may change his mailing address or mutilated, and any permit which without procuring a new permit. How- has been altered, erased, or mutilated ever, in every case notification of the shall immediately become invalid. new mailing address must be forwarded to the issuing official within 30 days §220.44 Display of permit. after such change. This section does Any permit issued under parts 220 not authorize the change of location of through 222 shall be displayed for in- the permitted activity for which an spection upon request to the Director amendment must be obtained. or his agent, or to any other person re- §220.28 Change in name. lying upon its existence. A permittee continuing to conduct a §220.45 Filing of reports. permitted activity is not required to Permittees may be required to file obtain a new permit by reason of a reports of the activities conducted mere change in trade name under under the permit. Any such reports which a business is conducted or a shall be filed not later than March 31 change of name by reason of marriage for the preceding calendar year ending or legal decree: Provided, That such December 31, or any portion thereof, permittee must furnish his permit to during which a permit was in force, un- the issuing official for endorsement less the regulations of parts 217 within 30 days from the date the per- through 222 of this chapter or the pro- mittee begins conducting the per- visions of the permit set forth other re- mitted activity under the new name. porting requirements. 79 §220.46 50 CFR Ch. II (10-1-98 Edition) §220.46 Maintenance of records. cies) or 50 CFR 17.32(a) (Threatened From the date of issuance of the per- Species) as appropriate. Applications mit, the permittee shall maintain corn- involving activities under the jurisdic- plete and accurate records of any tak tion of the National Marine Fisheries ing, possession, transportation, sale, Service (NMFS) as defined in 50 CFR purchase, barter, exportation, or im- 222.23(a) and 50 CFR 227.4 shall be for- portation of fish or wildlife pursuant to warded by the WPO to NMFS. such permit. Such records shall be kept current and shall include names and §220.52 Issuance of permits. addresses of persons with whom any (a) Applications under the jurisdic- fish or wildlife has been purchased, tion of the WPO shall be reviewed and sold, bartered, or otherwise trans- acted upon in accordance with 50 CFR ferred, and the date of such trans- 17.22 or 50 CFR 17.32 as appropriate. action, and such other information as (b) NMFS shall make a complete re- may be required or appropriate. Such view of applications forwarded to it by records, unless otherwise specified, the WPO in accordance with§220.51 and shall be entered in books, legibly writ- determine the appropriate action to be ten in the English language. Such taken in accordance with 50 CFR records shall be retained for 5 years 220.21(b) and 222.23(c). In instances from the date of issuance of the permit. where the application involves activi- §220.47 Inspection requirement. ties solely within NMFS jurisdiction, NMFS shall issue permits or letters of Any person holding a permit under denial and provide WPO with copies of parts 217 through 222 of this chapter its actions. shall allow the Director's agent to (c) Where a permit application in- enter his premises at any reasonable volves activities under both NMFS and hour to inspect any fish or wildlife held FWS jurisdiction, each agency will or to inspect, audit, or copy any per- process the application for activities mits, books, or records required to be under its jurisdiction. WPO will issue kept by regulations of parts 217 either a permit or a letter of denial. through 222 of this chapter or by the Species Act of 1973. (d) Where a permit application for ac- Endangeredtivities under NMFS jurisdiction also requires a permit under the Convention Subpart E—Permits Involving En- on International Trade in Endangered dangered or Threatened Sea Species of Wild Fauna and Flora (TIAS Turtles 8249, July 1, 1975) (CITES) (50 CFR part 23), NMFS will process the application SOURCE: 43 FR 32809, July 28, 1978, unless for activities under its jurisdiction. otherwise noted. WPO will issue the final document by means of a combination ESA/CITES §220.50 Purpose. permit or a letter of denial. This subpart establishes procedures for issuance of permits for scientific §220.53 Other requirements. purposes or to enhance the propagation Permits issued by NMFS under this or survival of"endangered" or"threat- subpart shall be administered and corn- ened" sea turtles and zoological exhi- ply with the provisions of 50 CFR parts bition or educational purposes for 217 through 227 as appropriate. "threatened" sea turtles. §220.51 Permit applications. PART 221—DESIGNATED PORTS Applications for permits to take, im- port, export or engage in any other AUTHORITY: Endangered Species Act of prohibited activity involving any spe- 1973,sec. 11(1),87 Stat.884,Pub.L.93-205. cies of sea turtle listed in 50 CFR 17.11 shall be submitted to the Wildlife Per- §221.1 Importation and exportation at mit Office (WPO) of the U.S. Fish and designated ports. Wildlife Service in accordance with ei- Any fish or wildlife (other than shell- ,""'• they, 50 CFR 17.22(a) (Endangered Spe- fish and fishery products which (a) are 80 National Marine Fisheries Service/NOAA, Commerce §222.1 not endangered or not threatened spe- 222.12-2 Change of address. cies, and (b) are imported for purposes 222.12-3 Certain continuance of business. of human or animal consumption or 222.12-4 Change in trade name. taken in waters under the jurisdiction 222.12-5 gor enry law. Ri of the United States or on the high 222.12-6 Rghh t of enttry and examination. g 222.12-7 Records. seas for recreational purposes) which is 222.12-8 Record of receipt and disposition. subject to the jurisdiction of the Na- 222.12-9 Importation. tional Marine Fisheries Service, Na- 222.13 Exportation. tional Oceanic and Atmospheric Ad- 222.131 Procedure by exporter. 222.13--2 Action by Customs. ministration, Department of Com- 222.13-3 Transportation to effect expor- merce and is intended for importation tation. into or exportation from the United 222.13-4 Burden of proof;presumption. States, shall not be imported or ex- ported except at a port or ports des- Subpart C-Endangered Fish or Wildlife ignated by the Secretary of the Inte- Permits rior. The Secretary of the Interior may 222.21 General permit requirement. permit the importation or exportation 222.22 Permits for the incidental taking of at nondesignated ports in the interest endangered species. of the health or safety of the fish or 222.23 Permits for scientific purposes or to wildlife or for other reasons if he deems enhance the propagation or survival of it appropriate and consistent with the the affected endangered species. purpose of facilitating enforcement of 222.24 Procedures for issuance of permits. the Endangered Species Act and reduc- 222.25 Applications for modification of per- mit by permittee. ing the costs thereof. Importers and ex- 222.26 Amendment of permits by NMFS. t'\ porters are advised to see 50 CFR part 222.27 Procedures for suspension, revoca- 14 for importation and exportation re- tion,or modification of permits. quirements and information. 222.28 Possession of permits. [39 FR 41375,Nov.27, 1974] Subpart D-Special Prohibitions PART 222-ENDANGERED FISH OR 222.31 Approaching humpback whales in Ha- waii. WILDLIFE 222.32 Approaching North Atlantic right whales. Subpart A-Introduction 222.33 Special prohibitions relating to en- dangered Steller sea lion protection. Sec. 222.1 Purpose of regulations. Subpart E-Incidental Capture of 222.2 Scope of regulations. Endangered Sea Turtles 222.3 Definitions. 222.41 Policy regarding incidental capture Subpart B-Certificates of Exemption for of sea turtles. Pre-Act Endangered Species Parts 222.42 Special prohibitions relating to leatherback sea turtles. 222.11-1 General certificate of exemption re- quirements. AUTHORITY: 16 U.S.C. 1531-1543 and 16 U.S.C. 222.11-2 Application renewal procedure. 1361 et seq. 222.11-3 Application renewal requirements. 222.11-4 Procedures for issuance of renewals Subpart A-Introduction of certificates of exemption. 222.11-5 Application for modification of cer- §222.1 Purpose of regulations. tificate of exemption by holder. The regulations contained in this 222.11-6 Amendment of certificates of ex- g emption. part identify the species or subspecies 222.11-7 Procedures for suspension, revoca- of fish or wildlife determined to be en- tion, or modification of certificates of dangered under either the Endangered exemption. Species Conservation Act of 1969 or the 222.11-8 Purchaser provisions. Endangered Species Act of 1973, and 222.11-9 Duration of certificate of exemp- presently deemed endangered species tion. under the Endangered Species Act of 222.12 Locations covered by certificate of g P exemption. 1973, which are under the jurisdiction 222.12-1 Certificate of exemption not trans- of the Secretary of Commerce, and es- ferable;exception. tablish procedures and criteria for f,--N 81 §222.2 50 CFR Ch. [[ (10-1-98 Edition) issuance of permits for the taking, im- that an applicant must submit when portation, exportation, or otherwise applying for an incidental take permit. prohibited acts, involving endangered Conservation plans also are known as fish or wildlife. The regulations of this "habitat conservation plans" or part implement, in part, the Endan- "HCPs." gered Species Act of 1973, 87 Stat. 884, Operating conservation program means Pub. L. 93-205, as amended. those conservation management activi- [45 FR 57133,Aug.27, 1980] ties which are expressly agreed upon and described in a conservation plan or §222.2 Scope of regulations. its Implementing Agreement, if any, (a) The regulations of this part apply and which are to be undertaken for the only to endangered fish or wildlife. affected species when implementing an (b) The provisions in this part are in approved conservation plan, including addition to, and are not in lieu of, measures to respond to changed cir- other regulations of parts 217 through cumstances. 222 of this chapter which may require a Properly implemented conservation plan j permit or prescribe additional restric- means any conservation plan, Imple- tions or conditions for the taking, im- menting Agreement and permit whose portation, exportation, and interstate commitments and provisions have been transportation of fish or wildlife. (See or are being fully implemented by the also parts 220 and 221 of this chapter.) permittee. [45 FR 57133,Aug.27, 1980] Unforeseen circumstances means changes in circumstances affecting a i� §222.3 Definitions. species or geographic area covered by a conservation plan that could not rea- These definitions apply only to sonably have been anticipated by plan §222.22: developers and NMFS at the time of Adequately covered means, with re- the conservation plan's negotiation spect to species listed pursuant to sec- and development, and that result in a tion 4 of the ESA, that a proposed con- substantial and adverse change in the servation plan has satisfied the permit status of the covered species. issuance criteria under section 10(a)(2)(B) of the ESA for the species [63 FR 8872,Feb.23, 1998] covered by the plan and, with respect to unlisted species, that a proposed Subpart B—Certificates of Exemp- conservation plan has satisfied the per- tion for Pre-Act Endangered mit issuance criteria under section Species Parts 10(a)(2)(B) of the ESA that would other- wise apply if the unlisted species cov- ered by the plan were actually listed. SOURCE: 45 FR 57134, Aug. 27, 1980, unless For the Services to cover a species otherwise noted. under a conservation plan, it must be listed on the section 10(a)(1)(B) permit. §222.11-1 General certificate of ex- Changed circumstances means changes emption requirements. in circumstances affecting a species or (a) The Assistant Administrator, pur- geographic area covered by a conserva- suant to the provisions of the Endan- tion plan that can reasonably be an- gered Species Act, and pursuant to the ticipated by plan developers and NMFS provisions of this paragraph, may ex- and that can be planned for (e.g., the empt any pre-Act endangered species listing of new species, or a fire or other part from one or more of the following: natural catastrophic event in areas (1) The prohibition, as set forth in prone to such events). section 9(a)(1)(A) of the Act, to export Conserved habitat areas means areas any such species part from the United explicitly designated for habitat res- States; toration, acquisition, protection, or (2) The prohibitions, as set forth in other conservation purposes under a section 9(a)(1)(E) of the Act, to deliver, conservation plan. receive, carry, transport, or ship in Conservation plan means the plan re- interstate or foreign commerce, by any quired by section 10(a)(2)(A) of the ESA means whatsoever and in the course of 82 National Marine Fisheries Service/NOAA, Commerce §222.11-3 a commercial activity any such species tion requested is not applicable, put part; "N.A.") and such other information (3) The prohibitions, as set forth in that the Assistant Administrator may section 9(a)(1)(F) of the Act, to sell or require. offer for sale in interstate or foreign [45 FR 57134,Aug.27, 1980] commerce any such species part. (b) No person shall engage in any of §222.11-3 Application renewal re- the above activities involving any pre- quirements. Act endangered species part without a valid certificate of exemption, or evi- (a) The following information will be used as the basis for determining dence of a right thereunder, issued pur- suant to this subpart B. whether an application for renewal of a (c) After January 31, 1984, no person certificate of exemption is complete: may export; deliver, receive, carry, (1) Title: Application for Renewal of transport or ship in interstate or for- Certificate of Exemption Under Pub. L. eign commerce in the course of a com- 97-304. mercial activity; or sell or offer for (2) The date of application. in- sale in interstate or foreign commerce (3) The identity of the applicantignlrany pre-Act finished scrimshaw prod- cl tificateng of exemptione nanumber,original cert uct unless that person has been issued current address, and telephone number, includ- a valid certificate of exemption and the ing zip and area codes. If the applicant product or the raw material for such is a corporation, partnership, or asso- product was held by such certificate ciation set forth the details. holder on October 13, 1982. (4) The period of time for which a re- fi'"•• [45 FR 57134, Aug. 27, 1980, as amended at 50 newal of the certificate of exemption is FR 12808,Apr. 1,1985] requested; however, no renewal of cer- tificate of exemption, or right claimed PP P thereunder, shall be effective after the dure. close of the three-year period begin- (a) Any person to whom a certificate ping on the date of the expiration of of exemption has been issued by the the previous renewal of the certificate National Marine Fisheries Service and of exemption. who desires to obtain a renewal of such (5)(i) A complete and detailed up- certificate of exemption may make ap- dated inventory of all pre-Act endan- plication therefor to the Assistant Ad- gered species parts for which the appli- ministrator. The sufficiency of the ap- cant seeks exemption. Each item on plication shall be determined by the the inventory must be identified by the Assistant Administrator in accordance following information: a unique serial with the requirements of this part and, number; the weight of the item in in that connection, he may waive any grams, to the nearest whole gram; and requirement for information, or require a description in detail sufficient to per- any elaboration for further informa- mit ready identification of the item. tion deemed necessary. Small lots, not exceeding five pounds (b) One copy of a completed applica- (2,270 grams), of scraps or raw material, tion for renewal shall be submitted to which may include or consist of one or the Assistant Administrator for Fish- more whole raw whale teeth, may be eries, National Marine Fisheries Serv- identified by a single serial number and ice,Washington, DC 20235. total weight. All finished scrimshaw (c) The outside of the envelope should items subsequently made from a given be marked, ATTENTION: Enforcement lot of scrap may be identified by the Division, "Certificate of Exemption lot serial number plus additional digits Request." Assistance may be obtained to signify the piece number of the indi- by writing or calling the Enforcement vidual finished item. Identification Division, NMFS, in Washington, DC numbers will be in the following for- (AC 202, 634-7265). At least 15 days mat: 00-000000-0000. The first two digits should be allowed for processing. An will be the last two digits of the appro- application for a certificate of exemp- priate certificate of exemption number; tion shall provide the information con- the next six digits, the serial number of tained in §222.11-3 (when the informa- the individual piece or lot of scrap or 83 §222.11-4 50 CFR Ch. 11 (10-1-98 Edition) raw material; and the last four digits, by the Assistant Administrator which where applicable, the piece number of the Assistant Administrator deems suf- an item made from a lot of scrap or ficient, he shall, as soon as practicable, raw material. The serial numbers for issue a certificate of renewal to the ap- each certificate holder's inventory plicant. must begin with 000001, and piece num- bers, where applicable, must begin with §222.11-5 Application for modification 0001 for each separate lot. of certificate of exemption by hold- (ii) Identification numbers may be af- er. fixed to inventory items by any means, Where circumstances have changed including, but not limited to, etching so that an applicant or certificate of the number into the item, attaching a exemption holder desires to have any label or tag bearing the number to the material term or condition of his a li item, or sealing the item in a plastic pp bag, wrapper or other container bear cation or certificate modified, he must ing the number. Provided that, the submit in writing full justification and number must remain affixed to the supporting information in conformance item until it is sold to an ultimate with the provisions of this part. user, as defined in §222.11-8(b) of this part. §222.11-6 Amendment of certificates (iii) No renewals will be issued for of exemption. scrimshaw products in excess of any All certificates are issued subject to quantities declared in the original ap- the condition that the Assistant Ad- plication for a certificate of exemption. ministrator reserves the right to (6) A certification in the following amend the provisions of a certificate of language: exemption for just cause at any time. I hereby certify that the foregoing infor- Such amendments take effect on the mation is complete, true, and correct to the date of notification, unless otherwise best of my knowledge and belief. I under- specified. stand that this information is submitted for the purpose of obtaining a renewal of my cer- tificate of exemption under the Endangered §222.11-7 Procedures for suspension, Species Act of 1973, as amended by Pub. L. revocation, or mod oon. tion of cer- 94-359, 90 Stat. 911, Pub. L. 96-159, 93 Stat. tificates of exemption. 1225, Pub. L. 97-304, 95 Stat. 715, and the De- Any violation of the applicable provi- partment of Commerce regulations issued sions of parts 217 through 222 of this thereunder, and that any false statement chapter, or of the Act,or of a condition may subject me to the criminal penalties of 18 U.S.C. 1001, or to the penalties under the of the certificate of exemption may Endangered Species Act of 1973. subject the certificate holder to the (7) Signature of the applicant. following: (b) Upon receipt of an incomplete or (a) The penalties provided in the Act; improperly executed application for re- and newal, the applicant shall be notified (b) Suspension, revocation, or modi- by Certified Mail of the deficiency in fication of the certificate of exemption, the application for renewal. If the ap- as provided in subpart D of 15 CFR part plication for renewal is not corrected 904. and received by the Assistant Adminis- trator within 30 days following the [49 FR 1042,Jan.6,1989) date of receipt of notification, the ap- §222.11-8 Purchaser provisions. plication for renewal shall be consid- ered as having been abandoned. (a) Any person granted a certificate [45 FR 57134, Aug. 27, 1980, as amended at 50 of exemption, including a renewal, FR 12808,Apr. 1, 1985] under this subpart, upon a sale of any exempted pre-Act endangered species §222.11-4 Procedures for issuance of part, must provide the purchaser in renewals of certificates of exemp- writing with a description (including tion. full identification number) of the part Whenever application for a renewal sold, and must inform the purchaser in of a certificate of exemption is received writing of the purchaser's obligation 0••••••., 84 National Marine Fisheries Service/NOAA, Commerce §222.12-2 under paragraph (b) of this section, in- §222.12 Locations covered by certifi- cluding the address given in the certifi- cate of exemption. cate to which the purchaser's report is The certificate of exemption covers to be sent. the business or activity specified in the (b) Any purchaser of pre-Act endan- certificate of exemption at the address gered species parts included in a valid described therein. No certificate of ex- certificate of exemption, unless an ul- emption is required to cover a separate timate user, must within 30 days after warehouse facility used by the certifi- the receipt of such parts submit a writ- cate of exemption holder solely for ten report to the address given in the storage of pre-Act endangered species certificate specifying the quantity of parts, if the records required by this such parts or products received, the subpart are maintained at the address name and address of the seller, a copy specified in the certificate of exemp- of the invoice or other document show tion which is served by the warehouse ing the serial numbers, weight, and de- scriptions of the parts or products re- ceived, the date on which such parts or [50 FR 12809,Apr. 1,19851 products were received, and the in- tended use of such parts by the pur- §222.12-1 Certificate of exemption not chaser. An ultimate user, for purposes transferable;exception. of this paragraph, means any person Certificates of exemption issued who acquired such endangered species under this subpart are not transferable: part or product for his own consump- Provided,That in the event of the lease, tion or personal use (including as sale or other transfer of the operations "'"N gifts),and not for resale. or activity authorized by the certifi- (c) After January 31, 1984, no pur- cate of exemption the successor is not chaser may export; deliver, receive, required by this subpart to obtain a carry or transport in interstate or for- new certificate of exemption prior to eign commerce in the course of a corn- commencing such operations or activ- mercial activity; or sell or offer for ity. In such case, the successor will be sale in interstate or foreign commerce treated as a purchaser and must com- any endangered species part or product ply with the record and reporting re- even though such part or product was quirements set forth in§222.11-8. acquired under a certificate of exemp- tion either prior to or subsequent to [45 FR 57134, Aug. 27, 1980, as amended at 50 that date. FR 12809,Apr. 1,1985] [50 FR 12808,Apr. 1,1985] §222.12-2 Change of address. §222.11-9 Duration of certificate of ex- A certificate of exemption holder emption. may during the term of the certificate A certificate of exemption is valid of exemption move his business or ac- only if renewed in accordance with the tivity to a new location at which he in- procedures set forth in§222.11-3 of this tends regularly to carry on such busi- part. All certificates so renewed will be ness or activity, without obtaining a new certificate of exemption. However, valid for a period beginning April 1, 1985, and ending no later than March in every case, notification of the new 31, 1988. A renewed certificate of ex location of the business or activity emption entitles the holder to engage must be given in writing within 10 days in the business or activity specified in of such move to the Assistant Adminis- the certificate of exemption, within trator. In each instance, the certificate the limitations of the Act and the reg- of exemption must be endorsed by the ulations contained in this subpart, for Assistant Administrator. After en- the period stated in the certificate of dorsement of the certificate of exemp- exemption,unless sooner terminated. tion the Assistant Administrator will provide an amended certificate of ex- [50 FR 12808, Apr. 1, 1985, as amended at 50 emption to the person to whom issued. FR 25713,June 21, 1985] 85 n §222.12-3 50 CFR Ch. 11 (10-1-98 Edition) §222.12-3 Certain continuance of busi- form, and shall be retained at the ad- ness. dress shown on the certificate of ex- A certificate of exemption holder emption, or at the principal address of who requests that his certificate of ex- a purchaser in the manner prescribed emption be amended by the Assistant by this subpart. Administrator for corrections or en- [45 FR 57134, Aug. 27, 1980, as amended at 50 dorsement in compliance with the pro- FR 12809,Apr. 1, 1985] visions contained in this subpart, may continue his operations while awaiting §222.12-8 Record of receipt and dis- action by the Assistant Administrator. position. §222.12-4 Change in trade name. (a) Holders of certificates of exemp- tion must maintain records of all pre- A certificate holder continuing to Act endangered species parts they re- conduct business at the location shown ceive, sell, transfer, distribute or dis- on his certificate of exemption is not pose of otherwise. Purchasers of pre- required to obtain a new certificate of Act endangered species parts, unless exemption by reason of a change in ultimate users, must similarly main- trade name under which he conducts tain records of all such parts or prod- his business: Provided, That such cer- ucts they receive. tificate of exemption holder requests in (b) Such records as referred to in writing that his certificate of exemp- paragraph (a) of this section may con- tion be endorsed to reflect such change sist of invoices or other commercial of name to the Assistant Adminis- records which must be filed in an or- /'� trator within 30 days from the date the derly manner separate from other com- certificate of exemption holder begins mercial records maintained, and be his business under the new name. readily available for inspection. Such §222.12-5 State or other law. records must (1) show the name and ad- dress of the purchaser, seller, or other A certificate of exemption issued transferor; (2) show the type, quantity, under this subpart confers no right or and identity of the part or product; (3) privilege to conduct a business or an show the date of such sale or transfer; activity contrary to State or other and (4) be retained, in accordance with law. Similarly, compliance with the the requirements of this subpart, for a provisions of any State or other law af- period of not less than three years fol- fords no immunity under any Federal lowing the date of sale or transfer. laws or regulations of any other Fed- Each pre-Act endangered species part eral Agency. will be identified by its number on the §222.12-6 Right of entry and examina- updated inventory required to renew a tion. certificate of exemption. Anyperson authorized to enforce the (c)(1) Each certificate of exemption holder must submit a quarterly report Act may enter during business hours (to the address given in the certificate) the premises, including places of stor- containing all record information re- age, of any holder of a certificate of ex- quired by paragraph (b) on all transfers emption or of any purchaser for the of pre-Act endangered species parts purpose of inspecting or examining any made in the previous calendar quarter, records or documents required to be or such other record information the kept by such certificate of exemption Assistant Administrator may specify holder or successor under this subpart, from time to time. and any endangered species parts at (2) Quarterly reports are due on Jan- such premises of location. uary 15, April 15, July 15, and October [45 FR 57134, Aug. 27, 1980, as amended at 50 15. The first report is due on October FR 12809,Apr. 1,1985] 15, 1985. §222.12-7 Records. (d) The Assistant Administrator may authorize the record information to be The records pertaining to pre-Act en- submitted in a manner other than that dangered species parts prescribed by prescribed in paragraph (b) of this sec- this subpart shall be in permanent tion when it is shown by the record 86 National Marine Fisheries Service/NOAA, Commerce §222.21 holder that an alternate method of re- the port of exportation, and must pre- porting is reasonably necessary and cede or accompany the shipment in will not hinder the effective adminis- order to permit appropriate inspection tration or enforcement of this subpart. prior to lading. [45 FR 57134, Aug. 27, 1980, as amended at 50 §222.13-2 Action by Customs. FR 12809,Apr. 1, 1985] Upon receipt of a certificate of ex- §222.12-9 Importation. emption authorizing the exportation of No pre-Act endangered species part pre-Act endangered species parts or shall be imported into the United scrimshaw products, the District Direc- States, and a certificate of exemption tor of Customs may order such inspec- issued in accordance with the provi- tion as deemed necessary prior to lad- sions of this subpart confers no right or ing of the merchandise. If satisfied that privilege to import into the United the shipment is proper and agrees with States any such part. the information contained in the cer- tificate, and any endorsement thereto, §222.13 Exportation. the District Director of Customs will (a) Any person desiring to export clear the merchandise for export. The from the United States any pre-Act en- certificate, and any endorsements, will dangered species part or scrimshaw be forwarded to the Chief, Enforcement product, must possess a valid certifi- Division, F/CM5 National Marine Fish- cate of exemption issued in accordance eries Service,Washington, DC 20235. with the provisions of this subpart. §222.13-3 Transportation to effect ex- (b) In addition to other information, portation. /"\ which may be required by this subpart, of the exporter will notify the Assistant this subpart,Notwithstandingit anyll not provisione reonired shoAdw the aor bletter which shall that authorization be obtained from show the namee and addresstenofthe for- the Assistant Administrator for the eign consignee, the intended port of ex- the Assistant Administrator for the portation, and a complete description transportation in interstate or foreign of the parts to be exported. Such infor- commerce of pre-Act endangered spe- mation should reach the Assistant Ad- cies parts to effect an exportation of ministrator not less than 10 days prior such parts authorized under the provi- to shipment. sions of this subpart. (c) No pre-Act endangered species §222.13-4 Burden of proof; presump- part or scrimshaw product which is to tion. be exported from the United States person of under a certificate of exemption issued any Anypees exemption or claimingcertithee benefitf thrtefor, shalltsae exporteignatedd except St a tion under the Act or regulations, shall exemp- port or ports designated bSy the Sec- have the burden of provingthat the ex- the Interiory of tor Interior. The Stheet ryxp of_ emption or certifate is applicable, tati nat non-designated lt porte for anyhas been granted, and was valid and in reason if he dees it appropriate anforce at the time of the alleged viola- consistent with the purposes of the En- tion. dangered Species Act,as amended,or it will facilitate the administration or Subpart C—Endangered Fish or enforcement of the Act and reducing Wildlife Permits the costs thereof. Exporters are advised to see 50 CFR part 14 for a listing of the SOURCE: 39 FR 41375, Nov. 27, 1974, unless designated ports. otherwise noted. §222.13-1 Procedure by exporter. §222.21 General permit requirement. Shipment may not be made until the No person shall take, import, export, requirements of§222.13 are met by the or engage in any other prohibited ac- exporter. A copy of the certificate of tivity involving, any species or sub- exemption, and any endorsements species of fish or wildlife which the thereto, must be sent by the exporter Secretary has determined to be endan- to the District Director of Customs at gered under the Endangered Species /"\ 87 §222.22 50 CFR Ch. 11 (10-1-98 Edition) Act of 1973, as evidenced by its inclu- (ii) Application for a General Inci- sion on the list of endangered fish or dental Take Permit under the Endan- wildlife (see 50 CFR chapter I, part 17) gered Species Act of 1973. or which the Secretary of the Interior (2) The name, address and telephone determined to be endangered under the number of the applicant. If the appli- Endangered Species Conservation Act cant is a partnership, corporate entity of 1969 and which are now under the ju- or is representing a group or organiza- risdictional responsibilities of the Sec- tion,the applicable details. retary of Commerce, without a valid (3) The species or stocks, by common permit issued pursuant to this part. and scientific name, and a description (Pub.L.94-359) of the status, distribution, seasonal distribution, habitat needs, feeding [91 FR 36028,Aug.26, 1976] habits and other biological require- ments of the affected species or stocks. §222.22 Permits for the incidental tak- of endangered species. (4) A detailed description of the pro- ingposed activity, including the antici- (a) Scope. (1) The Assistant Adminis- pated dates, duration and specific loca- trator may issue permits to take en- tion. If the request is for a general inci- dangered marine species incidentally dental take permit, an estimate of the to an otherwise lawful activity under total level of activity expected to be section 10(a)(1)(B) of the Endangered conducted. Species Act of 1973. The regulations in (5) A conservation plan, based on the this section apply only to those endan- best scientific and commercial data gered species under the jurisdiction of available,which specifies the Secretary of Commerce identified (i) The anticipated impact (i.e., in§222.23(a). amount, extent and type of anticipated (2) If the applicant represents an in- taking) of the proposed activity on the dividual or a single entity, such as a species or stocks; corporation, the Assistant Adminis- (ii) The anticipated impact of the trator will issue an individual inciden- proposed activity on the habitat of the tal take permit. If the applicant rep- species or stocks and the likelihood of resents a group or organization whose restoration of the affected habitat; members conduct the same or a similar (iii) The steps (specialized equip- activity in the same geographical area ment, methods of conducting activi- with similar impacts on endangered ties, or other means) that will be taken marine species, the Assistant Adminis- to monitor, minimize and mitigate trator will issue a general incidental such impacts, and the funding avail- take permit. To be covered by a gen- able to implement such measures; and eral incidental take permit, each indi- (iv) The alternative actions to such vidual conducting the activity must taking that were considered and the have a certificate of inclusion issued reasons why those alternatives are not under paragraph (I) of this section. being used. (b) Permit application procedures. Ap- (v) A list of all sources of data used plications should be sent to the Assist- in preparation of the plan, including ant Administrator for Fisheries, Na- reference reports, environmental as- tional Marine Fisheries Service, 1335 sessments and impact statements, and East West Highway, Silver Spring, MD personal communications with recog- 20910. The sufficiency of the application nized experts on the species or activity will be determined by the Assistant who may have access to data not pub- Administrator in accordance with the lished in current literature. requirements of this section. At least (c) Issuance criteria. (1) In determin- 120 days should be allowed for process- ing whether to issue a permit, the As- ing. Each application must be signed sistant Administrator will consider the and dated and include the following: following: (1) The type of application, either: (i) The status of the affected species (i) Application for an Individual Inci- or stocks; dental Take Permit under the Endan- (ii) The potential severity of direct, /""Ngered Species Act of 1973, or indirect and cumulative impacts on the 88 APPENDIX 11: Endangered and Threatened Species Permit Conditions 50 CFR Part 17 Excerpts (FWS) 50 CFR 222.22 (NMFS) §17.1 50 CFR Ch. I (10-1-98 Edition) 17.62 Permits for scientific purposes or for section 4(a) of the Act and also carry the enhancement of propagation or sur- over the species and subspecies of wild- vival. life designated as endangered under the 17.63 Economic hardship permits. Endangered Species Conservation Act Subpart G—Threatened Plants of 1969 (83 Stat. 275, 16 U.S.C. 668cc-1 to 6) which are deemed endangered species 17.71 Prohibitions. under section 4(c)(3) of the Act. 17.72 Permits—general. 17.73-17.78 [Reserved] [40 FR 44415, Sept. 26, 1975, as amended at 42 FR 10465,Feb.22, 1977] Subpart H—Experimental Populations 17.80 Definitions. §17.2 Scope of regulations. 17.81 Listing. (a) The regulations of this part apply 17.82 Prohibitions. only to endangered and threatened 17.83 Interagency cooperation. wildlife and plants. 17.84 Special rules—vertebrates. (b) By agreement between the Serv- 17.85 Special rules—invertebrates. [Re- ice and the National Marine Fisheries served] 17.86 Special rules—plants. [Reserved] Service, the jurisdiction of the Depart- ment of Commerce has been specifi- Subpart I—Interagency Cooperation cally defined to include certain species, 17.94 Critical habitats. while jurisdiction is shared in regard to 17.95 Critical habitat—fish and wildlife. certain other species. Such species are 17.96 Critical habitat—plants. footnoted in subpart B of this part, and reference is given to special rules of ""\ Subpart—Manatee Protection Areas the National Marine Fisheries Service 17.100 Purpose. for those species. 17.101 Scope. (c) The provisions in this part are in 17.102 Definitions. addition to, and are not in lieu of, 17.103 Establishment of protection areas. other regulations of this subchapter B 17.104 Prohibitions. which may require a permit or pre- 17.105 Permits and exceptions. scribe additional restrictions or condi- 17.106 Emergency establishment of protec- tions for the importation, exportation, tion areas. and interstate transportation of wild- 17.107 Facilitating enforcement. p 17.108 List of designated manatee protec- life. tion areas. (d) The examples used in this part are AUTHORITY: 16 U.S.C. 1361-1407; 16 U.S.C. provided solely for the convenience of 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, the public, and to explain the intent 100 Stat.3500;unless otherwise noted. and meaning of the regulation to which SoUxce: 40 FR 44415, Sept. 26, 1975, unless they refer. They have no legal signifi- otherwise noted. canoe. (e) Certain of the wildlife and plants Subpart A—Introduction and listed in§§17.11 and 17.12 as endangered General Provisions or threatened are included in Appendix I, II or III to the Convention on Inter- §17.1 Purpose of regulations. national Trade in Endangered Species of Wild Fauna and Flora. The importa- (a) The regulations in this part im- tion, exportation and reexportation of plement the Endangered Species Act of such species are subject to additional 1973, 87 Stat. 884, 16 U.S.C. 1531-1543, ex- regulations provided in part 23 of this cept for those provisions in the Act subchapter. concerning the Convention on Inter- national Trade in Endangered Species [40 FR 44415, Sept. 26, 1975, as amended at 42 of Wild Fauna and Flora, for which reg- FR 10465,Feb.22, 1977] ulations are provided in part 23 of this subchapter. §17.3 Definitions. (b) The regulations identify those In addition to the definitions con- species of wildlife and plants deter- tained in part 10 of this subchapter, mined by the Director to be endangered and unless the context otherwise re- or threatened with extinction under quires, in this part 17: 96 U.S. Fish and Wildlife Serv., Interior §17.3 Act means the Endangered Species ern implements such as sewing ma- Act of 1973 (16 U.S.C. 1531-1543; 87 Stat. chines or modern techniques at a tan- 884); nery registered pursuant to §18.23(c) of Adequately covered means, with re- this subchapter (in the case of marine spect to species listed pursuant to sec- mammals) may be used so long as no tion 4 of the ESA, that a proposed con- large scale mass production industry servation plan has satisfied the permit results. Traditional native handicrafts issuance criteria under section include, but are not limited to, weav- 10(a)(2)(B) of the ESA for the species ing, carving, stitching, sewing, lacing, covered by the plan, and, with respect beading, drawing, and painting. The to unlisted species, that a proposed formation of traditional native groups conservation plan has satisfied the per- such as cooperatives, is permitted so mit issuance criteria under section long as no large scale mass production 10(a)(2)(B) of the ESA that would other- results; wise apply if the unlisted species coy- Bred in captivity or captive-bred refers ered by the plan were actually listed. to wildlife, including eggs, born or oth- For the Services to cover a species erwise produced in captivity from par- under a conservation plan, it must be ents that mated or otherwise trans- listed on the section 10(a)(1)(B) permit. ferred gametes in captivity, if repro- Alaskan Native means a person de- duction is sexual, or from parents that fined in the Alaska Native Claims Set- were in captivity when development of tlement Act (43 U.S.C. 1603(b) (85 Stat. the progeny began, if development is 588)) as a citizen of the United States asexual. who is of one-fourth degree or more Captivity means that living wildlife is Alaska Indian (including Tsimshian In- held in a controlled environment that dians enrolled or not enrolled in the is intensively manipulated by man for Metlaktla Indian Community), Es- the purpose of producing wildlife of the kimo, or Aleut blood, or combination selected species, and that has bound- thereof. The term includes any Native, aries designed to prevent animal, eggs as so defined, either or both of whose or gametes of the selected species from adoptive parents are not Natives. It entering or leaving the controlled envi- also includes, in the absence of proof of ronment. General characteristics of a minimum blood quantum, any citizen of the United States who is regarded as captivity may include but are not lim- an Alaska Native by the Native village ited to artificial housing, waste re or town of which he claims to be a moval, health care, protection from member and whose father or mother is predators, and artificially supplied (or, if deceased, was) regarded as Na- food. tive by any Native village or Native Changed circumstances means changes town. Any citizen enrolled by the Sec- in circumstances affecting a species or retary pursuant to section 5 of the geographic area covered by a conserva- Alaska Native Claims Settlement Act tion plan that can reasonably be an- shall be conclusively presumed to be an ticipated by plan developers and the Alaskan Native for purposes of this Service and that can be planned for part; (e.g.,the listing of new species,or a fire Authentic native articles of handicrafts or other natural catastrophic event in and clothing means items made by an areas prone to such events). Indian, Aleut, or Eskimo which (a) Conservation plan means the plan re- were commonly produced on or before quired by section 10(a)(2)(A) of the ESA December 28, 1973, and (b) are composed that an applicant must submit when wholly or in some significant respect of applying for an incidental take permit. natural materials, and (c) are signifi- Conservation plans also are known as cantly altered from their natural form "habitat conservation plans" or and which are produced, decorated, or "HCPs." fashioned in the exercise of traditional Conserved habitat areas means areas native handicrafts without the use of explicitly designated for habitat res- pantographs, multiple carvers, or simi- toration, acquisition, protection, or lar mass copying devices. Improved other conservation purposes under a "^Nmethods of production utilizing mod- conservation plan. 97 §17.3 50 CFR Ch. 1 (10-1-98 Edition) Convention means the Convention on or provisions are not likely to to result International Trade in Endangered in injury to the wildlife. Species of Wild Fauna and Flora, TIAS Harm in the definition of "take" in 8249. the Act means an act which actually Enhance the propagation or survival, kills or injures wildlife. Such act may when used in reference to wildlife in include significant habitat modifica- captivity, includes but is not limited to tion or degradation where it actually the following activities when it can be kills or injures wildlife by significantly shown that such activities would not impairing essential behavioral pat- be detrimental to the survival of wild terns, including breeding, feeding or or captive populations of the affected sheltering. species: Incidental taking means any taking (a) Provision of health care, manage- otherwise prohibited, if such taking is ment of populations by culling, contra- incidental to, and not the purpose of, ception, euthanasia, grouping or han- the carrying out of an otherwise lawful dling of wildlife to control survivorship activity. and reproduction, and similar normal Industry or trade in the definition of practices of animal husbandry needed commercial activity" in the Act to maintain captive populations that means the actual or intended transfer are self-sustaining and that possess as of wildlife or plants from one person to much genetic vitality as possible; another person in the pursuit of gain or (b) Accumulation and holding of liv- profit; wildlife that is not immediately Native village or town means any com- ingneeded or suitable for propagative or munity, association, tribe, clan or /"'""\ scientific purposes, and the transfer of group;Operat conservation program means such wildlife between persons in order those conservation management activi- to relieve crowding or other problems ties which are expressly agreed upon hindering the propagation or survival and described in a conservation plan or of the captive population at the loca- its Implementing Agreement, if any, tion from which the wildlife would be and which are to be undertaken for the removed;and affected species when implementing an (c) Exhibition of living wildlife in a approved conservation plan, including manner designed to educate the public measures to respond to changed cir- about the ecological role and conserva cumstances. tion needs of the affected species. Population means a group of fish or Endangered means a species of wild- wildlife in the same taxon below the life listed in§17.11 or a species of plant subspecific level, in common spatial ar- listed in §17.12 and designated as en- rangement that interbreed when ma- dangered. ture; Harass in the definition of "take" in Properly implemented conservation plan the Act means an intentional or neg- means any conservation plan, Imple- ligent act or omission which creates menting Agreement and permit whose the likelihood of injury to wildlife by commitments and provisions have been annoying it to such an extent as to sig- or are being fully implemented by the nificantly disrupt normal behavioral permittee. patterns which include, but are not Specimen means any animal or plant, limited to, breeding, feeding, or shel- or any part, product, egg, seed or root tering. This definition, when applied to of any animal or plant; captive wildlife, does not include gen- Subsistence means the use of endan- erally accepted: gered or threatened wildlife for food, (1) Animal husbandry practices that clothing, shelter, heating, transpor- meet or exceed the minimum standards tation and other uses necessary to for facilities and care under the Animal maintain the life of the taker of the Welfare Act, wildlife, or those who depend upon the (2) Breeding procedures, or taker to provide them with such sub- (3) Provisions of veterinary care for sistence, and includes selling any edi- confining, tranquilizing, or anesthetiz- ble portions of such wildlife in native ing, when such practices, procedures, villages and towns in Alaska for native 98 U.S. Fish and Wildlife Sent., Interior §17.4 consumption within native villages and (1) That the purposes of such holding towns; were not contrary to the purposes of Threatened means a species of wildlife the Act; and listed in §17.11 or plant listed in §17.12 (2) That the wildlife was not held in and designated as threatened. the course of a commercial activity. Unforeseen circumstances means changes in circumstances affecting a Example I. On January 25, 1974, a tourist species or geographic area covered by a buys a stuffed hawksbill turtle (an endan- conservation plan that could not rea- gered species listed since June, 1970), in a sonably have been anticipated by plan foreign country. Onb December 28, 1973, the developers and the Service at the time stuffed turtle had been on display for sale. The tourist imports the stuffed turtle into of the conservation plan's negotiation the United States on January 26,1974.This is and development, and that result in a a violation of the Act since the stuffed turtle substantial and adverse change in the was held for commercial purposes on Decem- status of the covered species. ber 28,1973. Wasteful manner means any taking or Example 2. On December 27, 1973 (or ear- method of taking which is likely to re- Tier), a tourist buys a leopard skin coat (the sult in the killing or injury of endan- leopard has been listed as endangered since gered or threatened wildlife beyond March 1972) for his wife in a foreign country. those needed for subsistence purposes, On January 5, he imports it into the United or which results in the waste of a sub- States. He has not committed a violation stantial portion of the wildlife, and in- since on December 28, 1973,he was the owner cludes without limitation the employ- of the coat, for personal purposes, and the ment of a method of taking which is chain of commerce had ended with the sale not likelyto assure the capture or kill- on the 27th. Even if he did not finish paying P for the coat for another year, as long as he ing of the wildlife, or which is not im- had possession of it,and he was not going to mediately followed by a reasonable ef- resell it, but was using it for personal pur- fort to retrieve the wildlife. poses,the Act does not apply to that coat. [40 FR 44415, Sept. 26, 1975, as amended at 42 Example 3. On or before December 28, 1973, FR 28056, June 1, 1977; 44 FR 54006, Sept. 17, a hunter kills a leopard legally in Africa. He 1979; 46 FR 54750, Nov. 4, 1981; 47 FR 31387, has the leopard mounted and imports it into July 20, 1982;50 FR 39687, Sept.30, 1985;63 FR the United States in March 1974. The impor- 8870, Feb. 23, 1998; 63 FR 48639, Sept. 11, 1998] tation is not subject to the Act. The hunter has not engaged in a commercial activity, EFFECTIVE DATE NOTE: At 63 FR 48639, even though he bought the services of a Sept. 11, 1998, §17.3 was amended by revising guide, outfitters, and a taxidermist to help the definition of"Harass", effective Oct. 13, him take, preserve, and import the leopard. 1998. For the convenience of the user,the su- This applies even if the trophy was in the perseded text is set forth as follows: possession of the taxidermist on December §17.3 Definitions. 28, 1973. Example 4. On January 15, 1974, a hunter * * * * * kills a leopard legally in Africa. He has the leopard mounted and imports it into the Harass in the definition of "take" in the United States in June 1974.This importation Act means an intentional or negligent act or is a violation of the Act since the leopard omission which creates the likelihood of in- was not in captivity or a controlled environ- jury to wildlife by annoying it to such an ex- ment on December 28, 1973. tent as to significantly disrupt normal be- havioral patterns which include, but are not (b) Service officers or Customs offi- limited to,breeding,feeding or sheltering. cers may refuse to clear endangered or threatened wildlife for importation * * * • * into or exportation from the United States, pursuant to §14.53 of this sub- §17.4 Pre-Act wildlife. chapter, until the importer or exporter (a) The prohibitions defined in sub- can demonstrate that the exemption parts C and D of this part 17 shall not referred to in this section applies. Ex- apply to any activity involving endan- empt status may be established by any gered or threatened wildlife which was sufficient evidence, including an affida- held in captivity or in a controlled en- vit containing the following: vironment on December 28, 1973: Pro- (1) The affiant's name and address; vided, (2) Identification of the affiant; /1 99 §17.5 50 CFR Ch. 1 (10-1-98 Edition) (3) Identification of the endangered If the taking is primarily for subsist- or threatened wildlife which is the sub- ence purposes, and is not accomplished ject of the affidavit; in a wasteful manner. (4) A statement by the affiant that to (b) Edible portions of endangered or the best of his knowledge and belief, threatened wildlife taken or imported the endangered or threatened wildlife pursuant to paragraph (a) of this sec- which is the subject of the affidavit tion may be sold in native villages or was in captivity or in a controlled en- towns in Alaska for native consump- vironment on December 28, 1973, and tion within native villages and towns was not being held for purposes con- in Alaska. trary to the Act or in the course of a (c) Non-edible by-products of endan- commercial activity; gered or threatened wildlife taken or (5) A statement by the affiant in the imported pursuant to paragraph (a) of following language: this section may be sold in interstate The foregoing is principally based on the commerce when made into authentic attached exhibits which, to the best of my native articles of handicrafts and knowledge and belief, are complete,true and clothing. correct. I understand that this affidavit is being submitted for the purpose of inducing §17.6 State cooperative agreements. the Federal Government to recognize an ex- [Reserved] empt status regarding (insert description of wildlife), under the Endangered Species Act §17.7 Raptor exemption. of 1973 (16 U.S.C. 1531-1543), and regulations (a) The prohibitions found in §§17.21 promulgated thereunder, and that any false and 17.31 do nota 1 to anyraptor a statements may subject me to the criminal apply p [ /"'"`Npenalties of 18 U.S.C. 1001. live migratory bird of the Order Falconiformes or the Order Strigiformes, (6) As an attachment, records or other than a bald eagle (Haliaeetus other available evidence to show: leucocephalus) or a golden eagle (Aquila (i) That the wildlife in question was chrysaetos)] legally held in captivity or being held in captivity or in a con- in a controlled environment on Novem- trolled environment on December 28, ber 10, 1978, or to any of its progeny, 1973; (ii) The purpose for which the wild- v (1ch is: life was being held; and (1) Possessed and banded in compli- (iii) The nature of such holding (to ance with the terms of a valid permit establish that no commercial activity and issued under part 21 of this chapter; was involved). (c) This section applies only to wild- (2) Identified in the earliest applica- life born on or prior to December 28, ble annual report required to be filed pat 21 of this 1973. It does not apply to the progeny of chapter as linea perdmitteers possession any such wildlife born after December on November 10, 1978, or as theen ro 28, 1973. of such a raptor. p g y §17.5 Alaska natives. (b) This section does not apply to any raptor intentionally returned to the (a) The provisions of subpart C of this wild. part relating to the importation or the taking of endangered wildlife, and any [48 FR 31607,July 8, 1983] provision of subpart D of this part re- lating to the importation or the taking §17.8 Permit applications and infor- of threatened wildlife, shall not apply mation collection requirements. to: (a) Address permit applications for (1) Any Indian, Aleut, or Eskimo who activities affecting species listed under is an Alaskan native and who resides in the Endangered Species Act, as amend- Alaska;or ed, as follows: (2) Any non-native permanent resi- (1) Address activities affecting en- dent of an Alaskan native village who dangered and threatened species that is primarily dependent upon the taking are native to the United States to the of wildlife for consumption or for the Regional Director for the Region in creation and sale of authentic native which the activity is to take place. articles of handicrafts and clothing: You can find addresses for the Regional 100 U.S. Fish and Wildlife Serv., Interior §17.11 Directors in 50 CFR 2.2. Send applica- Project (1018-0093/0094), Washington, DC tions for interstate commerce in native 20603. endangered and threatened species to the Regional Director with lead respon- sibility [63 FR 52635,Oct.1,1998] for the species. To determine the appropriate region, call the nearest Subpart B—Lists Regional Office: §17.11 Endangered and threatened Region 1 (Portland,OR):503-231-6241 wildlife. Region 2(Albuquerque,NM):505-248-6920 (a) The list in this section contains Region 3(Twin Cities,MN):612-713-5343 the names of all species of wildlife Region 4(Atlanta,GA):404-679-7313 which have been determined by the Region 5(Hadley,MA):413-253-8628 Region 6(Denver,CO):303-236-8155,ext 263 Services to be Endangered or Threat- Region 7(Anchorage,AK):907-786-3620 ened. It also contains the names of spe- Headquarters(Washington,DC):703-358-2106 cies of wildlife treated as Endangered (2) Submit permit applications for or Threatened because they are suffi- activities affecting native endangered ciently similar in appearance to En- and threatened species in international dangered or Threatened species (see movement or commerce, and all activi- §17.50 et seq.). ties affecting nonnative endangered (b) The columns entitled "Common and threatened species to the Director, Name," "Scientific Name," and "Ver- U.S. Fish and Wildlife Service, (Atten- ortebrate Population Where Endangered of tion Office of Management Authority), wildlife Threatened"ewithin" de meae the of theies Act. 4401 N. Fairfax Drive, Room 700, Ar- d the meaning lington,VA 22203. Thus, differently classified geographic The Office of Management and populations of the same vertebrate sub- (b) g species or species shall be identified by Budget approved the information col- their differing geographic boundaries, lection requirements contained in this even though the other two columns are part 17 under 44 U.S.C. 3507 and as- identical. The term "Entire" means signed OMB Control Numbers 1018-0093 that all populations throughout the and 1018-0094. The Service may not con- present range of a vertebrate species duct or sponsor, and you are not re- are listed. Although common names quired to respond to, a collection of in- are included, they cannot be relied formation unless it displays a cur- upon for identification of any speci- rently valid OMB control number. We men, since they may vary greatly in are collecting this information to pro- local usage. The Services shall use the vide information necessary to evaluate most recently accepted scientific permit applications. We will use this name. In cases in which confusion information to review permit applica- might arise, a synonym(s) will be pro- tions and make decisions, according to vided in parentheses. The Services criteria established in various Federal shall rely to the extent practicable on wildlife conservation statutes and reg- the International Code of Zoological No- ulations, on the issuance, suspension, menclature. revocation, or denial of permits. You (c) In the "Status" column the fol- must respond to obtain or retain a per- lowing symbols are used: "E" for En- mit. We estimate the public reporting dangered, "T" for Threatened, and "E burden for these reporting require- [or TI (S/A)" for similarity of appear- ments to vary from 2 to 2'/2 hours per ance species. response, including time for reviewing (d) The other data in the list are non- instructions, gathering and maintain- regulatory in nature and are provided ing data, and completing and reviewing for the information of the reader. In the forms. Direct comments regarding the annual revision and compilation of the burden estimate or any other as- this title, the following information pect of these reporting requirements to may be amended without public notice: the Service Information Collection the spelling of speciesnames, histori- Control Officer, MS-222 ARLSQ, U.S. cal range, footnotes, references to cer- Fish and Wildlife Service, Washington, tain other applicable portions of this DC 20240, or the Office of Management title, synonyms, and more current """Nand Budget, Paperwork Reduction names. In any of these revised entries, 101 U.S. Fish and Wildlife Serv., Interior §17.21 606-62 FR 4182; January 29, 1997. endangered wildlife in defense of his 609-62 FR 5551; February 6, 1997. own life or the lives of others. 611-62 FR 14351; March 26, 1997. (3) Notwithstanding paragraph (c)(1) 613-62 FR 27978; May 22, 1997. of this section, any employee or agent of the Service, any other Federal land 615-62 FR 31748; June 11, 1997. management agency, the National Ma- 619-62 FR 33037; June 18, 1997. rine Fisheries Service, or a State con- 620-62 FR 33373; June 19, 1997. servation agency, who is designated by 623-62 FR 40973; July 31, 1997. his agency for such purposes, may, 624-62 FR 42702; August 8, 1997. when acting in the course of his official duties, take endangered wildlife with- 625-62 FR 54807; October 22, 1997. out a permit if such action is necessary 627-62 FR 61925; November 20, 1997. to: 635-63 FR 19849; April 22, 1998. (i) Aid a sick, injured or orphaned 640-63 FR 43115; August 12, 1998. specimen; or 641-63 FR 44594;August 20, 1998. (ii) Dispose of a dead specimen; or (i643-63 FR 49034; September 14, 1998. mayii) Salvageusfula deadciespecimen which P be useful for scientific study;or 644-63 FR 49021; September 14, 1998. (iv) Remove specimens which con- EDITORIAL NOTE 1: For FEDERAL REGISTER stitute a demonstrable but nonimme- citations affecting the table in§17.12(h), see diate threat to human safety, provided the listing above. that the taking is done in a humane EDITORIAL NOTE 2: For FEDERAL REGISTER manner; the taking may involve kill- citations affecting§17.12,see the List of CFR ing or injuring only if it has not been /*""N Sections Affected in the Finding Aids sec- reasonably possible to eliminate such tion of this volume. threat by live-capturing and releasing the specimen unharmed, in a remote Subpart C—Endangered Wildlife area. (4) Any taking pursuant to para- §17.21 Prohibitions. graphs (c) (2) and (3) of this section (a) Except as provided in subpart A of must be reported in writing to the U.S. this part, or under permits issued pur- Fish and Wildlife Service, Division of suant to §17.22 or §17.23, it is unlawful Law Enforcement, P.O. Box 19183, for any person subject to the jurisdic- Washington, DC 20036, within 5 days. tion of the United States to commit, to The specimen may only be retained, attempt to commit, to solicit another disposed of, or salvaged in accordance to commit or to cause to be commit- with directions from Service. ted, any of the acts described in para- (5) Notwithstanding paragraph (c)(1) graphs (b) through (f) of this section in of this section, any qualified employee regard to any endangered wildlife. or agent of a State Conservation Agen- (b) Import or export. It is unlawful to cy which is a party to a Cooperative import or to export any endangered Agreement with the Service in accord- wildlife. Any shipment in transit ance with section 6(c) of the Act, who through the United States is an impor- is designated by his agency for such tation and an exportation, whether or purposes, may, when acting in the not it has entered the country for cus- course of his official duties take those toms purposes. endangered species which are covered (c) Take. (1) It is unlawful to take en- by an approved cooperative agreement dangered wildlife within the United for conservation programs in accord- States,within the territorial sea of the ance with the Cooperative Agreement, United States, or upon the high seas. provided that such taking is not rea- The high seas shall be all waters sea- sonably anticipated to result in: ward of the territorial sea of the (i) The death or permanent disabling United States, except waters officially of the specimen; recognized by the United States as the (ii) The removal of the specimen territorial sea of another country, from the State where the taking oc- under international law. curred; (2) Notwithstanding paragraph (c)(1) (iii) The introduction of the specimen of this section, any person may take so taken, or of any progeny derived /-"N 215 §17.21 50 CFR Ch. 1 (10-1-98 Edition) from such a specimen, into an area be- either that the wildlife is of a taxon yond the historical range of the spe- listed in paragraph (g)(6) of this sec- cies;or tion, or that the following conditions (iv) The holding of the specimen in are met: captivity for a period of more than 45 (i) The wildlife is of a species having consecutive days. a natural geographic distribution not (d) Possession and other acts with un- including any part of the United lawfully taken wildlife. (1) It is unlawful States, or the wildlife is of a species to possess, sell, deliver, carry, trans- that the Director has determined to be port, or ship, by any means whatso- eligible in accordance with paragraph ever, any endangered wildlife which (g)(5) of this section; was taken in violation ofara ra h (c) p g p (ii) The purpose of such activity is to of this section. enhance the propagation or survival of Example A person captures a whooping the affected species; crane in Texas and gives it to a second per- (iii) Such activity does not involve son, who puts it in a closed van and drives interstate or foreign commerce, in the thirty miles, to another location in Texas. course of a commercial activity, with The second person then gives the whooping respect to non-living wildlife; crane to a third person, who is apprehended (iv) Each specimen of wildlife to be with the bird in his possession. All three re-imported is uniquely identified by a have violated the law—the first by illegally band, tattoo or other means that was taking the whooping crane; the second by transporting an illegally taken whooping reported in writing to an official of the crane; and the third by possessing an ille- Service at a port of export prior to ex- i".•\ gaily taken whooping crane. port from the United States; and (2) Notwithstanding paragraph (d)(1) (v) Any person subject to the juris- of this section, Federal and State law diction of the United States who en- enforcement officers may possess, de- gages in any of the activities author- liver, carry, transport or ship any en- ized by this paragraph does so in ac- dangered wildlife taken in violation of cordance with paragraphs (g) (2), (3) the Act as necessary in performing and (4) of this section, and with all their official duties. other applicable regulations in this (e) Interstate or foreign commerce. It is Subchapter B. unlawful to deliver, receive, carry (2) Any person subject to the jurisdic- transport, or ship in interstate or for- tion of the United States seeking to en- eign commerce, by any means whatso- gage in any of the activities authorized ever, and in the course of a commercial by this paragraph must first register activity, any endangered wildlife. with the Service (Office of Manage- (f) Sale or offer for sale. (1) It is unlaw- ment Authority, U.S. Fish and Wildlife ful to sell or to offer for sale in inter- Service, 4401 N. Fairfax Drive, Arling- state or foreign commerce any endan- ton, Virginia 22203). Requests for reg- gered wildlife. istration must be submitted on an offi- (2) An advertisement for the sale of cial application form (Form 3-200-41) endangered wildlife which carries a provided by the Service, and must in- warning to the effect that no sale may dude the following information: be consummated until a permit has (i) The types of wildlife sought to be been obtained from the U.S. Fish and covered by the registration, identified Wildlife Service shall not be considered by common and scientific name to the an offer for sale within the meaning of taxonomic level of family, genus or this section. species; (g) Captive-bred wildlife. (1) Notwith- (ii) A description of the applicant's standing paragraphs (b), (c), (e) and (f) experience in maintaining and propa- of this section, any person may take; gating the types of wildlife sought to export or re-import; deliver, receive, be covered by the registration, and carry, transport or ship in interstate or when appropriate, in conducting re- foreign commerce, in the course of a search directly related to maintaining commercial activity; or sell or offer for and propagating such wildlife; sale in interstate or foreign commerce (iii) Photograph(s) or other evidence any endangered wildlife that is bred in clearly depicting the facilities where e*"\ captivity in the United States provided such wildlife will be maintained; and 216 U.S. Fish and Wildlife Serv., Interior §17.21 (iv) a copy of the applicant's license the inaccessibility of their habitat to or registration, if any, under the ani- humans or as a result of the effective- mal welfare regulations of the U.S. De- ness of law enforcement. partment of Agriculture (9 CFR part 2). (ii) The Director will follow the pro- (3) Upon receiving a complete appli- cedures set forth in the Act and in the cation, the Director will decide wheth- regulations thereunder with respect to er or not the registration will be ap- petitions and notification of the public proved. In making this decision, the and governors of affected States when Director will consider, in addition to determining the eligibility of species the general criteria in §13.21(b) of this for purposes of this paragraph. subchapter, whether the expertise, fa- (iii) In accordance with the criteria cilities or other resources available to in paragraph (g)(5)(i) of this section, the applicant appear adequate to en- the Director has determined the follow- hance the propagation or survival of ing species to be eligible for the provi- the affected wildlife. Public education sions of this paragraph: activities may not be the sole basis to justify issuance of a registration or to Laysan duck(Anas laysanensis). otherwise establish eligibility for the exception granted in paragraph (g)(1) of (6) Any person dsStatestate seekingo the jurisdic- exception en- this - section. Each person so registered tion of the United to must maintain accurate written gage in any of the activities authorized records of activities conducted under by paragraph (g)(1) of this section may the registration, and allow reasonable do so without first registering with the access to Service agents for inspection Service with respect to the bar-tailed purposes as set forth in §§13.46 and Pheasant (Syrmaticus humiae), Elliot's r'• 13.47. Each person registered must sub- pheasant (S. ellioti), Mikado pheasant mit to the Director an individual writ- (S. mikado), brown eared pheasant ten annual report of activities, includ- (Crossoptilon mantchuricum), white ing all births, deaths and transfers of eared pheasant (C. crossoptilon), cheer any type. pheasant (Catreus wallichh), Edward's (4) Any person subject to the jurisdic- tion of the United States seeking to ex- pheasant (L. swinhoii), Chinese monal port or conduct foreign commerce in (Lophophorus Ihuysii), and Palawan pea- captive-bred endangered wildlife that cock pheasant(Polyplectron emphanum); will not remain under the care of that parakeets of the species Neophema Pulchella and N. splendida; the Laysan person must first obtain approval by providing written evidence to satisfy duck (Anas laysanensis); the white- the Director that the proposed recipi- winged wood duck (Cairina scutulata); ent of the wildlife has expertise, facili- and the inter-subspecific crossed or ties or other resources adequate to en- "generic" tiger (Panthera tigris) (i e., hance the propagation or survival of specimens not identified or identifiable such wildlife and that the proposed re- as members of the Bengal, Sumatran, cipient will use such wildlife for pur- Siberian or Indochinese subspecies poses of enhancing the propagation or (Panthera tigris tigris, P.t. sumatrae, P.t. survival of the affected species. altaica and P.t. corbetti, respectively) (5)(i) The Director will use the fol- provided: lowing criteria to determine if wildlife (i) The purpose of such activity is to of any species having a natural geo- enhance the propagation or survival of graphic distribution that includes any the affected exempted species; part of the United States is eligible for (ii) Such activity does not involve the provisions of this paragraph: interstate or foreign commerce, in the (A) Whether there is a low demand course of a commercial activity, with for taking of the species from wild pop- respect to non-living wildlife; ulations, either because of the success (iii) Each specimen to be re-imported of captive breeding or because of other is uniquely identified by a band, tattoo reasons, and or other means that was reported in (B) Whether the wild populations of writing to an official of the Service at the species are effectively protected a port of export prior to export of the from unauthorized taking as a result of specimen from the United States; 217 §17.21 50 CFR Ch. 1 (10-1-98 Edition) (iv) No specimens of the taxa in this (iv) Each specimen of wildlife to be im- paragraph (g)(6) of this section that ported is uniquely identified by a band, tat- were taken from the wild may be im- too or other means that was reported in ported for breeding purposes absent a writing to an official of the Service at a port definitive showing that the need for Statesofexport,andprior to export from the United new bloodlines can only be met by wild (v) Any person subject to the jurisdiction specimens, that suitable foreign-bred, of the United States who engages in any of captive individuals are unavailable, the activities authorized by this paragraph and that wild populations can sustain does so in accordance with paragraphs(g) (2), limited taking, and an import permit is (3)and(4)of this section. issued under§17.22; (2) Any person subject to the jurisdiction (v) Any permanent exports of such of the United States seeking to engage in any of the activities authorized by this para- specimens meet the requirements of graph must first register with the Service paragraph (g)(4) of this section; and (Federal Wildlife Permit Office, U.S. Fish (vi) Each person claiming the benefit and Wildlife Service, Washington, DC 20240). I of the exception in paragraph (g)(1) of Requests for registration must be submitted I this section must maintain accurate on an official application form (Form 3-200) written records of activities, including provided by the Service, and must include births, deaths and transfers of speci- the following information: (i) The types of wildlife sought to be cov- mens, and make those records acces- ered by the registration, identified by com- sible to Service agents for inspection mon and scientific name to the taxonomic at reasonable hours as set forth in level of family,genus or species; §§13.46 and 13.47. (ii) A description of the applicant's experi- '---, [40 FR 44415, Sept. 26, 1975, as amended at 40 ence in maintaining and propagating the P types of wildlife sought to be covered by the FR 53400, Nov. 18, 1975; 41 FR 19226, May 11, registration, or in conducting research di- 1976; 44 FR 31580, May 31, 1979; 44 FR 54007, rectly related to maintaining and propagat- Sept. 17, 1979;58 FR 68325,Dec.27, 1993;63 FR ing such wildlife; 48640,Sept. 11, 1998] (iii) A description, if appropriate, of the EFFECTIVE DATE NOTE: At 63 FR 48640, means by which the applicant intends to Sept. 11,1998,§17.21 was amended by revising educate the public about the ecological role paragraph (g), effective Oct. 13, 1998. For the and conservation needs of the affected spe- convenience of the user the superseded text cies; is set forth as follows: (iv) Photograph(s) or other evidence clear- ly depicting the facilities where such wildlife §17.21 Prohibitions. will be maintained;and (v)A copy of the applicant's license or reg- * * * * * istration, if any, under the animal welfare regulations of the U.S. Department of Agri- (g) Captive-bred wildlife. (1) Notwithstand- culture(9 CFR part 2). ing paragraphs(b), (c), (e) and(f)of this sec- (3) Upon receiving a complete application, tion,any person may take;import or export; the Director will decide whether or not the deliver, receive, carry, transport or ship in registration will be approved. In making his interstate or foreign commerce, in the decision, the Director will consider, in addi- course of a commercial activity; or sell or tion to the general criteria in§13.2(b)of this offer for sale in interstate or foreign corn- subchapter, whether the expertise, facilities merce any endangered wildlife that is bred is or other resources available to the applicant captivity in the United States, provided the appear adequate to enhance the propagation principal purpose of these activities is to fa- or survival of the affected wildlife. Each per- cilitate captive breeding, and provided the son so registered must maintain accurate following conditions are met: written records of activities conducted under (i) The wildlife is a species having a natu- the registration and must submit to the Di- ral geographic distribution not including any rector a written annual report of such activi- part of the United States,or the wildlife is a ties. species that the Director has determined to (4) Any person subject to the jurisdiction be eligible in accordance with paragraph of the United States seeking to export or (g)(5)of this section; conduct foreign commerce in captive-bred (ii) The purpose of such activity is to en- endangered wildlife which will not remain hance the propagation or survival of the af- under the care of that person must first ob- j fected species; Min approval by providing written evidence (iii) Such activity does not involve inter- to satisfy the Director that the proposed re- state or foreign commerce, in the course of a cipient of the wildlife has expertise, facili- commercial activity,with respect to non-liv- ties or other resources adequate to enhance /..., ing wildlife; the propagation or survival of such wildlife 218 U.S. Fish and Wildlife Serv., Interior §17.22 and that the proposed recipient will use such Notice of any such waiver shall be pub- wildlife for purposes of enhancing the propa- lished in the FEDERAL REGISTER within gation or survival of the affected species. 10 days following issuance of the per- (5)(1) The Director shall use the following mit. criteria to determine if wildlife of any spe- cies having a natural geographic distribution per- that includes any part of the United States mits for scientific purposes or for the en- is eligible for the provisions of this para- hancement of propagation or survival. A graph: person wishing to get a permit for an (A)Whether there is a low demand for tak- activity prohibited by §17.21 submits ing of the species from wild populations, ei- an application for activities under this ther because of the success of captive breed- paragraph. The Service provides Form ing or because of other reasons,and 3-200 for the application to which all of (B) Whether the wild populations of the the followingmust be attained: species are effectively protected from unau- thorized taking as a result of the inacces- (i) The common and scientific names sibility of their habitat to man or as a result of the species sought to the covered by of the effectiveness of law enforcement. the permit, as well as the number, age, (ii) The Director shall follow the proce- and sex of such species, and the activ- dures set forth in section 4(b) and section 4(1)(2)(A) of the Act and in the regulations ity sought to be authorized (such as promulgated thereunder with respect to peti- taking, exporting, selling in interstate tions and notification of the public and gov- commerce); ernors of affected States when determining (ii) A statement as to whether, at the the eligibility of species for purposes of this time of application, the wildlife sought paragraph. to be covered by the permit (A) is still (iii) In accordance with the criteria inin the wild, (B) has already been re- paragraph (g)(5)(i) of this section, the Direc- moved from the wild, or(C) was born in tor has determined the following species to be eligible for the provisions of this para- captivity; graph: (iii) A resume of the applicant's at- Laysan teal(Anas laysanensis). tempts to obtain the wildlife sought to be covered by the permit in a manner §17.22 Permits for scientific purposes, which would not cause the death or re- enhancement of propagation or sur- moval from the wild of such wildlife; vival,or for incidental taking. (iv) If the wildlife sought to be cov- Upon receipt of a complete applica- ered by the permit has already been re- tion, the Director may issue a permit moved from the wild, the country and authorizing any activity otherwise pro place where such removal occurred; if hibited by §17.21, in accordance with the wildlife sought to be covered by the the issuance criteria of this section,for permit was born in captivity, the coun- scientific purposes, for enhancing the try and place where such wildlife was propagation or survival, or for the inci- born; dental taking of endangered wildlife. (v) A complete description and ad- Such permits may authorize a single dress of the institution or other facil- transaction, a series of transactions, or ity where the wildlife sought to be cov- a number of activities over a specific ered by the permit will be used, dis- period of time. (See §17.32 for permits played, or maintained; for threatened species.) The Director (vi) If the applicant seeks to have shall publish notice in the FEDERAL live wildlife covered by the permit, a REGISTER of each application for a per- complete description, including photo- mit that is made under this section. graphs or diagrams, of the facilities to Each notice shall invite the submission house and/or care for the wildlife and a from interested parties, within 30 days resume of the experience of those per- after the date of the notice, of written son who will be caring for the wildlife; data, views, or arguments with respect (vii) A full statement of the reasons to the application. The 30-day period why the applicant is justified in ob- may be waived by the Director in an taming a permit including the details emergency situation where the life or of the activities sought to be author- health of an endangered animal is ized by the permit; threatened and no reasonable alter- (viii) If the application is for the pur- native is available to the applicant. pose of enhancement of propagation, a �\ 219 §17.22 50 CFR Ch. 1 (10-1-98 Edition) statement of the applicant's willing- (b)(1) Application requirements for per- ness to participate in a cooperative mits for incidental taking.A person wish- breeding program and to maintain or ing to get a permit for an activity pro- contribute data to a studbook; hibited by§17.21(c) submits an applica- (2) Issuance criteria. Upon receiving tion for activities under this para- an application completed in accordance graph. The Service provides Form 3-200 with paragraph (a)(1) of this section, for the application to which all of the the Director will decide whether or not following must be attached: a permit should be issued. In making (i) A complete description of the ac- this decision, the Director shall con- tivity sought to be authorized; sider, in addition to the general cri- (ii) The common and scientific names teria in§13.21(b) of this subchapter,the of the species sought to be covered by following factors: the permit, as well as the number, age, (i) Whether the purpose for which the and sex of such species, if known; permit is required is adequate to jus- (iii) A conservation plan that speci- tify removing from the wild or other- fies: wise changing the status of the wildlife (A) The impact that will likely result sought to be covered by the permit; from such taking; (ii) The probable direct and indirect (B) What steps the applicant will effect which issuing the permit would take to monitor, minimize, and miti- have on the wild populations of the gate such impacts, the funding that wildlife sought to be covered by the will be available to implement such permit; steps, and the procedures to be used to �.� (iii) Whether the permit, if issued, deal with unforeseen circumstances; would in any way, directly or indi- (C) What alternative actions to such rectly, conflict with any known pro- taking the applicant considered and gram intended to enhance the survival the reasons why such alternatives are probabilities of the population from not proposed to be utilized; and which the wildlife sought to be covered (D) Such other measures that the Di- by the permit was or would be re- rector may require as being necessary moved; or appropriate for purposes of the plan; (iv) Whether the purpose for which (2) Issuance criteria. Upon receiving the permit is required would be likely an application completed in accordance to reduce the threat of extinction fac- with paragraph (b)(1) of this section, ing the species of wildlife sought to be the Director will decide whether or not covered by the permit; a permit should be issued. The Director (v)The opinions or views of scientists shall consider the general criteria in or other persons or organizations hav- §13.21(b) of this subchapter and shall ing expertise concerning the wildlife or issue the permit if he finds that: (i) The other matters germane to the applica- taking will be incidental; (ii) the appli- tion;and cant will, to the maximum extent prac- (vi) Whether the expertise, facilities, ticable, minimize and mitigate the im- or other resources available to the ap- pacts of such taking; (iii) the applicant plicant appear adequate to successfully will ensure that adequate funding for accomplish the objectives stated in the the conservation plan and procedures application. to deal with unforeseen circumstances (3) Permit conditions. In addition to will be provided; (iv) the taking will the general conditions set forth in part not appreciably reduce the likelihood 13 of this subchapter, every permit of the survival and recovery of the spe- issued under this paragraph shall be cies in the wild; (v) the measures, if subject to the special condition that any, required under paragraph the escape of living wildlife covered by (b)(1)(iii)(D) of this section will be met; the permit shall be immediately re- and (vi) he has received such other as- ported to the Service office designated surances as he may require that the in the permit. plan will be implemented. In making (4) Duration of permits. The duration his decision, the Director shall also of permits issued under this paragraph consider the anticipated duration and shall be designated on the face of the geographic scope of the applicant's permit. planned activities, including the 220 U.S. Fish and Wildlife Serv., Interior §17.22 amount of listed species habitat that is gram, the permittee will implement involved and the degree to which listed the measures specified in the plan. species and their habitats are affected. (ii) Changed circumstances not provided (3) Permit conditions. In addition to for in the plan. If additional conserva- the general conditions set forth in part tion and mitigation measures are 13 of this subchapter, every permit deemed necessary to respond to issued under this paragraph shall con- changed circumstances and such meas- tain such terms and conditions as the ures were not provided for in the plan's Director deems necessary or appro- operating conservation program, the priate to carry out the purposes of the Director will not require any conserva- permit and the conservation plan in- tion and mitigation measures in addi- cluding, but not limited to, monitoring tion to those provided for in the plan and reporting requirements deemed without the consent of the permittee, necessary for determining whether provided the plan is being properly im- such terms and conditions are being plemented. complied with. The Director shall rely (iii) Unforeseen circumstances. (A) In upon existing reporting requirements negotiating unforeseen circumstances, to the maximum extent practicable. the Director will not require the corn- (4) Duration of permits. The duration mitment of additional land, water, or of permits issued under this paragraph financial compensation or additional shall be sufficient to provide adequate restrictions on the use of land, water, assurances to the permittee to commit or other natural resources beyond the funding necessary for the activities au- level otherwise agreed upon for the spe- thorized by the permit, including con- cies covered by the conservation plan /".,*\ servation activities and land use re- without the consent of the permittee. strictions. In determining the duration (B) If additional conservation and of a permit, the Director shall consider mitigation measures are deemed nec- the duration of the planned activities, essary to respond to unforeseen cir- as well as the possible positive and neg- cumstances, the Director may require ative effects associated with permits of additional measures of the permittee the proposed duration on listed species, where the conservation plan is being including the extent to which the con- properly implemented, but only if such servation plan will enhance the habitat measures are limited to modifications of listed species and increase the long- within conserved habitat areas, if any, term survivability of such species. or to the conservation plan's operating (5) Assurances provided to permittee in conservation program for the affected case of changed or unforeseen cir- species, and maintain the original cumstances. The assurances in this terms of the conservation plan to the paragraph (b)(5) apply only to inciden- maximum extent possible. Additional tal take permits issued in accordance conservation and mitigation measures with paragraph (b)(2) of this section will not involve the commitment of ad- where the conservation plan is being ditional land, water or financial corn- properly implemented, and apply only pensation or additional restrictions on with respect to species adequately coy- the use of land, water, or other natural ered by the conservation plan. These resources otherwise available for devel- assurances cannot be provided to Fed- opment or use under the original terms eral agencies. This rule does not apply of the conservation plan without the to incidental take permits issued prior consent of the permittee. to March 25, 1998. The assurances pro- (C) The Director will have the burden vided in incidental take permits issued of demonstrating that unforeseen cir- prior to March 25, 1998 remain in effect, cumstances exist, using the best sci- and those permits will not be revised as entific and commercial data available. a result of this rulemaking. These findings must be clearly docu- (i) Changed circumstances provided for mented and based upon reliable tech- in the plan. If additional conservation nical information regarding the status and mitigation measures are deemed and habitat requirements of the af- necessary to respond to changed cir- fected species. The Director will con- cumstances and were provided for in sider, but not be limited to, the follow- the plan's operating conservation pro- ing factors: 221 §17.23 50 CFR Ch. [ (10-1-98 Edition) (1) Size of the current range of the af- would: (i) Harm the specimen or popu- fected species; lation involved; or (ii) unduly hinder (2) Percentage of range adversely af- the actions authorized under the per- fected by the conservation plan; mit. (.3) Percentage of range conserved by (3) The Service will notify any party the conservation plan; filing an objection and request for no- (4) Ecological significance of that tice under paragraph (c)(1) of this sec- portion of the range affected by the tion of the final action taken on the conservation plan; application, in writing. If the Service (.5) Level of knowledge about the af- has reduced or dispensed with the no- fected species and the degree of speci- tice period referred to in paragraph ficity of the species' conservation pro- (c)(2) of this section, it will include its gram under the conservation plan; and reasons therefore in such written no- (6) Whether failure to adopt addi- tice. tional conservation measures would ap- [50 FR 39687, Sept. 30, 1985, as amended at 63 preciably reduce the likelihood of sur- FR 8871, Feb. 23, 1998; 63 FR 52635, Oct. 1, vival and recovery of the affected spe- 19981 cies in the wild. (6) Nothing in this rule will be con- §17.23 Economic hardship permits. strued to limit or constrain the Direc- Upon receipt of a complete applica- tor, any Federal, State, local, or Tribal tion, the Director may issue a permit government agency, or a private en- authorizing any activity otherwise pro- tity, from taking additional actions at hibited by §17.21, in accordance with i-� its own expense to protect or conserve the issuance criteria of this section in a species included in a conservation order to prevent undue economic hard- plan. ship. The Director shall publish notice (c) Objection to permit issuance. (1) In in the FEDERAL REGISTER of each appli- regard to any notice of a permit appli- cation for a permit that is made under cation published in the FEDERAL REG- this section. Each notice shall invite ISTER, any interested party that ob- the submission from interested parties, jects to the issuance of a permit, in within 30 days after the date of the no- whole or in part, may, during the com- tice, of written data, views, or argu- ment period specified in the notice, re- ments with respect to the application. quest notification of the final action to The 30-day period may be waived by be taken on the application. A separate the Director in an emergency situation written request shall be made for each where the life or health of an endan- permit application. Such a request gered animal is threatened and no rea- shall specify the Service's permit ap- sonable alternative is available to the plication number and state the reasons applicant. Notice of any such waiver why that party believes the applicant shall be published in the FEDERAL REG- does not meet the issuance criteria ISTER within 10 days following issuance contained in §§13.21 and 17.22 of this of the permit. subchapter or other reasons why the (a) Application requirements. Applica- permit should not be issued. tions for permits under this section (2) If the Service decides to issue a must be submitted to the Director by permit contrary to objections received the person allegedly suffering undue pursuant to paragraph (c)(1) of this sec- economic hardship because his desired tion, then the Service shall, at least activity is prohibited by §17.21. Each ten days prior to issuance of the per- application must be submitted on an mit, make reasonable efforts to con- official application form (Form 3-200) tact by telephone or other expedient provided by the Service, and must in- means, any party who has made a re- clude, as an attachment, all of the in- quest pursuant to paragraph (c)(1) of formation required in §17.22 plus the this section and inform that party of following additional information: the issuance of the permit. However, (1) The possible legal, economic or the Service may reduce the time period subsistence alternatives to the activity or dispense with such notice if it deter- sought to be authorized by the permit; mines that time is of the essence and (2) A full statement, accompanied by that delay in issuance of the permit copies of all relevant contracts and 222 U.S. Fish and Wildlife Serv., Interior §17.23 correspondence, showing the appli- (i) Deals specifically with the wildlife cant's involvement with the wildlife sought to be covered by the permit; sought to be covered by the permit (as and well as his involvement with similar (ii) Became binding prior to the date wildlife), including, where applicable, when the notice of a review of the sta- that portion of applicant's income de- tus of the species or the notice of pro- rived from the taking of such wildlife, posed rulemaking proposing to list or the subsistence use of such wildlife, such wildlife as endangered was pub- during the calendar year immediately lished in the FEDERAL REGISTER, preceding either the notice in the FED- whichever is earlier. ERAL REGISTER of review of the status (5) The severity of economic hardship of the species or of the proposal to list which the contract or other binding such wildlife as endangered, whichever legal obligation referred to in para- is earliest; graph (b)(4) of this section would cause (3) Where applicable, proof of a con- if the permit were denied; tract or other binding legal obligation (6) Where applicable, the portion of which: the applicant's income which would be (i) Deals specifically with the wildlife lost if the permit were denied, and the sought to be covered by the permit; relationship of that portion to the bal- (ii) Became binding prior to the date ance of his income; when the notice of a review of the sta- (7) Where applicable, the nature and tus of the species or the notice of pro- extent of subsistence taking generally posed rulemaking proposing to list by the applicant; and such wildlife as endangered was pub- (8) The likelihood that applicant can \ lished in the FEDERAL REGISTER, reasonably carry out his desired activ- whichever is earlier; and ity within one year from the date a no- (iii) Will cause monetary loss of a tice is published in the FEDERAL REG- given dollar amount if the permit ISTER to review status of such wildlife, sought under this section is not grant- or to list such wildlife as endangered, ed. whichever is earlier. (b) Issuance criteria. Upon receiving (c) Permit conditions. In addition to an application completed in accordance the general conditions set forth in part with paragraph (a) of this section, the 13 of this subchapter, every permit Director will decide whether or not a issued under this section shall be sub- permit should be issued under any of ject to the following special conditions: the three categories of economic hard- (1) In addition to any reporting re- ship, as defined in section 10(b)(2) of quirements contained in the permit the Act. In making his decisions, the itself, the permittee shall also submit Director shall consider, in addition to to the Director a written report of his the general criteria in §13.21(b) of this activities pursuant to the permit. Such subchapter, the following factors: report must be postmarked or actually (1) Whether the purpose for which the delivered no later than 10 days after permit is being requested is adequate completion of the activity. to justify removing from the wild or (2) The death or escape of all living otherwise changing the status of the wildlife covered by the permit shall be wildlife sought to be covered by the immediately reported to the Service's permit; office designated in the permit. (2) The probable direct and indirect (d) Duration of permits issued under effect which issuing the permit would this section shall be designated on the have on the wild populations of the face of the permit. No permit issued wildlife sought to be covered by the under this section, however, shall be permit; valid for more than one year from the (3) The economic, legal, subsistence, date a notice is published in the FED- or other alternatives or relief available ERAL REGISTER to review status of such to the applicant; wildlife, or to list such wildlife as en- (4) The amount of evidence that the dangered,whichever is earlier. applicant was in fact party to a con- [40 FR 44415, Sept. 26, 1975, as amended at 40 tract or other binding legal obligation FR 53400, Nov. 18, 1975; 40 FR 58307, Dec. 16, which; 1975;50 FR 39688,Sept.30, 19851 223 §17.31 50 CFR Ch. 1 (10-1-98 Edition) Subpart D—Threatened Wildlife bition, or educational purposes, or special purposes consistent with the purposes of §17.31 Prohibitions. the Act. A person wishing to get a per- (a) Except as provided in subpart A of mit for an activity prohibited by§17.31 this part, or in a permit issued under submits an application for activities this subpart, all of the provisions in under this paragraph. The Service pro- this 17.21 shall apply to threatened wild- vides Form 3-200 for the application to life, except§17.21(c)(5). which as much of the following infor- (b) In addition to any other provi- mation relating to the purpose of the sions of this part 17, any employee or permit must be attached: agent of the Service, of the National (i) The Common and scientific names Marine Fisheries Service, or of a State of the species sought to be covered by conservation agency which is operating the permit, as well as the number, age, a conservation program pursuant to and sex of such species, and the activ- the terms of a Cooperative Agreement ity sought to be authorized (such as with the Service in accordance with taking, exporting, selling in interstate section 6(c) of the Act, who is des- commerce); ignated by his agency for such pur- (ii) A statement as to whether, at the poses, may, when acting in the course time of application, the wildlife sought of his official duties, take those threat- to be covered by the permit (A) is still ened species of wildlife which are coy in the wild, (B) has already been re- ered by an approved cooperative agree- moved from the wild, or (C) was born in ment to carry out conservation pro- captivity; (iii) A resume of the applicant's at- grams. tempts to obtain the wildlife sought to (c) Whenever a special rule in §§17.40 be covered by the permit in a manner to 17.48 applies to a threatened species, none of the provisions of paragraphs (a) which would not cause the death or re- ared (b) of this section will apply. The moval from the wild of such wildlife; PP y' (iv) If the wildlife sought to be cov- special rule will contain all the appli- cable prohibitions and exceptions. ered by the permit has already been re moved from the wild, the country and 143 FR 18181, Apr. 28, 1978, as amended at 44 place where such removal occurred; if FR 31580,May 31, 1979] the wildlife sought to be covered by §17.32 Permits—general. permit was born in captivity, the coun- try and place where such wildlife was Upon receipt of a complete applica- born; tion the Director may issue a permit (v) A complete description and ad- for any activity otherwise prohibited dress of the institution or other facil- with regard to threatened wildlife. ity where the wildlife sought to be cov- Such permit shall be governed by the ered by the permit will be used, dis- provisions of this section unless a spe- played, or maintained; cial rule applicable to the wildlife, ap- (vi) If the applicant seeks to have pearing in §§17.40 to 17.48, of this part live wildlife covered by the permit, a provides otherwise. Permits issued complete description, including photo- under this section must be for one of graphs or diagrams, of the facilities to the following purposes: Scientific pur- house and/or care for the wildlife and a poses, or the enhancement of propaga- resume of the experience of those per- tion or survival, or economic hardship, sons who will be caring for the wildlife; or zoological exhibition, or educational (vii) A full statement of the reasons purposes, or incidental taking, or spe- why the applicant is justified in ob- cial purposes consistent with the pur- taining a permit including the details poses of the Act. Such permits may au- of the activities sought to be author- thorize a single transaction, a series of ized by the permit; transactions, or a number of activities (viii) If the application is for the pur- over a specific period of time. pose of enhancement of propagation, a (a)(1) Application requirements for per- statement of the applicant's willing- mits for scientific purposes, or the en- ness to participate in a cooperative hancement of propagation or survival, or breeding program and to maintain or economic hardship, or zoological exhi- contribute data to a studbook; 224 U.S. Fish and Wildlife Serv., Interior §17.50 this section, all prohibitions of 50 CFR §17.47 [Reserved] 17.31 and exemptions of 50 CFR 17.32 ecial rules—common shall apply to the bull trout Columbia § sponges 17.48 S and other forms. [Reserved] River and Klamath River population segments within the contiguous United States. Subpart E—Similarity of (2) Exceptions. No person shall take Appearance this species, except in accordance with applicable State and Native American SOURCE: 42 FR 32377, June 24, 1977, unless Tribal fish and wildlife conservation otherwise noted. laws and regulations, as constituted in §17.50 General. all respects relevant to protection of bull trout in effect on June 10, 1998. (a) Whenever a species which is not (3) Any violation of applicable State Endangered or Threatened closely re- and Native American Tribal fish and sembles an Endangered or Threatened wildlife conservation laws or regula- species, such species may be treated as tions with respect to the taking of this direct Endangered or Threatened inth species is also a violation of the Endan- director makes such determinationfthe t gered Species Act. accordance with section 4(e) of Act p and the criteria of paragraph (b) of this (4) No person shall possess, sell, de- section. After the Director has made liver, carry, transport, ship, import, or such determination in accordance with export, any means whatsoever, any the notification procedures specified in such species taken in violation of this the Act, such species shall appear in "."`\ section or in violation of applicable the list in §17.11 (Wildlife) or §17.12 State and Native American Tribal fish (Plants) with the notation "(S/A)" and game laws and regulations. (similarity of appearance) in the "Sta- (5) It is unlawful for any person to at- tus" column, following either a letter tempt to commit, solicit another to "E" or a letter "T" to indicate wheth- commit, or cause to be committed, any er the species is being treated as En- offense defined in paragraphs (v) (2) dangered or Threatened. through (4) of this section. (b) In determining whether to treat a species as Endangered or Threatened [40 FR 44415,Sept.26, 1975] due to similarity of appearance,the Di- EDITORIAL NOTE:For FEDERAL REGISTER ci- rector shall consider the criteria in tations to §17.44, see the List of CFR Sec- section 4(e) of the Act, as indicated tions Affected in the Finding Aids section of below: this volume. (1) The degree of difficulty enforce- ment personnel would have in distin- §17.45 Special rules—snails and clams. guishing the species, at the point in [Reserved] question, from an Endangered or Threatened species (including those §17.46 Special rules—crustaceans. cases where the criteria for recognition (a) Madison Cave isopod (Antrolana of a species are based on geographical lira). (1) All provisions of§17.31 (a) and boundaries); (b) apply to this species except that it (2) The additional threat posed to the may be taken for scientific purposes Endangered or Threatened species by without Federal permits issued pursu- the loss of control occasioned because ant to these regulations: Provided, that of the similarity of appearance;and all other Federal, State, or local laws, (3) The probability that so designat- regulations, ordinances or other re- ing a similar species will substantially strictions or limitations have been facilitate enforcement and further the complied with. purposes and policy of the Act. (b) [Reserved] Example I.The ABC sparrow is Endangered wildlife. The ABD sparrow is a subspecies [47 FR 43701,Oct.4,19821 that is so similar to the ABC sparrow that s^. 245 §222.22 50 CFR Ch. 11 (10-1-98 Edition) Act of 1973, as evidenced by its inclu- (ii) Application for a General Inci- sion on the list of endangered fish or dental Take Permit under the Endan- wildlife (see 50 CFR chapter I, part 17) gered Species Act of 1973. or which the Secretary of the Interior (2) The name, address and telephone determined to be endangered under the number of the applicant. If the appli- Endangered Species Conservation Act cant is a partnership, corporate entity of 1969 and which are now under the ju- or is representing a group or organiza- risdictional responsibilities of the Sec- tion,the applicable details. retary of Commerce, without a valid (3) The species or stocks, by common permit issued pursuant to this part. and scientific name, and a description (Pub.L.94-359) of the status, distribution, seasonal distribution, habitat needs, feeding [41 FR 36028,Aug.26,1976] habits and other biological require- ments 222.22 Permits for the incidental tak- of the affected species or stocks. of endangered species. (4) A detailed description of the pro- ingposed activity, including the antici- (a) Scope. (1) The Assistant Adminis- pated dates, duration and specific loca- trator may issue permits to take en- tion. If the request is for a general inci- dangered marine species incidentally dental take permit, an estimate of the to an otherwise lawful activity under total level of activity expected to be section 10(a)(1)(B) of the Endangered conducted. Species Act of 1973. The regulations in (5) A conservation plan, based on the this section apply only to those endan- best scientific and commercial data gered species under the jurisdiction of available,which specifies the Secretary of Commerce identified (i) The anticipated impact (i.e., in§222.23(a). amount, extent and type of anticipated (2) If the applicant represents an in- taking) of the proposed activity on the dividual or a single entity, such as a species or stocks; corporation, the Assistant Adminis- (ii) The anticipated impact of the trator will issue an individual inciden- proposed activity on the habitat of the tal take permit. If the applicant rep- species or stocks and the likelihood of resents a group or organization whose restoration of the affected habitat; members conduct the same or a similar (iii) The steps (specialized equip- activity in the same geographical area ment, methods of conducting activi- with similar impacts on endangered ties, or other means) that will be taken marine species, the Assistant Adminis- to monitor, minimize and mitigate trator will issue a general incidental such impacts, and the funding avail- take permit. To be covered by a gen- able to implement such measures; and eral incidental take permit, each indi- (iv) The alternative actions to such vidual conducting the activity must taking that were considered and the have a certificate of inclusion issued reasons why those alternatives are not under paragraph (1) of this section. being used. (b) Permit application procedures. Ap- (v) A list of all sources of data used plications should be sent to the Assist- in preparation of the plan, including ant Administrator for Fisheries, Na- reference reports, environmental as- tional Marine Fisheries Service, 1335 sessments and impact statements, and East West Highway, Silver Spring, MD personal communications with recog- 20910.The sufficiency of the application nized experts on the species or activity will be determined by the Assistant who may have access to data not pub- Administrator in accordance with the lished in current literature. requirements of this section. At least (c) Issuance criteria. (1) In determin- 120 days should be allowed for process- ing whether to issue a permit, the As- ing. Each application must be signed sistant Administrator will consider the and dated and include the following: following: (1) The type of application, either: (i) The status of the affected species (i) Application for an Individual Inci- or stocks; dental Take Permit under the Endan- (ii) The potential severity of direct, f-1 gered Species Act of 1973,or indirect and cumulative impacts on the 88 National Marine Fisheries Service/NOAA, Commerce §222.22 species or stocks and habitat as a re- authorized by the permit, including suit of the proposed activity; conservation activities. In determining (iii) The availability of effective the duration of a permit, the Assistant monitoring techniques; Administrator will consider the dura- (iv) The use of the best available tion of the proposed activities, as well technology for minimizing or mitigat- as the possible positive and negative ing impacts; and effects associated with issuing a permit (v) The views of the public, scientists of the proposed duration on listed spe- and other interested parties knowl- cies, including the extent to which the edgeable of the species or stocks or conservation plan is likely to enhance other matters related to the applica- the habitat of the endangered species tion. or increase the long-term survivability (2) To issue the permit, the Assistant of the species. Administrator must find that: (0 Certificates of inclusion. (1) Any in- (i) The taking will be incidental; dividual who wishes to conduct an ac- (ii) The applicant will, to the maxi- tivity covered by a general incidental mum extent practicable, monitor, min- take permit must apply to the Assist- imize and mitigate the impacts of such ant Administrator for a certificate of taking; inclusion. Each application must be (iii) The taking will not appreciably signed and dated and include the fol- reduce the likelihood of the survival lowing: and recovery of the species in the wild; (i) The general incidental take per- (iv) The applicant has amended the mit under which the applicant wants conservation plan to include any meas- coverage. /'\ ures (not originally proposed by the ap- (ii) The name, address and telephone plicant) that the Assistant Adminis- number of the applicant. If the appli- trator determines are necessary or ap- cant is a partnership or a corporate en- propriate;and tity, the applicable details. (v) There are adequate assurances (iii) A description of the activity the that the conservation plan will be applicant seeks to have covered under funded and implemented, including any the general incidental take permit in- measures required by the Assistant Ad- cluding the anticipated dates, dura- ministrator. tion,and specific location; and (d) Permit conditions. In addition to (iv) A signed certification that the the general conditions set forth in part applicant has read and understands the 220 of this chapter, every permit issued general incidental take permit and the under this section will contain such conservation plan, will comply with terms and conditions as the Assistant their terms and conditions, and will Administrator deems necessary and ap- fund and implement applicable meas- propriate, including, but not limited to ures of the conservation plan. the following: (2) To issue a certificate of inclusion, (1) Reporting requirements or rights the Assistant Administrator must find of inspection for determining whether that: the terms and conditions are being (i) The applicant will be engaged in complied with; the activity covered by the general per- (2) The species and number of ani- mit and mals covered; (ii) The applicant has made adequate (3) The authorized method of taking; assurances that the applicable meas- (4) The procedures to be used to han- ures of the conservation plan will be dle or dispose of any animals taken; funded and implemented. and (g) Assurances provided to permittee in (5) The payment of a fee to reimburse case of changed or unforeseen cir- the National Marine Fisheries Service cumstances. The assurances in this the cost of processing the application. paragraph (g) apply only to incidental (e) Duration of permits. The duration take permits issued in accordance with of permits issued under this section paragraph (c) of this section where the will be such as to provide adequate as- conservation plan is being properly im- surances to the permit holder to corn- plemented, and apply only with respect mit funding necessary for the activities to species adequately covered by the 89 §222.23 50 CFR Ch. [[ (10-1-98 Edition) conservation plan. These assurances resources otherwise available for devel- cannot be provided to Federal agencies. opment or use under the original terms This rule does not apply to incidental of the conservation plan without the take permits issued prior to March 25, consent of the permittee. 1998. The assurances provided in inci- (iii) NMFS will have the burden of dental take permits issued prior to demonstrating that unforeseen cir- March 25, 1998 remain in effect, and cumstances exist, using the best sci- those permits will not be revised as a entific and commercial data available. result of this rulemaking. These findings must be clearly docu- (1) Changed circumstances provided for mented and based upon reliable tech- in the plan. If additional conservation nical information regarding the status and mitigation measures are deemed and habitat requirements of the af- necessary to respond to changed cir- fected species. NMFS will consider, but cumstances and were provided for in not be limited to, the following factors: the plan's operating conservation pro- (A) Size of the current range of the gram, the permittee will implement affected species; the measures specified in the plan. (B) Percentage of range adversely af- (2) Changed circumstances not provided fected by the conservation plan; for in the plan. If additional conserva- (C) Percentage of range conserved by tion and mitigation measures are the conservation plan; deemed necessary to respond to changed circumstances and such meas- (D) Ecological significance of that Portion of the range affected by the ures were not provided for in the plan's operating conservation program, conservation plan; NMFS will not require any conserva- (E) Level of knowledge about the af- tion and mitigation measures in addi- fected species and the degree of speci- tion to those provided for in the plan ficity of the species' conservation pro- without the consent of the permittee, gram under the conservation plan; and provided the plan is being properly im- (F) Whether failure to adopt addi- plemented. tional conservation measures would ap- (3) Unforeseen circumstances. (1) In ne- preciably reduce the likelihood of sur- gotiating unforeseen circumstances, vival and recovery of the affected spe- NMFS will not require the commit- ment of additional land, water, or fi- (h) Nothing in this rule will be con- nancial compensation or additional re- strued to limit or constrain the Assist- strictions on the use of land, water, or ant Administrator, any Federal, State, other natural resources beyond the local, or tribal government agency, or level otherwise agreed upon for the spe- a private entity, from taking addi- cies covered by the conservation plan tional actions at its own expense to without the consent of the permittee. protect or conserve a species included (ii) If additional conservation and in a conservation plan. mitigation measures are deemed nec- [55 FR 20606, May 18, 1990, as amended at 63 essary to respond to unforeseen cir- FR 8872,Feb.23, 1998] cumstances, NMFS may require addi- tional measures of the permittee where §222.23 Permits for scientific purposes the conservation plan is being properly or to enhance the propagation or implemented, but only if such meas- survival of the affected endangered ures are limited to modifications with- species. in conserved habitat areas, if any, or to (a) The Director, National Marine the conservation plan's operating con- Fisheries Service, may issue permits servation program for the affected spe- for scientific purposes or.to enhance cies, and maintain the original terms the propagation or survival of the af- of the conservation plan to the maxi- fected endangered species which au- mum extent possible. Additional con- thorize, under such terms and condi- servation and mitigation measures will tions as he may prescribe, taking, im- not involve the commitment of addi- portation, or certain other acts with tional land, water or financial corn- respect to endangered species other- pensation or additional restrictions on wise prohibited by section 9 of the the use of land, water, or other natural Endangered Species Act of 1973. The /''"'N 90 National Marine Fisheries Service/NOAA, Commerce §222.23 species listed as endangered under ei- sea turtle (Lepidochelys olivacea) breed- ther the Endangered Species Conserva- ing colony population on the Pacific tion Act of 1969 or the Endangered Spe- coast of Mexico. Of these, the National cies Act of 1973 and currently under the Marine Fisheries Service has sole agen- jurisdiction of the Secretary of Corn- cy jurisdiction for sea turtles while the merce are: Shortnose sturgeon turtles are in the water and the U.S. (Acipenser brevirostrum); Totoaba Fish and Wildlife Service has jurisdic- (Cynoscian macdonaldi), Snake River tion for sea turtles while the turtles sockeye salmon (Oncorhynchusnerka), are on land. Within the jurisdiction of Umpqua River cutthroat trout a State, more restrictive State laws or (Oncorhynchus clarki clarki); Southern regulations in regard to endangered California steelhead (Oncorhynchus species shall prevail in regard to tak- mykiss), which includes all naturally ing. Proof of compliance with applica- spawned populations of steelhead (and ble State laws will be required before a their progeny) in streams from the permit will be issued. Santa Maria River, San Luis Obispo County, California (inclusive) to (b) Applicationrmapplicationprocedures. Tobtain Malibu Creek, Los Angeles County, such a permit, an rmust be California (inclusive); Upper Columbia made to the Director in accordance with this subpart, except for marine River steelhead (OncorhynchusWells my ), mammal permits which shall be issued which includes the Wells Hatchery in accordance with the provisions of stock and all naturally spawned popu part 216, subpart D of this chapter, and lations of steelhead (and their progeny) sea turtle permits which shall be issued in streams in the Columbia River Basin in accordance with part 220, subpart E P"\ upstream from the Yakima River, of this chapter. The sufficiency of the Washington, to the United States-Can- ada Border; Sacramento River winter- application shall be determined by the run chinook salmon (Oncorhynchus Director in accordance with the re- tshawytscha); Western North Pacific quirements of this part and, in that (Korean) gray whale (Eschrichtius connection, he may waive any require- robustus), Blue whale (Balaenoptera ment for information, or require any musculus), Humpback whale (Megaptera elaboration or further information novaeangliae), Bowhead whale deemed necessary. The following infor- (Balaenamysticetus), Right whales mation will be used as the basis for de- (Eubalaena spp.), Fin or finback whale termining whether an application is (Balaenoptera physalus), Sei whale complete and whether a permit for sci- (Balaenoptera borealis), Sperm whale entific purposes or to enhance the (Physeter catodon); Cochito (Phocoena propagation or survival of the affected Sinus), Chinese river dolphin (Lipotes endangered species should be issued by vexillifer); Indus River dolphin the Director. An original and four cop- (Platanista minor); Caribean monk seal ies of the completed application shall (Monachus tropicalis) Hawaiian monk be submitted to the Director, National seal (Monachus schauinslandi); Medi- Marine Fisheries Service, National terranean monk seal (Monachus Oceanic and Atmospheric Administra- monachus); Saimaa seal (Phoca hispida tion (NOAA), U.S. Department of Corn- saimensis); Steller sea lion (Eumetopias merce, Washington, DC 20235. Assist- jubatus), western population, which ance may be obtained by writing the consists of Steller sea lions from breed- Director or calling the Marine Marr- ing colonies located west of 144° W. mal and Endangered Species Division long.; Leatherback sea turtle in Washington, DC (202-343-9445 and ef- (Dermochelys coriacea), Pacific fective December 2, 1974, it will become hawksbill sea turtle (Eretmochelys 202-634-7529). At least 45 days should be imbricata bissa), Atlantic hawksbill sea allowed for processing. An application turtle (Eretmochelys imbricata for a permit shall provide the following imbricata), Atlantic ridley sea turtle information (when the information re- (Lepidochelys kempil). Green sea turtle quested is not applicable put "N.A.") (Chelonia mydas) breeding colony popu- and such other information that the lations in Florida and on the Pacific Director may require: coast of Mexico, and the olive ridley (1) Title: As applicable, either: """\ 91 §222.23 50 CFR Ch. I1 (10-1-98 Edition) (i) Application for Permit for Sci- scientific name; the subspecies (if ap- entific Purposes under the Endangered plicable); population group, and range; Species Act of 1973; or (ii) A physical description of each (ii) Application for Permit to En- animal, including the age, size, and hance the Propagation or Survival of sex; the Endangered Species Under the En- (iii) A list of the probable dates of dangered Species Act of 1973. capture or other taking, importation, (2) The date of the application. exportation, and other acts which re- (3) The identity of the applicant in- quire a permit, for each animal, and cluding complete name, address, and the location of capture or other taking, telephone number. If the applicant is a importation, exportation, and other partnership or a corporate entity set acts which require a permit, as specifi- forth the details. If the endangered spe Cally as possible; cies is to be utilized by a person other (iv) A description of the status of the than the Applicant, set forth the name stock of each species related insofar as of that person and such other informa- possible to the location or area of tak- tion as would be required if such person were an Applicant. ing; (4) A description of the purpose of the (v) A description of the manner of proposed acts, including: taking for each animal, including the (i) A detailed justification of the gear to be used; need for the endangered species, in- (vi) The name and qualifications of cluding a discussion of possible alter- the persons or entity which will cap- natives, whether or not under the con- ture or otherwise take the animals; trol of the applicant; and (vii) If the capture or other taking is (ii) A detailed description of how the to be done by a contractor, a statement species will be used. as to whether a qualified member of (5) A detailed description of the proj- your staff (include name(s) and quali- ect, or program, in which the endan- fications) will supervise or observe the gered species is to be used, including: capture or other taking. Accompany (i) The period of time over which the such statement with a copy of the pro- project or program will be conducted; posed contract or a letter from the con- (ii) A list of the names and addresses tractor indicating agreement to cap- of the sponsors or cooperating institu- ture or otherwise taken the animals, tions and the scientists involved; should a permit be granted; (iii) A copy of the formal research (7) A description of the manner of proposal or contract if one has been transportation of any live animal prepared; taken, imported, exported, or shipped (iv) A statement of whether the pro- in interstate commerce, including: posed project or program has broader (i) Mode of transportation; significance than the individual re- (ii) Name of transportation company; searcher's goals (i.e., does the proposed (ii) Name of transportation company; project or program respond directly or (iii) Length of time in transit for the indirectly to recommendation of any transfer of the animal(s) from the cap national or international scientific ture site to the holding facility; body charged with research or manage- (iv) Length of time in transit for any ment of the endangered species, and, if future move or transfer of the ani- so, how?); and mal(s) that is planned; (v) A description of the arrange- (v) The qualifications of the common ments, if any,for the disposition of any carrier or agent used for transpor- dead specimen or its skeleton or other tation of the animals; remains, for the continued benefit to (vi) A description of the pen, tank, science, in a museum or other institu- container, cage, cradle, or other de- tional collection. vices used, both to hold the animal at (6) A description of the endangered the capture site and during transpor- species which is the subject of the ap- tation; plication, including the following: (vii) Special care before and during (i) A list of each species and the num- transportation, such as salves, anti- "-.• ber of each, including the common and biotics, moisture; and 92 n National Marine Fisheries Service/NOAA, Commerce §222.23 (viii) A statement as to whether the purposes or to enhance the propagation animals will be accompanied by a vet- or survival of the affected species, and/ erinarian or other similarly qualified or for all such species caused to be cap- person, and the qualifications of such tured, transported, maintained, or uti- person. lized for scientific purposes or to en- (8) Describe the contemplated care hance the propagation or survival of and maintenance of any live animals the affected species,by the Applicant; sought, including a complete descrip- (ii) The numbers of mortalities tion of the facilities where any such among such animals by species, by animals will be maintained including: date, location of capture, i.e., from (i) The dimensions of the pools or which population, and location of such other holding facilities and the num- mortalities; ber, sex, and age of animals by species (iii) The cause(s) of any such mortali- to be held in each; ties; and (ii) The water supply, amount, and (iv) The steps which have been taken quality; by Applicant to avoid or decrease any (iii) The diet, amount and type, for such mortalities. all animals; (12) A certification in the following (iv) Sanitation practices used; language: (v) Qualifications and experience of the staff; and I hereby certify that the foregoing infor- (vi) A written certification from a li- mation is complete, true and correct to the best of my knowledge and belief. I under- censed veterinarian knowledgeable stand that this information is submitted for about the species (or related species) or the purpose of obtaining a permit under the "0"'N group which is the subject of the appli- Endangered Species Act of 1973 (87 Stat. 864, cation, or from a recognized expert on Pub.L.93-205, 16 U.S.C. 1531 et seq.) and reg- the species (or related species) or group ulations promulgated thereunder, and that covered in the application that he has any false statement may subject me to the personally reviewed the amendments criminal penalties of 18 U.S.C. 1001, or to for transporting and maintaining the penalties under the Endangered Species Act animal(s) and that in his opinion they of 1973. are adequate to provide for the well- (13) The applicant and/or an officer being of the animal;and thereof must sign the application. (vii) The availability in the future of (c) Issuance criteria. The Director a consulting expert or veterinarian shall specifically consider, among meeting paragraph (b)(8)(vi) require- other criteria, the following in deter- ments of this section; mining whether to issue a permit for (9) A statement of willingness to par- scientific purposes or to enhance the ticipate in a cooperative breeding pro- propagation or survival of the affected gram and maintain or contribute data endangered species: to a stud book. (1) Whether the permit was applied (10) A statement of how the appli- for in good faith; cant's proposed project or program will (2) Whether the permit if granted and enhance or benefit the wild population. exercised will not operate to the dis- (11) For the 5 years preceding the advantage of the endangered species; date of this application, provide a de- (3) Whether the permit would be con- tailed description of all mortalities in- sistent with the purposes and policy volving species which were under the set forth in section 2 of the Act; control of or utilized by the applicant (4) Whether the permit would further and are either presently listed as en- a bona fide and necessary or desirable dangered species or are taxonomically scientific purpose or enhance the prop- related within the Order to the species agation or survival of the endangered which is the subject of this application, species, taking into account the bene- including: fits anticipated to be derived on behalf (i) A list of all endangered species of the endangered species; and species related to the species which (5) The status of the population of is the subject of this application; cap- the requested species, and the effect of tured, transported, maintained, or uti- the proposed action on the population, lized by the applicant for scientific both direct and indirect; 93 §222.24 50 CFR Ch. 11 (10-1-98 Edition) (6) If a live animal is to be taken, current and chargeable for the cost of transported, or held in captivity—the furnishing the service. applicant's qualifications for the prop- [39 FR 41375,Nov.27, 1974] er care and maintenance of the species and the adequacy of his facilities; EDITORIAL NOTE:For FEDERAL REGISTER ci- (7) Whether alternative non-endan- tations affecting§222.23, see the List of CFR Sections Affected in the Finding Aids sec- gered species or population stocks can tion of this volume. and should be used; (8) Whether the animal was born in §222.24 Procedures for issuance of captivity or was (or will be) taken from permits. the wild; (a) Whenever application for a permit (9) Provision for disposition of the is received by the Director which the species if and when the applicant's Director deems sufficient, he shall, as project or program terminates; soon as practicable, publish a notice (10) How the applicant's needs, pro- thereof in the FEDERAL REGISTER. In- gram, and facilities compare and relate formation received by the Director as a to proposed and ongoing projects and part of the application shall be avail- programs; able to the public as a matter of public (11) Whether the expertise, facilities, record at every stage of the proceeding. or other resources available to the ap- An interested party may within 30 days plicant appear adequate to successfully after the date of publication of such accomplish the objectives stated in the notice, submit to the Director his writ- application; ten data, views, or arguments with re- (12) Opinions or views of scientists or spect to the taking, importation, or other persons or organizations knowl- other action proposed in the applica- edgeable of the species which is the tion and may request a hearing in con- subject of the application or of other nection with the action to be taken matters germane to the application; thereon. and (b) If a request for a hearing is made (d) Permits applied for under this within the 30-day period referred to in section shall contain terms and condi- paragraph (a) of this section, or if the tions as the Director may deem appro- Director determines that a hearing priate, including: would otherwise be advisable, the Di- (1) The number and kind of species rector may, within 60 days after the which are covered; date of publication of the notice re- ferred to in paragraph (a) of this sec- (2) The location and manner of tak- tion, afford to such requesting party or ing; parties an opportunity for a hearing. (3) Port of entry or export; Such hearing shall also be open to par- (4) The methods of transportation, ticipation by any interested members care and maintenance to be used with of the public. Notice of the date, time, live species; and place of such hearing shall be pub- (5) Any requirements for reports or lished in the FEDERAL REGISTER not rights of inspections with respect to less than 15 days in advance of such any activities carried out pursuant to hearing. Any interested person may ap- the permit; pear in person or through representa- (6) The transferability or assignabil- tives at the hearing and may submit ity of the permit; any relevant material, data, views, (7) The sale or other disposition of comments, arguments, or exhibits. A the species, its progeny or the species summary record of the hearing shall be product; kept. (8) A reasonable fee covering the (c) Except as provided in subpart D of costs of issuance of such permit, in- 15 CFR part 904, as soon as practicable cluding reasonable inspections and an but not later than 30 days after the appropriate apportionment of overhead close of the hearing (or if no hearing is and administrative expenses of the De- held, as soon as practicable after the partment of Commerce. All such fees end of the 30 days succeeding publica- will be deposited in the Treasury to the tion of the notice referred to in para- credit of the appropriation which is graph (a) of this section) the Director 94 National Marine Fisheries Service/NOAA, Commerce §222.31 shall issue or deny issuance of the per- date of notification, unless otherwise mit. Notice of the decision of the Di- specified. rector shall be published in the FED- ERAL REGISTER within 10 days after the [39 FR 41375,Nov.27, 1974] date of the issuance or denial and indi- §222.27 Procedures for suspension, tate where copies of the permit, if revocation, or modification of per- issued, may be obtained. mits. (d) If a permit is issued, the Director Any violation of the applicable provi- shall publish notice thereof in the FED- Bions of parts 217 through 222 of this ERAL REGISTER, including his finding chapter, or of the Act, or of a condition that (1) such permit was applied for in p good faith, (2) if granted and exercised of the permit may subject the certifi- will not operate to the disadvantage of Cate holder to the following: such endangered species, and (3) will be (a) The penalties provided in the Act; consistent with the purposes and policy and set forth in section 2 of the Endangered (b) Suspension, revocation, or modi- Species Act of 1973. The requirements fication of the permit, as provided in of this paragraph pertain solely to the subpart D of 15 CFR part 904. permits issued under§222.23. [49 FR 1043,Jan. 6, 1984, as amended at 55 FR (e) The Director may waive the thir- 20607,May 18, 1990] ty-day period in an emergency situa- tion where the health or life of an en- §222.28 Possession of permits. dangered animal is threatened and no reasonable alternative is available to regulations Any permitmusissued under these the applicant, but notice of any such of the io person to whome in the possessionsud ( r �� waiver shall bepublished bythe Direc- of the t fsuch it isissued (or an agent of person) during: tor in the FEDERAL REGISTER within ten days following the issuance of the (1)p The time ofthe exportation,author ed taking, importation, or other act; certificate of exemption or permit. (2) The period of any transit of such [39 FR 41375, Nov. 27, 1974, as amended at 42 person or agent which is incident to FR 28139,June 2, 1977;49 FR 1042,Jan.6, 1984; such taking, importation, exportation, 55 FR 20607,May 18, 1990] or other act; and §222.25 Applications for modification (3) Any other time while any animal of permit by permittee. under such permit is in the possession of such person or agent. Where circumstances have changed teat n applicant r permittee (b) A duplicate copy of the issued per- somit must be physically attached to the desires to have any term or condition tank, container, package, enclosure, or of his application or permit modified, other means of containment, in which he must submit in writing full jus the animal is placed for purposes of tification and supporting information storage,transit,supervision,or care. in conformance with the provisions of this part and the part under which the [39 FR 41375,Nov.27, 1974] permit has been issued or requested. Such applications for modification are Subpart D—Special Prohibitions subject to the same issuance criteria as are original applications, as provided §222.31 Approaching humpback in§§222.22(c) and 222.23(c). whales in Hawaii. [39 FR 41375, Nov. 27, 1974, as amended at 55 Except as provided in subpart C (En- FR 20607,May 18, 1990] dangered Fish or Wildlife Permits) of this part it is unlawful for any person §222.26 Amendment of permits by subject to the jurisdiction of the NMFS. United States to commit, to attempt All permits are issued subject to the to commit, to solicit another to com- condition that the National Marine mit, or to cause to be committed, with- Fisheries Service reserves the right to in 200 nautical miles (370.4 km) of the amend the provisions of a permit for Islands of Hawaii, any of the following just cause at any time during its term. acts with respect to humpback whales Such amendments take effect on the (Megaptera novaeangliae): 95 §222.32 50 CFR Ch. [[ (10-1-98 Edition) (a) Operate any aircraft within 1,000 an exception has the burden of proving ft (300 m) of any humpback whale; or that the exception is applicable: (b) Approach by any means, within (1) Paragraphs (a) and (b) of this sec- 100 yd (90 m) of any humpback whale; tion do not apply if a right whale ap- or proach is authorized by NMFS through (c) Cause a vessel or other object to a permit issued under subpart C (En- approach within 100 yd (90 m) of a dangered Fish or Wildlife Permits) of humpback whale; or this part or through a similar author- (d) Disrupt the normal behavior or ization. prior activity of a whale by any other (2) Paragraphs (a) and (b) of this sec- act or omission. A disruption of normal tion do not apply where compliance behavior may be manifested by, among would create an imminent and serious other actions on the part of the whale, threat to a person,vessel,or aircraft. a rapid change in direction or speed; es- (3) Paragraphs (a) and (b) of this sec- cape tactics such as prolonged diving, tion do not apply when approaching to underwater course changes, underwater investigate a right whale entanglement exhalation, or evasive swimming pat- or injury, or to assist in the terns; interruptions of breeding, nurs- disentanglement or rescue of a right ing, or resting activities, attempts by a whale, provided that permission is re- whale to shield a calf from a vessel or ceived from NMFS or a NMFS designee human observer by tail swishing or by prior to the roach. other protective movement; or the approach. �-. abandonment of a previously fre tion(4) do not apply toParagraphs (a) aan aircraft unless quented area. the aircraft is conducting whale watch [60 FR 3775,Jan. 19, 1995] activities or is being operated for that §222.32 Approaching North Atlantic (5) Paragraph a. right whales. (b) of this section does not apply to the extent that a vessel is (a) Prohibitions. Except as provided restricted in her ability to maneuver, under paragraph (c) of this section, it and because of the restriction, cannot is unlawful for any person subject to comply with paragraph (b) of this sec- the jurisdiction of the United States to tion. commit, attempt to commit, to solicit another to commit, or cause to be corn- [62 FR 6738,Feb.13, 1997] mitted any of the following acts: (1) Approach (including by intercep- §222.33 Special prohibitions relating tion) within 500 yards (460 m) of a right to endangered Steller sea lion pro- whale by vessel, aircraft, or any other lection. means; General. The regulatory provisions (2) Fail to undertake required right set forth in part 227, which govern whale avoidance measures specified threatened Steller sea lions, shall also under paragraph (b) of this section. apply to the western population of (b) Right whale avoidance measures. Steller sea lions, which consists of all Except as provided under paragraph (c) Steller sea lions from breeding colonies of this section, the following avoidance located west of 144°W. long. measures must be taken if within 500 yards (460 m) of a right whale: [62 FR 24355,May 5,1997] (1) If underway, a vessel must steer a Subpart E—Incidental Capture of course away from the right whale and Endangered id Sea Turtles immediately leave the area at a slow safe speed; (2) An aircraft must take a course §222.41 Policy regarding incidental away from the right whale and imme- capture of sea turtles. diately leave the area at a constant Shrimp fishermen in the southeast- airspeed. ern United States and the Gulf of Mex- (c) Exceptions. The following excep- ico who comply with rules for threat- tions apply to this section, but any ened sea turtles specified in §227.72(e) �..� person who claims the applicability of of this subchapter will not be subject 96 National Marine Fisheries Service/NOAA, Commerce §225.3 to civil penalties under the Act for in- (a) Act means the Endangered Species cidental captures of endangered sea Act of 1973, 87 Stat. 884, 16 U.S.C. 1531 turtles by shrimp trawl gear. through 1543,Pub. L. 93-205. [52 FR 24251,June 29, 19871 (b) Agreements mean signed docu- mented statements of the actions to be §222.42 Special prohibitions relating taken by the State(s) and the Director to leatherback sea turtles. in furthering certain purposes of the Special prohibitions relating to Act.They include: leatherback sea turtles are provided at (1) A Cooperative Agreement entered §227.72(e)(2)(iv) of this chapter. into pursuant to section 6(c) of the Act [60 FR 25623,May 12, 19951 and,where appropriate, containing pro- visions found in section 6(d)(2) of the t. PART 225—FEDERAL/STATE CO- P`(2) OPERATION IN THE CONSERVA- (2) A Grastant-In-Aid o Award which inb- OPERATION TION OF ENDANGERED AND cludes a ment of the actions erto a- taken in connection with the conserva- THREATENED SPECIES tion of endangered or threatened spe- cies receiving Federal financial assist- Sec. ance, objectives and costs of such ac- 225.1 Purpose of regulations. tions, and costs to be borne by the Fed- 225.2 Scope of regulations. eral Government and by the State(s). 225.3 Definitions. (c) Application for Federal Assistance 225.4 Cooperation with the States. 225.5 Cooperative agreement. means a description of work to be ac- r1 225.6 Allocation of funds. complished, including objectives and 225.7 Financial assistance. needs, expected results and benefits, 225.8 Availability of funds. approach, cost, location and time re- 225.9 Payments. quired for completion. 225.10 Assurances. (d) Director means the Director of the 225.11 Submission of documents. 225.12 Project evaluation. National Marine Fisheries Service, Na- 225.13 Contracts. tional Oceanic and Atmospheric Ad- 225.14 Inspection. ministration, Department of Com- AUTHORITY: Endangered Species Act of merce, or his authorized designee. 1973, 87 Stat. 884, 16 U.S.C. 1531-1543, Pub. L. (e) Program means a State-developed 93-205. plan for the conservation and manage- Souxc$: 41 FR 24354, June 16, 1976, unless ment of all resident species which are otherwise noted. deemed by the Secretary to be endan- gered or threatened and those which §225.1 Purpose of regulations. are deemed by the State to be endan- The regulations in this part imple- gered or threatened, which includes ment section 6 of the Endangered Spe- goals, priorities, strategies, actions, cies Act of 1973, 87 Stat. 884, 16 U.S.C. and funding necessary to accomplish 1531 through 1543, Pub. L. 93-205 which the objectives on an individual species provides, under certain circumstances, basis. for cooperative agreements with and fi- (f) Project means a substantial under- nancial assistance to the States. taking to conserve the various endan- gered or threatened species. §225.2 Scope of regulations. (g) Project segment means an essential This part applies to endangered and part or a division of a project, usually threatened species under the jurisdic- separated as a period of time, occasion- tion of the Department of Commerce ally as a unit of work. (see 50 CFR 222.23(a)). (h) Resident species means, for pur- poses of these regulations, with respect §225.3 Definitions. to a State, a species which exists in the In addition to the definitions con- wild in that State during any part of tained in the Act, and unless the con- its life. text otherwise requires, in this part (i) Secretary means the Secretary of 225: Commerce or his authorized designee. 97 APPENDIX 12: List of FWS/NMFS Washington, D.C. and Regional Offices r-•\ U.S. FISH & WILDLIFE SERVICE Washington, D.C. Office: Mailing Address: Express Mail Address: U.S. Department of the Interior U.S. Fish and Wildlife Service U.S. Fish and Wildlife Service Division of Endangered Species Division of Endangered Species 4401 N. Fairfax Drive, Room 420 1849 C St.,N.W. - Mail Stop 420ARLSQ Arlington, VA 22203 Washington, D.C. 20240 (703) 358-2106 (202) 208-4646 Region 1: (CA, HI, ID,NV, OR, WA, American Samoa, Territories of the Pacific Islands) Regional Director U.S. Fish and Wildlife Service 911 NE 11th Avenue Portland, OR 97232-4181 Telephone: (503) 231-6118 Fax: (503) 231-2122 Region 2: (AZ,NM, OK, TX) Regional Director U.S. Fish and Wildlife Service 500 Gold Avenue S.W. P.O. Box 1306 Albuquerque,NM 87103-1306 Telephone: (505) 248- 6920 Fax: (505) 248- 6922 Region 3: (IA, IL, IN, MI, MN, MO, OH, WI) Regional Director U.S. Fish and Wildlife Service Bishop Henry Whipple Federal Building 1 Federal Drive Fort Snelling, MN 55111-4056 Telephone: (612) 713-5350 Fax: (612) 713-5292 Region 4: (AL, AR, FL, GA, KY, LA, MS,NC, PR, SC, TN, U.S. VI) Regional Director U.S. Fish and Wildlife Service 1875 Century Blvd. Atlanta, GA 30345 Telephone: (404) 679-4000 Fax: (404) 679-4006 Region 5: (CT, DC, DE, MA, MD, ME,NH,NJ,NY, PA, RI, VA, VT, WV) Regional Director U.S. Fish and Wildlife Service 300 Westgate Center Drive Hadley,MA 01035-9589 Telephone: (413) 253-8200 Fax: (413)253-8308 Region 6: (CO, KS, MT,NE,ND, SD, UT, WY) Regional Director U.S. Fish and Wildlife Service P.O. Box 25486 Denver Federal Center Denver, CO 80225 Lake Plaza North Building 134 Union Blvd., 4th Floor Lakewood, CO 80228 Telephone: (303) 236-7920 Fax: (303) 236-6958 Region 7: (AK) Regional Director U.S. Fish and Wildlife Service 1011 East Tudor Road Anchorage,AK 99503 Telephone: (907) 786-3542 Fax: (907) 786-3350 n NATIONAL MARINE FISHERIES SERVICE Washington,D.C. Office: Headquarters Office National Marine Fisheries Service National Marine Fisheries Service Office of Fisheries Conservation and Endangered Species Division Management Office of Protected Resources 1315 East-West Highway 1315 East-West Highway, PR 3 Silver Spring, MD 20910 Silver Spring, MD 20910 (301) 713-2334 Telephone: (301) 713-1401 Fax: (301) 713-0376 Northeast Region: (CT, DE, DC, IL, IN, ME, MD, MA, MI, MN,NH,NJ,NY, OH, PA, RI, VA, VT, WV, WI) Regional Director Northeast Regional Office National Marine Fisheries Service One Blackburn Drive Gloucester, MA 09130-2298 Telephone: (978) 281-9346 Fax: (978) 281-9394 n Southeast Region: (AL, AR, FL, GA, IA, KS, KY, LA, MS, MO,NE,NM,NC, OK, PR, SC, TN, TX, U.S. VI) Regional Director Southeast Regional Office National Marine Fisheries Service 9721 Executive Center Drive St. Petersburg, FL 33702 Telephone: (727) 570-5312 Fax: (727) 570-5517 Southwest Region: (AZ, CA, GU, HI,NV, American Samoa, Territories of the Pacific Islands) Regional Director Southwest Regional Office National Marine Fisheries Service 501 West Ocean Boulevard, Suite 4200 Long Beach, CA 90802-4213 Telephone: (562) 980-4020 Fax: (562) 980-4027 Northwest Region: (CO, ID, MT,ND, OR, SD, UT, WA, WY) Regional Director Northwest Regional Office National Marine Fisheries Service 7600 Sand Point Way,N.E. BINC 15700 Building 1 Seattle, WA 98115-0070 Telephone: (206) 526-6150 Fax: (206) 526-6426 Alaska Region: (AK) Regional Director Alaska Regional Office National Marine Fisheries Service 709 W. 9th Street, Federal Bldg. 461 Juneau,AK 99802-1668 Telephone: (907) 586-7235 Fax: (907) 586-7012 APPENDIX 15: FWS Federal Fish and Wildlife Permit (Form 3-201) 3-201(10/86) DEPARTMENT OF THE INTERIOR U.S.FISH AND WILDLIFE SERVICE 2.AUTHORITY-STATUTES FEDERAL FISH AND WILDLIFE PERMIT REGULATIONS(ATTACHED) 3. NUMBER 1.PERMITTEE 4.RENEWABLE 5.MAY COPY YES YES NO NO 6.EFFECTIVE 7.EXPIRES 8.NAME AND TITLE OF PRINCIPAL OFFICER(IF#1 is A BUSINESS) 9.TYPE OF PERMIT 10.LOCATION WHERE AUTHORIZED ACTIVITY MAY BE CONDUCTED 11.CONDITIONS AND AUTHORIZATIONS: r� A. GENERAL CONDITIONS SET OUT IN SUBPART D OF 50 CFR§13,AND SPECIFIC CONDITIONS CONTAINED IN FEDERAL REGULATIONS CITED IN BLOCK#2 ABOVE,ARE HEREBY MADE A PART OF THIS PERMIT. ALL ACTIVITIES AUTHORIZED HEREIN MUST BE CARRIED OUT IN ACCORD WITH AND FOR THE PURPOSES DESCRIBED IN THE APPLICATION SUBMITTED. CONTINUED VALIDITY,OR RENEWAL,OF THIS PERMIT IS SUBJECT TO COMPLETE AND TIMELY COMPLIANCE WITH ALL APPLICABLE CONDITIONS,INCLUDING THE FILING OF ALL REQUIRED INFORMATION AND REPORTS. B. THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN,STATE,LOCAL OR OTHER FEDERAL LAW. C. VALID FOR USE BY PERMITTEE NAMED ABOVE,AND HIS DESIGNATED AUTHORIZED AGENTS. ❑ADDITIONAL CONDITIONS AND AUTHORIZATIONS ON REVERSE ALSO APPLY 12. REPORTING REQUIREMENTS ISSUED BY TITLE DATE ORIGINAL APPENDIX 16: Examples of Federal Register Notice of Receipt of a Permit Application and Notice of Availability of a NEPA Document I I Federal Register / Vol. 60, No. 20 / Tuesday, January 31, 1995 / Notices 5945 The applicant requests amendment of Permit No.PRT-798015 231-6243.Please refer to the respective their permit for take (capture andpermit number for each application t""-\Applicant:Mr.Michael Skenfield, release) of the Santa Cruz long-toed Murphys,California when requesting copies of documents. salamander(Ambystoma [The following applicants have applied The applicant requests a permit to macrodactylum croceum) to include for a permit to conduct certain activities Monterey County,California to take(harass by survey,collect and with endangered species.This notice is sacrifice voucher specimens) the determine presence or absence of the conservancy fairy shrimp (Branchinecta provided pursuant to section 10(c) of species for the purpose of enhancing its conservatio),longhorn fairy shrimp the Endangered Species Act of 1973,as survival. (Branchinecta longiantenna),and vernal amended (16 U.S.C. 1531, et seq.).] Permit No.PRT-797315 pool tadpole shrimp (Lepidurus Dated:January 20, 1995. Applicant:Dr.Michael L.Morrison, packardi) in vernal pools throughout Thomas Dwyer, Tucson,Arizona the species'range in northern California Deputy Regional Director,Region 1,Portland, to determine presence or absence of the Oregon. The applicant requests a permit to species for the purpose of enhancing its [FR Doc.95-2278 Filed 1-30-95;8:45 am] take(capture,mark,and release) the salt survival. BILLING CODE 4310-55-P marsh harvest mouse (Reithrodontomys raviventris) and the Fresno kangaroo rat Permit No.PRT-795931 (Dipodomys nitratoides exilis) at the Applicant:Biota Biological Consulting, Availability of an Environmental Lemoore Naval Air Station in Fresno, Sacramento,California Assessment and Finding of No California to conduct population/habitat The applicant requests amendment of Significant Impact,and Receipt of an studies and to determine presence or their permit to include take(harass by Application for an Incidental Take absence of the species for the purpose Permit for La Costa Villages,Carlsbad, of scientific research and for enhancing survey,collect and sacrifice) of the CA g its survival.These studies were conservancy fairy shrimp (Branchinecta previously authorized under the conservatio),longhorn fairy shrimp AGENCY: Fish and Wildlife Service, Regional Director's permit no.PRT- (Branchinecta longiantenna),and Interior Department. 702631. Riverside fairy shrimp (Streptocephalus ACTION:Notice. wootoni) in vernal pools throughout the Permit No.PRT-798017 species' range in California to determine SUMMARY:Fieldstone/La Costa Applicant:Habitat Restoration Group, presence or absence of the species for Associates and the City of Carlsbad, Felton,California the purpose of enhancing its survival. California(applicants) have applied for The applicant requests a permit to Permit No.PRT-798018 an incidental take permit from the Fish take (capture release) the Santa and Wildlife Service (Service) pursuant Cruz(capture long-toed and release) (Ambystoma Applicant:Golden Gate Raptor to section 10(a)(1)(B) of the Endangered P.\ macrodactylum croceum) in Santa Cruz Observatory,San Francisco,California Species Act of 1973 (Act),as amended. The applicant requests a permit to The proposed permit would authorize and Monterey Counties,California to take of the threatened coastal California determine presence or absence of the take(capture,band,and release) the species for the purpose of enhancing its peregrine falcon(Falco peregrinus) in gnatcatcher(Polioptila californica survival. the Golden Gate National Recreation californica) in San Diego County, Area,Marin County,California for the California,for a period of 30 years.The Permit No.PRT-798025 purpose of enhancing its survival. proposed taking is incidental to planned Applicant:California Desert Studies DATES:Written comments on the permit home and road construction on 1,940 Consortium,Fullerton,California applications must be received on or acres of land primarily owned by before March 2, 1995. Fieldstone/La Costa Associates. The applicant requests a permit to This notice advises the public that the take(capture,mark,and release) the ADDRESSES:Written data or comments Service has re-opened the comment Mohave tui chub(Gila bicolor should be submitted to the Chief, period on the permit application and mohavensis) in Lake Tuendae,Desert Division of Consultation and the environmental assessment(EA).The Studies Center,Baker,California to Conservation Planning,Ecological permit application includes a Habitat determine presence or absence of the Services,U.S.Fish and Wildlife Service, Conservation Plan(HCP),two HCP species for the purpose of enhancing its 911 N.E. 11th Avenue,Portland,Oregon addendums,and an Implementing survival. 97232-4181.Please refer to the Agreement(IA).The EA package Permit No.PRT-798003 respective permit number for each includes an EA,EA addendum,and a application when submitting comments. draft Finding of No Significant Impact Applicant:North State Resources,Inc., FOR FURTHER INFORMATION CONTACT: (FONSI)which concludes that issuing Redding,California Documents and other information the incidental take permit is not a major The applicant requests a permit to submitted with these applications are Federal action significantly affecting the take (harass by survey,collect and available for review,subject to the quality of the human environment, sacrifice voucher specimens) the requirements of the Privacy Act and within the meaning of section 102(2)(C) conservancy fairy shrimp (Branchinecta Freedom of Information Act,by any of the National Environmental Policy conservatio),longhorn fairy shrimp party who submits a written request for Act(NEPA) of 1969,as amended. (Branchinecta longiantenna),Riverside a copy of such documents,within 30 This notice is provided pursuant to fairy shrimp (Streptocephalus wootoni), days of the date of publication of this section 10(c)of the Act and NEPA and vernal pool tadpole shrimp notice,to the following office: U.S.Fish regulations (40 CFR 1506.6).The (Lepidurus packarch) in vernal pools and Wildlife Service,Ecological Service will evaluate the application, throughout the species'range in Services,Division of Consultation and associated documents,and comments t"--\ California to determine presence or Conservation Planning,911 N.E. 11th submitted thereon to determine whether absence of the species for the purpose Avenue,Portland,Oregon 97232-4181. the application meets the requirements of enhancing its survival. Telephone: 503-231-2063;FAX: 503- of NEPA regulations and section 10(a) of 5946 Federal Register / Vol. 60, No. 20 / Tuesday, January 31, 1995 / Notices the Act.If it is determined that the applicants will provide$1,000,000 for Preservation of the White House, 1100 requirements are met,a permit will be purchase of an off-site mitigation parcel, Ohio Drive,SW.,Washington,DC issued for the incidental take of the within the City of Carlsbad,to be 20242. coastal California gnatcatcher.The final approved by the Service. Dated:January 18, 1995. NEPA and permit determinations will The applicants have requested the not be completed until after the end of issuance of permits(immediately or James I.McDaniel, the 30-day comment period and will when a species is listed) under section Executive Secretary,Committee for the fully consider all public comments 10(a) of the Act that would authorize Preservation of the White House. received during the comment period. incidental take,in accordance with the [FR Doc.95-2256 Filed 1-30-95;8:45 am] This notice supplements an earlier terms of the HCP,for up to 66 sensitive BILLING CODE 4310-70-M notice published in the Federal Register species listed in the HCP.Of these on October 28, 1994 (59 FR 54207).That species,the coastal California notice announced an initial 30-day gnatcatcher is the only federally-listed National Register of Historic Places; public comment period on the HCP,first species observed on-site.Section 10(a) Notification of Pending Nominations HCP addendum,and draft EA.The draft permits are issued only for federally- EA was not available for public review listed species;however,unlisted species Nominations for the following until two weeks into the initial 30-day that subsequently become listed,and are properties being considered for listing comment period.Subsequently,an adequately conserved by the original in the National Register were received addendum to the draft EA,a second HCP,can be added by permit by the National Park Service before addendum to the HCP,and an IA were amendment. January 21, 1995.Pursuant to§60.13 of completed that include a description of A concern has been raised regarding 36 CFR part 60 written comments a change in mitigation for a portion of the consistency of the HCP with certain concerning the significance of these the proposed project.Consequently,the subarea and subregional plans under the properties under the National Register Service has re-opened the period for statewide Natural Community criteria for evaluation may be forwarded public comment on the NEPA Conservation Planning program(NCCP) to the National Register,National Park documents and the complete (see 59 FR 54208).All interested Service,P.O.Box 37127,Washington, application package,as revised. agencies,organizations,and individuals D.C.20013-7127.Written comments DATES:Written comments on the HCP, are urged to provide comments on the should be submitted by February 15, HCP addendums,IA,EA,EA permit application,NEPA documents, 1995. addendum,and draft FONSI should be and the NCCP consistency issue.All Carol D.Shull, received on or before March 2, 1995. comments received by the closing date Chief of Registration,National Register. ADDRESSES:Comments should be will be considered in finalizing NEPA ALABAMA addressed to Mr.Gail Kobetich,Field compliance and permit issuance or '-...• Supervisor,U.S.Fish and Wildlife denial. Jefferson County Service,2730 Loker Avenue West, The Service will publish a record of Arlington Park,800-840 First St.W.,815- Carlsbad,California 92008.Comments its final action in the Federal Register. 909 Second St.W.and 100-269 Munger may be sent by facsimile to telephone Dated:January 25, 1995. Ave.,Birmingham,95000097 (619) 431-9618.Please refer to permit Thomas J.Dwyer, Lauderdale County No.PRT-795759 when submitting Deputy Regional Director,Region 1,Portland, Seminary—O'Neal Historic District,Roughly, comments. Oregon. Seminary St.between Hermitage Dr.and FOR FURTHER INFORMATION CONTACT:Gail [FR Doc.95-2279 Filed 1-30-95;8:45 am] Irvine Ave.and Irvine between Seminary Kobetich(Field Supervisor) or Ken BILLING CODE 4310-55-P and Wood Ave.,Florence,95000092 Corey(Biologist) at the above address, or telephone(619) 431-9440. DELAWARE Individuals wishing copies of the National Park Service New Castle County documents should immediately contact Merestone, 1610-1620 Yeatman's Mill Rd., Ken Corey.Documents also will be Committee for the Preservation of the White House; Meeting Mill Creek Hundred(Delaware);Yeatman's available for public inspection,by Station Rd.,New Garden Township appointment,during normal business In compliance with the Federal (Pennsylvania),Newark vicinity,95000093 hours at the above address. Advisory Committee Act,notice is IOWA SUPPLEMENTARY INFORMATION:Proposed hereby given of a meeting of the grading and construction activities Committee for the Preservation of the Humboldt County would directly impact 30 of 48 pairs of White House.The meeting will be held Renwick Generating Plant, 103 N.Field St., the threatened coastal California at the Department of Commerce, Renwick,95000099 gnatcatcher(gnatcatcher) and 550 of Washington,DC at 1 p.m.,Friday, Jackson County 1,064 acres of suitable gnatcatcher February 17,1995.It is expected that the Chicago,Milwaukee&St.Paul Narrow Gauge habitat on-site(506 of 944 acres of agenda will include policies,goals and Depot—LaMotte(Advent&Development of coastal sage scrub and 44 of 120 acres long range plans.The meeting will be Railroads in Iowa MPS),Market St., of southern maritime chaparral).In open,but subject to appointment and LaMotte,95000105 addition,254 of 307 acres of grassland security clearance requirements, and 69 of 114 acres of riparian scrub/ including clearance information by Polk County woodland would be directly impacted February 10, 1995. Camp Dodge Pool District,Buildings A22- on-site.Approximately 18 pairs of Inquiries may be made by calling the A24,Camp Dodge,Johnston,95000098 gnatcatchers,438 acres of coastal sage Committee for the Preservation of the LOUISIANA �.� scrub,76 acres of southern maritime White House between 9 a.m.and 4 p.m., chaparral,and 173 acres of associated weekdays at(202) 619-6344.Written Terrebonne Parish habitats will be conserved and managed comments may be sent to the Executive Cook,Herman Albert,House,515 W.Main on-site in perpetuity.In addition,the Secretary,Committee for the St.,Houma,95000107 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Notices 26737 Sec.21; are land uses consistent with the Arlington Square,U.S.Fish and Sec.28; California Desert Conservation Area Wildlife Service,Washington,D.C. t."\ Sec.29,N1/2,NE1/4SW1/4,NE1/4NW1/4SW'/4, Plan and permitted by the 20240. S1/2NW1/4SW1/4,S1/2SWI/4,and SE1/4; Memorandum of Understanding Sec.30,lots 1,4,and 6,N1/zNE1/4, Dated:April 14, 1995. E1/zW1/zSWI/4NE1/4,El/zSWI/4NE1/4, between the Bureau of Land John J.Doggett, W1/4SEI/4NE,NE1/4NW1/4,S1/2NE1/4SW1/4, Management and the California SE1/4SW1/4,Wl/ZNE1/4SE1/4, Department of Parks and Recreation. Acting Assistant Director-Refuges and SE1/4NE1/4SE1/4,NW1/4SE1/4,and Existing rights are not affected by this Wildlife. S1/4SEI/4; action. [FR Doc.95-12224 Filed 5-17-95;8:45 am] Sec.31,lots 1 to 4 inclusive,E1/2,and David M.Mcllnay BILLING CODE 4310-55-M El/zW 1/z' Chief,Branch of Lands Sec.32; Sec.33. [FR Doc.95-12205 Filed 5-17-95;8:45 am] Endangered and Threatened Species T.30 S.,R.38 E., BILLING CODE 4310-40-P Permit Application All of the following land lying north of the northern right-of-way boundary of the AGENCY:Fish and Wildlife,Interior. highway known as the Redrock Randsburg Fish and Wildlife Service ACTION:Notice of document availability; Road: request for comments. Sec.4,lot 2 of NE1/4,and E1/2 lot 2 of Information Collection Submitted to NW1/4. the Office of Management and Budget Availability of an Environmental Sec.6,lot 1 of NE1/4,lot 1 of NW1/4,lot 2 for Review Under the Paperwork Assessment and Receipt of an of NE1/4,lot 2 of NW1/4,lot 1 of SW1/4, Reduction Act Application for a Permit to Allow lot 2 of SW1/4,and SE1/4. Incidental Take of Threatened and The area within the withdrawal contains The proposal for the collection of approximately 16,560 acres. information listed below has been Endangered Species by Murray Pacific submitted to the Office of Management Corporation on its Mineral Tree Farm in Congress has mandated all the public and Budget(OMB)for reinstatement Lewis County,Washington. lands described above be conveyed to approval under the provisions of the SUMMARY:This notice advises the public the State of California,subject to valid Paperwork Reduction Act(44 U.S.C. that Murray Pacific Corporation existing rights,for inclusion in Red Chapter 35 .Copies of the proposed (Applicant)has applied to the U.S.Fish Rock Canyon State Park(California p ) p p p and ) pp Desert Protection Act, 108 Stat. 4471, information collection requirement and Wildlife Service (FWS) for an sec.701.)The purpose of the proposed related forms and explanatory material incidental take permit pursuant to withdrawal is to protect the park values may be obtained by contacting the section 10(a)(1)(B) of the Endangered of this designated area until the lands Service's clearance officer at the phone Species Act of 1973,as amended (Act). can be conveyed to the State of number listed below.Comments and The Applicant has requested the permit P,IN California pursuant to the suggestions on the requirement should as an amendment to their existing aforementioned act. be made directly to the Service permit(PRT-777837) authorizing For a period of 90 days from the date Clearance Officer and the Office of incidental take of the northern spotted of publication of this notice,all persons Management and Budget,Paperwork owl,which was issued on September who wish to submit comments, Reduction Project(1018-0009) 24, 1993,and have amended their suggestions,or objections in connection Washington,D.C. 20503,telephone 202- existing Habitat Conservation Plan with the proposed withdrawal may 395-7340. (HCP).The application has been present their views in writing to the Title:Woodcock Wing Collection assigned permit number PRT-777837. California State Director of the Bureau Envelope The Applicant has also requested to Cf Land Management. OMB Approval Number:1018-0009 enter into a consensual agreement with oA public meeting is required to be Abstract:The Migratory Bird Treaty the U.S.National Marine Fisheries Act authorizes and directs the Secretary (NMFS)held regarding the proposed Service NMFS to address the needs of of the Interior to determine to what anadromous salmonids being withdrawal.Upon determination by the extent migratory game birds may be considered for listingunder the Act,and authorized officer of the location and hunted. For several species of game with the FWS to conserve other fish and date of the meeting,a notice of time and birds,including the woodcock,this place will be published in the Federal determination is based primarily on wildlife species which may be Register and in a local newspaper at associated with habitats on their least 30 days before the scheduled date biological information gathered through Mineral Tree Farm in Lewis County, of the meeting. surveys.Survey cooperators provide Washington(Tree Farm).The requested The application will be processed in data on their harvests and hunting permit would authorize the incidental accordance with the regulations set activities,and from each bird taken, take of all species presently listed under forth in 43 CFR 2300.Records relating they submit one wing for certain the Act,that may occur on the biological determinations. to the application are available for Applicant's Tree Farm.The proposed Service Form Number:3-156A. examination in the BLM Public Room, incidental take would occur as a result Frequency:On occasion. 2800 Cottage Way,Sacramento,CA Description of Respondents: of timber harvest activities in the 95825. Individuals and households. various habitat types that occur now, For a period of 2 years from the date Completion Time:The overall and will occur on the Tree Farm during of publication of this notice in the reporting burden is estimated to average the term of the proposed permit.The Federal Register,the lands will be 4 minutes per response with a response HCP Amendment includes an agreement segregated as specified above unless the rate average of 5 responses per for the issuance of additional permits application is denied or canceled or the respondent. for the incidental take of species not withdrawal is approved prior to that Annual Responses:2,000. presently listed under the Act,but f--"N date. Annual Burden Hours:670. which may become listed during the The temporary uses which will be Service Clearance Officer:Phyllis H. term of the proposed permit,and which permitted during this segregative period Cook, 703-358-1943 Mail Stop-224 may occur in habitats on the Tree Farm. 26738 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Notices The FWS in conjunction with NMFS permit. Reserves would be established National Park Service �� announce the availability of an during a Watershed Analysis process Environmental Assessment(EA)for the which the Applicant would complete by National Capital Memorial proposed issuance of the incidental take 2004.The expected result of Watershed Commission; Public Meeting permit and signing of the agreement. Analysis would place a majority of the Notice is hereby given in accordance The FWS is taking administrative reserves in riparian zones.In addition, with the Federal Advisory Committee responsibility for announcing the the Applicant would be committed to a Act that a meeting of the National availability of the aforementioned variety of special measures intended to Capital Memorial Commission will be documents.This notice is provided mitigate and minimize impacts to the pursuant to section 10(c) of the Act and g p held on Tuesday,June 20, 1995,at 1 National Environmental Policy Act habitat types which occur on the Tree p.m.,at the National Building Museum, regulations(40 CFR 1506.6). Farm,and specific State and Federal Room 312,5th and F Streets,NW. DATES:Written comments on the permit species of concern including the grizzly The Commission was established by bear,gray wolf,bald and golden eagles, Public Law 99-652,the Commemorative application and EA should be received on or before June 19, 1995. goshawk,Larch Mountain salamander, Works Act,for the purpose of preparing ADDRESSES:Comments re ardin the Townsend's big-eared bat,long-legged and recommending to the Secretary of application or EA should be addressed myotis(bat),and others.The Applicant the Interior,Administrator,General also proposes to mitigate for impacts to Services Administration,and Members to Mr.Curt Smitch,Assistant Regional anadromous salmonids through habitat of Congress broad criteria,guidelines, Director,U.S.Fish and Wildlife Service, andpolicies for memorializingpersons 3773 Martin Way East,Building C— conservation measures for these species. t Suite 101,Olympia,Washington 98501. The EA considers the environmental and events Capital on FRegionelands in the National (as defined in Please refer to permit No.PRT-777837 consequences of 5 alternatives, the National Capital Planning Act of when submitting comments.Individuals including the proposed action and no- 1952,as amended),through the media wishing copies of the application or EA action alternatives.The proposed action of monuments,memorials and statues.It for review should immediately contact alternative is the issuance of a permit is to examine each memorial proposal the above office(360-534-9330). under section 10(a)of the Act that for adequacy and appropriateness,make FOR FURTHER INFORMATION CONTACT: would authorize incidental take of all recommendations to the Secretary and Craig Hansen,U.S.Fish and Wildlife listed species,and signing of the Administrator,and to serve as Service,3773 Martin Way East,Building agreement for currently unlisted information focal point for those C-Suite 101,Olympia,WA.,98501; species,that may occur in the habitats persons seeking to erect memorials on (360) 412-5465.Steve Landino, on the Applicant's Tree Farm.The Federal land in the National Capital National Marine Fisheries Service, 3773 proposed action would require the Region. Martin Way East,Building C-Suite 101, Applicant to implement their amended The members of the Commission are Olympia,WA.,98501; (360) 412-5469. Habitat Conservation Plan.Under the as follows: SUPPLEMENTARY INFORMATION: no-action alternative,the Applicant Director,National Park Service Background would continue to implement their Chairman,National Capital Planning existing northern spotted owl HCP,and Commission Under section 9 of the Act and its additional incidental take permits The Architect of the Capitol implementing regulations, "taking"of a would not be issued.The third Chairman,American Battle Monuments threatened or endangered species,is alternative is to maintain approximately Commission prohibited.However,the FWS and Chairman,Commission of Fine Arts NMFS,under limited circumstances, 29 percent of the Tree Farm in reserves Mayor of the District of Columbia may issue permits to take threatened generated according to Watershed Administrator,General Services and endangered wildlife species if such Analysis prescriptions.The fourth Administration taking is incidental to,and not the alternative is to maintain reserves on Secretary of Defense purpose of,otherwise lawful activities. about 17 percent of the Tree Farm,and The purpose of the meeting will be to Regulations governing permits for would allow the Applicant to harvest consider sites for the World War II threatened species are in 50 CFR 17.32 timber on a limited basis in the outer Memorial.The meeting will be open to and in 50 CFR 17.22 for endangered half of riparian reserves.The fifth the public.Any person may file with the species. alternative would place about 5 percent Commission a written statement The Applicant proposes to implement of the Tree Farm in riparian reserves concerning the matters to be discussed. an amendment to their HCP for the with additional protection on steep Persons who wish to file a written northern spotted owl that will allow slopes with wet talus habitat,the statement or testify at the meeting or timber harvest on portions of Applicant would commit to and who want further information approximately 55,000 acres of their Tree complete further Watershed Analysis by concerning the meeting may contact the Farm.The Applicant's proposed timber the year 2004,and the Applicant would Commission at 202-619-7097.Minutes harvest may result in the take,as retain all live conifer and conifer snags of the meeting will be available for defined in the Act and its implementing greater than 40 inches in diameter at public inspection 4 weeks after the regulations,of listed species.The HCP breast height. meeting at the Office of Land Use and permit would be in effect through Coordination,National Capital Region, the year 2094.The application includes Dated:May 12, 1995. 1100 Ohio Drive,SW.,Room 201, an amended HCP and Implementation Thomas Dwyer, Washington,D.C., 20242. Agreement. Deputy Regional Director,Region 1,Fish and Dated:May 11, 1995. The Applicant proposes to mitigate Wildlife Service,Portland,Oregon. ''''''Nfor the incidental take of all listed [FR Doc.95-12204 Filed 5-17-95;8:45 am] Robert Stanton, species by maintaining at least 10 BILLING CODE 4310-55-P Regional Director,National Capital Region. percent of the Tree Farm in non- [FR Doc.95-12260 Filed 5-17-95;8:45 am] harvestable reserves for the term of the BILLING CODE 4310-70-M 30580 Federal Register / Vol. 60, No. 111 / Friday, June 9, 1995 / Notices boundary and subdivisional lines,and trading in walrus ivory,polar pear and Manager's Office,225 Bridger Avenue, the survey of the centerline of the May sea otter skins.The information Las Vegas,Nevada 89155.Copies of the f"""\ to Patterson Road and Lot 2 in section collected is used by the Fish and Final EIS have been sent to all agencies 32,T. 15 N.,R. 22 E.,Boise Meridian, Wildlife Service to improve its decision- and individuals who previously Idaho, Group No.887,was accepted, making ability by substantially received copies of the Draft EIS and to May 24, 1995. expanding the quality and quantity of all others who have already requested This survey was executed to meet harvest and biological data upon which copies. certain administrative needs of the future management decisions can be SUPPLEMENTARY INFORMATION: Bureau of Land Management. based.It provides the Service with the All inquiries concerning the survey of ability to make inferences about the A.Background the above described land must be sent condition and general health of the On April 2, 1990,the U.S.Fish and to the Chief,Branch of Cadastral Survey, populations and to consider the Wildlife Service(Service) issued a final Idaho State Office,Bureau of Land importance and impact to these rule (55 FR 12178)that determined the Management, 3380 Americana Terrace, populations from such processes as desert tortoise to be a threatened species Boise,Idaho,83706. development activities and habitat under the Endangered Species Act of Dated:May 31, 1995. degradation. 1973,as amended (Act).That regulation Duane E.Olsen, Service Form Number(s):R7-50 became effective on the date of its Chief Cadastral Surveyor for Idaho. (Walrus Certificate);R7-51 (Polar Bear publication in the Federal Register. [FR Doc.95-14109 Filed 6-8-95;8:45 am] Certificate);R7-52 (Sea Otter Certificate) Because of its listing as a threatened Frequency:On occasion. BILLING CODE 4310-GG-M Description of Respondents: species,the desert tortoise is protected Individuals and household. by the Act's prohibition against "taking."The Act defines"take"to Completion Time:The reporting Fish and Wildlife Service burden is estimated to average 15 mean:to harass,harm,pursue,hunt, Information Collection Submitted to minutes per respondent;respondents shoot,wound,kill,trap,capture or the Office of Management and Budget will average 1.46 responses per year. collect,or to attempt to engage in such for Review Under the Paperwork Annual Responses:2,925. conduct. "Harm" is further defined by Reduction Act Annual Burden Hours:732. regulation as any act that kills or injures Service Clearance Officer:Phyllis H. wildlife including significant habitat The proposal for the collection of Cook,703-358-1943,Mail Stop-224 modification or degradation where it information listed below has been Arlington Square,U.S.Fish and actually kills or injures wildlife by submitted to the Office of Management Wildlife Service,Washington,D.C. significantly impairing essential and Budget (OMB)for reinstatement 20240. behavioral patterns,including breeding, approval under the provisions of the Dated May 22, 1995. feeding,or sheltering(50 CFR 17.3). /".\ Paperwork Reduction Act(44 U.S.C. The Service,however,may issue P Rowan W.Gould, Chapter 35).Copies of the proposed permits to carry out otherwise lawful Acting Assistant Director—Fisheries. activities involvingtake of endangered information collection requirement and g [FR Doc. related forms and explanatory material 95-14087 Filed 6-8-95;8:45 am] and threatened wildlife under certain may be obtained by contacting the BILLING CODE 4310-55-M circumstances.Regulations governing Service's clearance officer at the phone permits are in 50 CFR 17.22, 17.23,and number listed below.Comments and 17.32.For threatened species,such Endangered and Threatened Species ermits are available for scientific suggestions on the requirement should Permit Application p be made directly to the Service purposes,enhancing the propagation or Clearance Officer and the Office of AGENCY: Fish and Wildlife,Interior. survival of the species,economic Management and Budget,Paperwork ACTION:Notice of availability of the hardship,zoological exhibition or Reduction Project(1018-0066) Final Environmental Impact Statement educational purposes,incidental taking, Washington,D.C. 20503,telephone 202- (EIS) on the Proposed Issuance of an or special purposes consistent with the 395-7340. Incidental Take Permit for Desert purposes of the Act. Title:Marking,Tagging and Reporting Tortoises in Clark County,Nevada. Clark County;the cities of Las Vegas, Regulations for Polar Bear,Sea Otter North Las Vegas,Henderson,Mesquite, and Walrus. SUMMARY:This notice advises the public and Boulder City;and Nevada OMB Approval Number:1018-0066. that the Final Environmental Impact Department of Transportation(NDOT) Abstract:The Marine Mammal Statement(EIS)on the proposed (Applicants)submitted an application to Protection Act of 1972, (Act)as issuance of an incidental take permit for the Service for a permit to incidentally amended,authorized the Secretary of desert tortoises in Clark County,Nevada take desert tortoises(Gopherus the Interior to prescribe marking, is available.The Record of Decision will agassizii),pursuant to section tagging and reporting regulations in 50 be published no sooner than 30 days 10(a)(1)(B)of the Act,in association CFR 18.23(f),for Alaska Natives from this notice. with various proposed public and harvesting polar bear,seat otter,and FOR FURTHER INFORMATION CONTACT: private projects in Clark County, walrus.Under the Act Alaska Natives Dolores Savignano, U.S. Fish and Nevada.The proposed permit would residing in Alaska and dwelling on the Wildlife Service, 1500 North Decatur allow incidental take of desert tortoises coast of the North Pacific or arctic Boulevard,#01,Las Vegas,Nevada for a period of 30 years,resulting from Oceans may harvest these species for 89108 or Carlos Mendoza, U.S. Fish and development on up to 113,900 acres of subsistence or handicraft purposes.The Wildlife Service, 4600 Kietzke Lane, private lands within Clark County, marking and tagging program is Building C, Room 125,Reno,Nevada Nevada.The permit application was intended to gather reports of all kills 89502. received September 28, 1994,and was �� made,and to tag or mark,as Individuals wishing copies of this accompanied by the Clark County appropriate,skins,skulls and tusks of Final EIS should immediately contact Desert Conservation Plan(CCDCP), marine mammals killed to reduce illegal Christine Robinson, Clark County which serves as the Applicant's habitat Federal Register / Vol. 60, No. 111 / Friday, June 9, 1995 / Notices 30581 conservation plan and details their minimize and mitigate the impacts of The No Action alternative would benefit .. proposed measures to minimize, the proposed action on desert tortoises. individual desert tortoises on private monitor,and mitigate the impacts of the The underlying purpose or goal of the lands in the short-term,however,it has proposed take on the desert tortoise. proposed action is to develop a program been determined that viable populations The Applicants propose to expend designed to ensure the continued of desert tortoises will not persist in the $1.35 million per year,and up to$1.65 existence of the species,while resolving urban areas over the long-term.The No million per year for the first 10 years,to potential conflicts that may arise from Action alternative would,therefore,not minimize and mitigate the potential loss otherwise lawful private and public provide the benefits of the long-term of desert tortoise habitat.It is improvement projects. recovery efforts for the desert tortoise anticipated that the majority of these B.Development of the Final EIS identified in the CCDCP.The No Action funds will be used to implement alternative was not identified as the mitigation measures as described in the This Final EIS has been developed by preferred alternative because it would CCDCP.In addition,funds will be the U.S.Fish and Wildlife Service.In diffuse existing regional conservation provided to State and Federal resource the development of this Final EIS,the planning efforts for the desert tortoise managers for implementing desert Service initiated action to assure and possibly concentrate activity on tortoise recovery measures compliance with the purpose and intent individual project needs,not meet the recommended in the Desert Tortoise of the National Environmental Policy purpose and needs of the Applicants, (Mojave Population) Recovery Plan,and Act of 1969,as amended(NEPA). and not provide the long-term benefits for planning and managing lands both Scoping activities were undertaken to the desert tortoise.Additionally,the within and outside of desert wildlife Preparatory to developing a Draft EIS No Action alternative could result in management areas.The desert tortoise is with a variety of Federal,State,and adverse impacts to the social only part of the desert ecosystem,and local entities.A Notice of Intent to environment within Clark County due unless the various species of plants and Prepare a Draft EIS was published to constraints on land-use activities that animals which co-inhabit that system February 4, 1994 (59 FR 5439);a public would impact the desert tortoise. scoping meeting was held February 14, are likewise preserved,the status of the Dated:June 1, 1995. desert tortoise is likely to decline. 1994;and a Notice of Availability of a Thomas D er, Therefore,the needs of otherplant and Draft EIS and Receipt of an Application `°� for an Incidental Take Permit for Desert Deputy Regional Director. wildlife resources will be addressed, Tortoises in Clark County,Nevada was [FR Doc.95-13901 Filed 6-8-95;8:45 am] possibly avoiding the need to list these published February 10, 1995 (60 FR BILLING CODE 4310-55-P species as threatened or endangered 8058). under the Act in the future.The Potential consequences,in terms of Applicants also propose to purchase a adverse impacts and benefits associated Finding of No Significant Impact for conservation easement that preserves, with the implementation of each Incidental Take Permits for the protects,and assures the management alternative selected for detailed Construction of Single-Family and study of the conservation values, analysis,were described in the Draft Residences at the Specific Site and in particular the habitat of the EIS.The Service received 13 letters of Locations Indicated Below in Travis desert tortoise,of more than 85,000 comment on the Draft EIS which County,Texas acres of non-Federal land in Clark focused on the followingsubject County. areas: AGENCY:Fish and Wildlife Service, To minimize the impacts of take,the (1) Survey and removal of desert Interior. tortoises; (2) translocation of tortoises to ACTION:Notice. Applicants propose to provide a free a sanctuary; (3) euthanasia of tortoises; pick-up and collection service for desert (4)measurable criteria for short-term SUMMARY:The U.S. Fish and Wildlife tortoises encountered in harm's way and long-term conservation goals; (5) Service(Service) has prepared an within Clark County.These desert tortoise adoption; (6) effects to other Environmental Assessment for issuance tortoises will be made available for species and resources;and (7)financing of a Section 10(a)(1)(B)permit for the beneficial uses such as translocation implementation of the CCDCP. incidental take of the federally studies and programs,research, Appendix A of the Final EIS contains endangered golden-cheeked warbler education,zoos,museums,or other copies of all comments received and (Dendroica chrysoparia) during the programs approved by the Service and responses to all comments received.The construction and operation of single- Nevada Division of Wildlife.Sick or Final EIS was revised where appropriate family residences in Travis County, injured desert tortoises will be based on public comment and review. Texas. humanely euthanized.NDOT will Issues and potential consequences have incorporate specific measures into its remained identical from the draft to the Proposed Action operations to avoid or minimize impacts final EIS. The proposed action is the issuance of to desert tortoises.Clark County will permits under Section 10(a)(1)(B) of the also implement a public information C.Alternatives Analyzed in the Final Endangered Species Act to authorize the and education program to benefit the EIS incidental take of the golden-cheeked desert tortoise and the desert ecosystem. Two alternatives were considered. warbler. Clark County or the cities would Issuance of the permit with the The Applicant(Steven G.Madere) approve the issuance of land mitigating,minimizing,and monitoring plans to construct a single-family development permits for otherwise measures outlined in the CCDCP is the residence at the specific site indicated lawful public and private project Service's preferred action and is as Lot 22,Block H,Long Canyon Phase proponents during the 30-year period in discussed above.The Draft EIS outlined IIA,aka 9000 Bell Mountain Drive, which the proposed Federal permit alternative measures that were Austin,Travis County,Texas(PRT- "\ would be in effect.Clark County or the considered by the Service prior to 799859). cities would impose,and NDOT would issuance of the permit.The other The Applicant(Larry Michael pay,a fee of$550 per acre of habitat alternative selected for detailed Beasley)plans to construct a single- disturbance to fund the measures to evaluation was a No Action alternative. family residence at the specific site 57722 Federal Register / Vol. 60, No. 222 / Friday, November 17, 1995 / Notices approximate time required to make their portion of a meeting shall inform the EFFECTIVE DATE:November 17, 1995. comments. contact person listed above,either orally FOR FURTHER INFORMATION CONTACT: /..-• Open committee discussion.The or in writing,prior to the meeting.Any Mark Johnston,Department of Housing committee will discuss data relevant to person attending the hearing who does and Urban Development,Room 7256, the new drug application(NDA) 20-569 not in advance of the meeting request an 451 Seventh Street SW.,Washington, ganciclovir intravitreal implant opportunity to speak will be allowed to DC 20410;telephone(202) 708-1226; (Vitrasert®Sterile Intravitreal Implant, make an oral presentation at the TDD number for the hearing-and Chiron Vision Corp.) for treatment of hearing's conclusion,if time permits,at speech-impaired (202) 708-2565, (these cytomegalovirus retinitis.The the chairperson's discretion. telephone numbers are not toll-free),or committee will also discuss data The agenda,the questions to be call the toll-free Title V information line relevant to NDA 20-597 latanoprost addressed by the committee,and a at 1-800-927-7588. (XalatanTM Sterile Ophthalmic Solution, current list of committee members will Pharmacia,Inc.) a topical ophthalmic be available at the meeting location on SUPPLEMENTARY INFORMATION:hIn 88 drug indicated for the reduction of the day of the meeting. accordance with the al CoalitiDecemberon n1for1th elevated intraocular pressure in patients Transcripts of the open portion of the court order in ete ans doanistr the with open-angle glaucoma and ocular meeting may be requested in writing Homeless v. Veterans Administration, hypertension. from the Freedom of Information Office No.88-2503-OG(D.D.C.),HUD FDA public advisory committee (HFI-35),Food and Drug publishes a Notice,on a weekly basis, meetings may have as many as four Administration,rm. 12A 16, 5600 identifying unutilized,underutilized, separable portions: (1) An open public Fishers Lane,Rockville,MD 20857, excess and surplus Federal buildings hearing, (2) an open committee and real property that HUD has P approximately 15 working days after the reviewed for suitabilityfor use to assist discussion, (3) a closed presentation of meeting,at a cost of 10 cents per page. data,and(4) a closed committee The transcript may be viewed at the the homeless.Today's Notice is for the deliberation.Every advisory committee Dockets Management Branch (HFA- purpose of announcing that no meetingshall have an openpublic additional properties have been P 305),Food and Drug Administration, hearing portion.Whether or not it also rm. 1-23, 12420 Parklawn Dr., determined suitable or unsuitable this includes any of the other three portions Rockville,MD 20857,approximately 15 week. will depend upon the specific meeting working days after the meeting,between Dated:November 9, 1995. involved.There are no closed portions the hours of 9 a.m.and 4 p.m.,Monday Jacquie M.Lawing, for the meetings announced in this through Friday.Summary minutes of Deputy Assistant Secretary for Economic notice.The dates and times reserved for the open portion of the meeting may be Development. the open portions of each committee requested in writing from the Freedom [FR Doc.95-2828 Filed 11-16-95;8:45 am] meeting are listed above. of Information Office (address above) BILLING CODE 4210-29-M The open public hearing portion of each meeting shall be at least 1 hour beginning approximately 90 days after /"\ long unless public participation does the meeting. not last that long.It is emphasized, This notice is issued under section DEPARTMENT OF THE INTERIOR however,that the 1 hour time limit for 10(a)(1)and (2) of the Federal Advisory an open public hearing represents a Committee Act(5 U.S.C.app.2),and Fish and Wildlife Service minimum rather than a maximum time FDA's regulations (21 CFR part 14) on advisory committees. Availability of a Draft Environmental for public participation,and an open Impact Statement and Receipt of an public hearing may last for whatever Dated:November 13, 1995. Application for the Proposed Issuance longer period the committee David A.Kessler, of a Permit To Allow Incidental Take of chairperson determines will facilitate Commissioner of Food and Drugs. Threatened and Endangered Species the committee's work. [FR Doc.95-28366 Filed 11-16-95;8:45 am] on Plum Creek Timber Company,L.P., Public hearings are subject to FDA's BILLING CODE 4160-01-F Lands in the 1-90 Corridor,King and guideline(subpart C of 21 CFR part 10) Kittitas Counties,WA concerning the policy and procedures for electronic media coverage of FDA's DEPARTMENT OF HOUSING AND AGENCY:Fish and Wildlife Service, public administrative proceedings, URBAN DEVELOPMENT Interior. including hearings before public ACTION:Notice of document availability; advisory committees under 21 CFR part Office of the Assistant Secretary for request for comments. 14.Under 21 CFR 10.205, Community Planning and representatives of the electronic media Development SUMMARY:This notice advises the public may be permitted,subject to certain that Plum Creek Timber Company,L.P. limitations,to videotape,film,or [Docket No.FR-3778-N-63] (Applicant) has applied to the U.S.Fish otherwise record FDA's public and Wildlife Service and the National administrative proceedings,including Federal Property Suitable as Facilities Marine Fisheries Service (together presentations by participants. To Assist the Homeless Services)for an incidental take permit Meetings of advisory committees shall AGENCY:Office of the Assistant pursuant to section 10(a)(1)(B) of the be conducted,insofar as is practical,in Secretary for Community Planning and Endangered Species Act of 1973,as accordance with the agenda published Development,HUD. amended (Act).The Applicant has also in this Federal Register notice.Changes ACTION:Notice. requested unlisted-species and safe- in the agenda will be announced at the harbor provisions in an Implementation beginning of the open portion of a SUMMARY:This Notice identifies Agreement(Agreement)to cover meeting. unutilized,underutilized,excess,and vertebrate species which may be found r•\ Any interested person who wishes to surplus Federal property reviewed by in the planning area.The application be assured of the right to make an oral HUD for suitability for possible use to has been assigned permit number PRT- presentation at the open public hearing assist the homeless. 808398.The requested permit would Federal Register / Vol. 60, No. 222 / Friday, November 17, 1995 / Notices 57723 authorize incidental take of currently FOR FURTHER INFORMATION CONTACT: planning area.At the time of '' listed threatened or endangered species William Vogel,U.S.Fish and Wildlife termination for the HCP phase of the that may occur within the planning area Service,or Steve Landino,National permit,the safe-harbor provision would in King and Kittitas Counties, Marine Fisheries Service,at the office provide the Applicant relief from Washington,as a result of the listed above. regulatory restrictions on timber- Applicant's timber management SUPPLEMENTARY INFORMATION: management activities in habitats activities.The unlisted-species provided for listed species which are provision provides for the issuance of Background greater than the habitat amounts further permits for the incidental take of Under section 9 of the Act and its required under the HCP. species not presently listed under the implementing regulations, "taking"of The HCP is designed to complement Act,but which might become listed threatened and endangered species is the Federal Northwest Forest Plan,and during the term of the proposed permit, prohibited.However,the Service,under includes various forms of mitigation and which might occur within the limited circumstances,may issue which are integral parts of the HCP. planning area. permits to take threatened or Mitigation includes a schedule of The Services also announce the endangered wildlife species if such habitat amounts to be provided for each availability of a Draft Environmentaltaking is incidental to,and not the decade of the 50-year HCP.These Impact Statement(DEIS)for the habitats include eight stand-structure proposed issuance of the incidental take purpose of,otherwise lawful activities. types (ranging from early-successional Regulations governing permits for permit and approval of the Agreement. threatened and endangered species are stages,such as stand initiation,to late- All comments received will become part in 50 CFR 17.32 and 17.22. successional stages,such as old growth) of the public record and may be The permit application includes a and habitat for owls.Owl-habitat released.This notice is provided Habitat Conservation Plan(HCP) and projections include projections for pursuant to section 10(c) of the Act and the Agreement.In the HCP,the nesting,roosting,and foraging habitat, National Environmental Policy Act Applicant has addressed species and for foraging and dispersal habitat. regulations (40 CFR 1506.6). conservation and ecosystem Mitigation for gray wolves and grizzly DATES:Written comments on thepermit bears include avoidance of timber management on approximately 170,000 harvest and road construction in certain application and DEIS should be acres of its private land in the Cascade habitats,limits to road densities, received on or before January 7, 1996. Mountains of Washington.The ADDRESSES:Comments regarding the Applicant's ownership occurs in a provisionspof visualt cover, rip other application or DEIS,or requests for "checkerboard"pattern in an area Minimum management prescriptions.alsoions. those documents,should be addressed commonly referred to as the I-90 Minimum prescriptionsan are to William Vogel,U.S.Fish and Wildlife Corridor.The term"checkerboard" provided for riparian and wetland areas, Service,Pacific Northwest Habitat refers to alternate sections ofpublic and and WatershednAnalysiscwill be •^ completed on an accelerated basis. Conservation Plan Program, 3773 Martin private land.The"checkerboard"HCP Specific prescriptions to minimize and Way East,Building C—Suite 101, planning area is approximately 419,000 mitigate impacts will also be Olympia,Washington 98501; (360) 534- acres in size.The term of the proposed implemented for other species and 9330.Please refer to permit No.PRT- permit is 50 years from the date of special habitats. 808398 when submitting comments. issuance,with a possible extension of The DEIS considers four alternatives, Individuals wishing copies of the an additional 50 years for safe-harbor including the Proposed Action and the documents for review should provision purposes. No-action Alternatives.Under the No- immediately contact the office listed The Applicant is requesting a permit action Alternative,the Applicant would above.Copies of the documents are also for the incidental take of northern avoid the take of all Federally listed available at the following libraries: spotted owls(Strix occidentalis caurina) species and no permit would be issued. Wenatchee Public Library,Attention: (owls)which may occur as a result of Under the Riparian Alternative, Joy,310 Douglas Street,Wenatchee, timber harvest and related activities emphasis for conservation of fish and Washington 98801 within a portion of the owl sites present wildlife species would be placed in University of Washington Library, on the Applicant's property.There are riparian and wetland areas;other Attention:Carolyn Aamot, currently more than 100 owl sites that portions of the ownership would be Government Publications Department, impact operations within the planning managed for aggressive timber harvest. 170 Suzzallo Library,Seattle, area.The Applicant plans to avoid the Under the Dispersal Alternative, Washington 98195-2900 take of marbled murrelets riparian areas would be managed for Seattle Public Library,Attention: (Brachyramphus marmoratus fish and wildlife,but,in addition, Jeanette Voiland,Government marmoratus),but has included upland areas would be managed to Publications Department, 1000 Fourth murrelets in the incidental take permit provide dispersal habitat for owls.The Avenue,Seattle,Washington 98104 application in case some incidental take Proposed Action builds upon the Evergreen State College,Attention:Lee occurs.The Applicant has also included benefits of the previous alternatives.It Lyttle,Library Campus Parkway— grizzly bears (Ursus arctos=U.a. places emphasis for conservation on L23100H,Olympia,Washington horribilis) and gray wolves (Canis riparian and wetland areas,but,also, 98505 lupus) in the permit application to cover commits to implementation of the Central Washington University, the circumstance where these species Applicant's Environmental Principles; Attention:Dr.Patrick McLaughlin, may occur on the subject property in the provides for nesting,roosting,and Library Collection Development, future and may at some point be subject foraging habitat for owls,and provides Ellensburg,Washington 98926 to take.The Applicant has addressed for habitat deferrals for owls and King County Library System,Attention: numerous other species in their HCP goshawks.The Proposed Action /0"\ Cheryl Standley,Documents and is requesting the unlisted-species includes specific mitigation for other Department, 1111 110th Avenue and safe-harbor provisions in the currently listed and unlisted wildlife Northeast,Bellevue,Washington Agreement for vertebrate species which species such as the gray wolf,grizzly 98004 may be found in habitats within the bear,Larch Mountain salamander,and 57724 Federal Register / Vol. 60, No. 222 / Friday, November 17, 1995 / Notices other vertebrate species and special Dated:November 2, 1995. center parking area to improve vehicular r\ habitats. Warren Beach, circulation;and the addition of a garage Dated:November 6, 1995. Acting Director,Northeast Field Area. and storage building in the maintenance Thomas J.Dwyer, [FR Doc.95-28363 Filed 11-16-95;8:45 am] area. BILLING CODE 4310-70-M The DEIS/GMP in particular evaluates Deputy Regional Director,Region 1,Portland, the environmental consequences of the Oregon. proposed action and the other [FR Doc.95-27962 Filed 11-16-95;8:45 am] General Management Plan/ alternative on water resources,flood BILLING CODE 4310-55-P Development Concept Plan, Draft plains,wetlands,geology,soils, Environmental Impact Statement, vegetation,wildlife,threatened and Natural Bridges National Monument, endangered species,air quality,visual National Park Service UT interpretation,socioeconomic data, health and safety,law enforcement, Fort McHenry National Monument and AGENCY:National Park Service,Interior. other agencies,management and Historic Shrine, MD; Concession ACTION:Availability of draft operations,and cumulative impacts. Contract environmental impact statement and The environmental consequences of the general management plan/development proposed action and alternative AGENCY:National Park Service,Interior. concept plan for Natural Bridges considered are fully disclosed in the ACTION:Public notice. National Monument. DEIS/GMP/DCP. FOR FURTHER INFORMATION: Contact SUMMARY:Pursuant to section 102(2)(c) Superintendent,Natural Bridges SUMMARY:Public notice is hereby given of the National Environmental Policy National vMonument,at the above that the National Park Service proposes Act of 1969,the National Park Service to issue a concession contract for (NPS) announces the availability of a address and telephone number. operations currently conducted by Draft Environmental Impact Statement/ Dated:October 20, 1995. Evelyn Hill Corporation authorizing the General Management Plan/Development Roy Everhart, continuation of gift and souvenir sales Concept Plan(DEIS/GMP) for Natural Intermountain Field Area,National Park for the public at Fort McHenry National Bridges National Monument,Utah. Service. Monument And Historic Shrine, DATES:The DEIS/GMP will remain [FR Doc.95-28379 Filed 11-16-95;8:45 am] Baltimore,Maryland,for a period of five available for public review until January BILLING CODE 4310-70-P (5)years from January 1, 1996 through 16, 1996.If any public meetings are held December 31,2000. concerning the DEIS/GMP,they will be EFFECTIVE DATE:January 16, 1996. announced at a later date. Advisory Commission for the San ADDRESSES:Comments of the DEIS/GMP Francisco Maritime National Historical PIN ADDRESS:Interested parties should should be sent to the Superintendent, Park; Meeting contact the Superintendent,Fort Natural Bridges National Monument, Agenda for the December 7, 1995 McHenry National Monument and Box 1—Natural Bridges,Lake Powell, Meeting of the Advisory Commission Historic Shrine,Baltimore,Maryland Utah 84533-0101.Public reading copies for the San Francisco Maritime 21230-5393,for information as to the of the DEIS/GMP will be available for National Historical Park requirements of the proposed contract. review at the following locations: SUPPLEMENTARY INFORMATION:This Office of the Superintendent,Natural Public Meeting,Fort Mason,Building C, National Monument,Box 1— Room 370,9:30 am-12:15 pm contract renewal has been determined toBridges be categorically excluded from the Natural Bridges,Lake Powell,Utah 9:30 am—At Building C procedural provisions of the National 84533-0101, (801) 692-1234 Welcome—Neil Chaitin,Chairman, Environmental Policy Act and no Office of Public Affairs,National Park Proclamation Presentation—Neil environmental document will be Service,Department of the Interior, Chaitin,Chairman, prepared. 18th and C Streets NW.,Washington, Opening Remarks—Neil Chaitin, DC 20240,Telephone: (202) 208- Chairman The foregoing concessioner has 6843. William G.Thomas,Superintendent performed its obligations to the Old Business satisfaction of the Secretary under an SUPPLEMENTARY INFORMATION:The DEIS/ Approval of Minutes existing contract which expired by GMP analyzes two alternatives which 9:45 am—Orientation to Park are being considered to direct the Departments limitation of time on December 31, management and development of p 1992,and therefore pursuant to the g p Collections,Judy Hitzeman, Natural Bridges National Monument for Supervisory Archivist provisions of Section 5 of the Act of P Y October 9, 1965 (79 Stat. 969; 16 U.S.C. a period of about ten years. Small Craft,William Doll,Curator of The alternatives include: (1) No Small Craft 20),is entitled to be given preference in Action—Under this alternative,existing 10:05 am—Update—Museum the renewal of the contract and in the facilities and management actions p negotiation of a new contract as defined g Accreditation SanlFrancisco would remain unchanged; (2) Proposed Maritime National Historical Park, in 36 CFR,Section 51.5. Plan—Under the proposal,the Marc Hayman—Chief, The Secretary will consider and administrative/visitor center would be Interpretation and Resource evaluate all proposals received as a expanded to provide 900-1,400 square Management result of this notice.Any proposal, feet of office and sales space;removal 10:15 am—Update—General including that of the existing and rehabilitation of a small picnic area, Management Plan,William G. concessioner,must be postmarked or the addition of a comfort station and Thomas,Superintendent ,—•\ hand delivered on or before the sixtieth benches for visitor comfort along the 10:30 am—Break. (60) day following publication of this loop road;the addition of housing for 12 10:45 am—FY-96 Ships Division notice to be considered and evaluated. future employees;redesign of the visitor Priorities,Acting Ships Manager 6254 Federal Register / Vol. 61, No. 33 / Friday, February 16, 1996 / Notices Name Permit No. Issuance date Ray Griffiths 800793 6/22/95 Zentner and Zentner, Incorporated 800794 6/22/95 James Deacon 794782 6/27/95 Patricia Ann Hobell 789266 6/27/95 San Marino Environmental Consultants 781377 7/3/95 Louis Courtois 802446 7/20/95 Elaine Harding-Smith 802445 8/4/95 Biosearch Wildlife Surveys 768251 8/9/95 Jepson Prairie Reserve 800777 8/9/95 Donald L. Davis 800797 8/9/95 Carl J. Page 802094 8/11/95 Patricia Baird 802107 8/11/95 Manomet Observatory for Conservation Sciences 800922 8/11/95 John E. Moeur 802092 8/13/95 Stephen J. Myers 804203 8/13/95 A.G.Crook Company 802456 8/18/95 California Department of Water Resources 801821 9/5/95 Regional Environmental Consultants 797665 9/5/95 Lisa Webber 802086 9/5/95 Thomas Roberts 802103 9/5/95 Carolee Caffrey 802104 9/5/95 Robert A.Aramayo 804207 9/20/95 Assistant Regional Director-Ecological Services, Region 1, U.S. Fish and Wildlife Service 702631 10/19/95 Arthur Davenport 802450 10/30/95 Patrice Ashfield 807056 11/3/95 Enterprise Advisory Services, Incorporated 806723 11/10/95 Janet Randall 799486 12/4/95 Becky Yeager 804076 12/6/95 FOR FURTHER INFORMATION CONTACT: known to occur on property owned by Asheville,North Carolina or Charleston, Chief,Division of Consultation and the Applicants in Orangeburg County, South Carolina Field Offices.Written Conservation Planning,U.S.Fish and South Carolina.The Applicants propose data or comments concerning the Wildlife Service,Ecological Services, to harvest 106 acres of timber on their application,EA,or HCP should be 911 N.E. 11th Avenue,Portland,Oregon 446-acre property located approximately submitted to the Regional Office.Please 97232-4181 (tel: 503-231-2063;fax: 3.5 miles south of Elloree.The proposed reference permit under PRT-810934 in 503-231-6243). permit would authorize incidental take such comments. Dated:February 9, 1996. of RCWs on this property in exchange U.S. Fish and Wildlife Service (AES/ Thomas Dwyer, for mitigation elsewhere as described TE), 1875 Century Boulevard,Suite Deputy Regional Director,Region 1,Portland, further in the Supplementary 200,Atlanta,Georgia 30345, Oregon. Information Section below. Telephone:404/679-7110,Fax:404/ IFR Doc.96-3565 Filed 2-15-96;8:45 am] The Service also announces the 679-7081 BILLING CODE 4310-55-P availability of an environmental Field Supervisor,U.S. Fish and Wildlife assessment(EA) and habitat Service, 160 Zillicoa Street,Asheville, conservation plan (HCP) for the North Carolina 28801,Telephone: Availability of an Environmental incidental take application. Copies of 704/258-3939 Assessment and Receipt of an the EA or HCP may be obtained by Field Supervisor,U.S.Fish and Wildlife Application Submitted by Ms.Suzanne making a request to the Regional Office Service,217 Fort Johnson Road, Gasque and Ms.Jewel Felkel for an address below.Requests must be Charleston,South Carolina 29422- Incidental Take Permit for Red- submitted in writing to be processed. 2559,Telephone:803/727-4707. cockaded Woodpeckers in Association This notice is provided pursuant to FOR FURTHER INFORMATION CONTACT: With Timber Harvesting Activities on Section 10©of the Act and National Janice Nicholls at the Asheville,North Their Property in Orangeburg County, Environmental Policy Act Regulations Carolina Field Office,or Lori Duncan at South Carolina (40 CFR 1506.6). the Charleston,South Carolina,Field AGENCY:Fish and Wildlife Service, DATES:Written comments on the permit Office,or Rick G.Gooch at the Atlanta, Interior. application,EA and HCP should be sent Georgia,Regional Office. ACTION:Notice. to the Regional Permit Coordinator in SUPPLEMENTARY INFORMATION:The RCW Atlanta, Georgia,at the address below is a territorial,non-migratory SUMMARY:Ms.Suzanne Gasque and Ms. and should be received on or before cooperative breeding bird species. Jewel Felkel (Applicants) have applied March 18, 1996. RCWs live in social units called groups to the U.S. Fish and Wildlife Service for ADDRESSES:Persons wishing to review which generally consist of a breeding an incidental take permit pursuant to the application,HCP,and EA may pair,the current year's offspring,and Section 10(a)(1)(B) of the Endangered obtain a copy by writing the Service's one or more helpers(normally adult Species Act of 1973 (Act),as amended. Southeast Regional Office,Atlanta, male offspring of the breeding pair from "'".N The proposed permit would authorize Georgia.Documents will also be previous years). Groups maintain year- the incidental take of a federally available for public inspection by round territories near their roost and endangered species,the red-cockaded appointment during normal business nest trees.The RCW is unique among woodpecker Picoides borealis(RCW) hours at the Regional Office;or the the North American woodpeckers in Federal Register / Vol. 61, No. 33 / Friday, February 16, 1996 / Notices 6255 that it is the only woodpecker that The EA considers the environmental ADDRESSES:Requests for complete excavates its roost and nest cavities in consequences of three alternatives, copies of the regulations,reproduction /'1 living pine trees.Each group member including the proposed action.The rights and the display and participation has its own cavity,although there may proposed action alternative is issuance agreements should be addressed to: be multiple cavities in a single pine tree. of the incidental take permit and Federal Duck Stamp Contest,U.S.Fish The aggregate of cavity trees is called a implementation of the HCP as submitted and Wildlife Service,Department of the cluster.RCWs forage almost exclusively by the Applicants.The HCP will Interior, 1849 C Street NW.,Suite 2058, on pine trees and they generally prefer provide for the provisioning of 4 Washington,DC 20240. pines greater than 10 inches diameter at clusters with artificial starts and cavities Location of Contest:Department of breast height.Foraging habitat is on suitable habitat on the Sandhills the Interior Building,Auditorium (C contiguous with the cluster.The State Forest in Chesterfield County.The Street entrance), 1849 C Street NW., number of acres required to supply Sandhills State Forest is part of a Washington,DC. adequate foraging habitat depends on designated recovery population for the FOR FURTHER INFORMATION CONTACT: the quantity and quality of the pine RCW in the South Carolina Sandhills Mrs. Lita F.Edwards,Telephone (202) stems available. Physiographic Province.The State 208-4354 or Fax(202) 208-6296. The RCW is endemic to the pine Forest has a total of 46,000 acres of SUPPLEMENTARY INFORMATION:The forests of the Southeastern United States which 40,000 acres are manageable pine following five eligible species for the and was once widely distributed across lands (predominately longleaf pine). 1996-97 duck stamp contest are as 16 States.The species evolved in a The State Forest currently has 55 active follows: mature fire-maintained ecosystem.The RCW groups with a long-term goal of (1) Canada Goose RCW has declined primarily due to the increasing the population to assist with (2) Greater Scaup conversion of mature pine forests to the recovery of the South Carolina (3) Green-Winged Teal young pine plantations,agricultural Sandhills population.The HCP will also (4) Northern Pintail fields,and residential and commercial involve the translocation of any (5) Black Duck developments,and to hardwood juveniles produced by the breeding pair The primary author of this document encroachment in existing pine forests on the Gasque/Felkel property to the is Mrs.Lita F.Edwards,U.S. Fish and due to fire suppression.The species is provisioned sites at the Sandhills State Wildlife Service. still widely distributed (presently Forest.Finally,the HCP will involve Dated:February 6, 1996. occurs in 13 southeastern States),but monitoring the provisioned sites for a John G.Rogers,Jr., remaining populations are highly specified time period at the State Forest fragmented and isolated.Presently,the to determine success of the provisioning Director. largest populations occur on federally efforts.The HCP provides a funding [FR Doc.96-3562 Filed 2-15-96;8:45 am] owned lands such as military source for the mitigation measures. BILLING CODE 4310-55-M installations and national forests. Dated:January 9, 1996. /.\ In South Carolina,there are an Noreen K.Clough, Bureau of Land Management estimated 681 active RCW clusters as of 9 1994; 67 percent are on Federal lands, Regional Director. [CACA 35919 6 percent are on State lands,and 27 [FR Doc.96-3566 Filed 2-15-96;8:45 am] l percent are on private lands.The BILLING CODE 4310-55-P California; Classification of Public populations on public lands are Lands generally stable,and in some cases are increasing.The overall population trend Migratory Bird Hunting and AGENCY:Bureau of Land Management, on private lands in South Carolina,on Conservation Stamp(Duck Stamp) Interior. the other hand,is downward.Most Contest ACTION:Notice,CA-35919. RCW populations on private lands are AGENCY:Fish and Wildlife Service, SUMMARY:The following described lands relatively small and isolated. Interior. have been examined and found suitable The Applicant's land in Orangeburg ACTION:Notice. for classification for recreation and County hosts a small and isolated public purposes under the provisions of population of RCWs.As of 1995,there SUMMARY:The Service announces the the Recreation and Public Purposes Act were 2 active RCW clusters; 1 breeding dates and locations of the 1996 Federal (R&PP) of June 14, 1926,as amended (43 group and 1 solitary adult male.The Duck Stamp Contest;the public is U.S.C.869 et.seq.).The Bureau of Land nearest known RCW group occurs on invited to attend. private lands approximately 2.5 miles to Management will reclassify 160 acres of pP Y DATES: 1.The 1996 contest opens for public land in San Bernardino County the north of the Gasque/Felkel tract near submission July 1, 1996. to facilitate the Colorado River Law Elloree.The nearest known RCW 2.The public may view the 1996 Enforcement Shooting Range Project. concentration(greater than 5 groups) Federal Duck Stamp Contest entries on occurs over 10-15 miles away on the Tuesday,October 15, 1996,from 10:00 DATE:Comments must be received by Manchester State Forest/Shaw Air Force a.m.to 2:00 p.m.,in the Department of April 1, 1996.Adverse comments will Base to the north in Sumter County,and the Interior Auditorium. be reviewed by the State Director. on the privately-owned Norfolk 3.This year's judging will be held ADDRESS: Bureau of Land Management, Southern property located south of the from October 16-17, 1996,beginning at Area Manager,Needles Resource Area, Gasque/Felkel tract in Dorchester 10:30 a.m.on Wednesday,October 16, 101 W.Spikes Road,Needles, County.The Applicants propose to and continuing at 9:00 a.m.on California,92363. harvest timber on their property for Thursday,October 17. FOR FURTHER INFORMATION CONTACT: supplemental income.Timber 4.Persons wishing to enter this year's George R.Meckfessel,Planning& harvesting activities may result in death contest may submit entries anytime after Environmental Coordinator, (619) 326- /'—'‘of,or harm to,any remaining RCWs Monday,July 1,but all must be 3896. through the loss of nesting and foraging postmarked no later than midnight SUPPLEMENTARY INFORMATION:On habitat. Sunday,September 15, 1996. February 9, 1996 a decision was made APPENDIX 17: Examples of Issued Incidental Take Permits 3-201(10/86) DEPARTMENT OF THE INTERIOR U.S.FISH AND WILDLIFE SERVICE 2.AUTHORITY-STATUTES r�NsFFIVICF * LDLIF, FEDERAL FISH AND WILDLIFE PERMIT 16 USC1539(a)(1)(B) REGULATIONS(ATTACHED) "'�• 1 50CFR§13&17,&21 3. NUMBER PRT-XXXXX 1.PERMITTEE 4.RENEWABLE 5.MAY COPY NAME XXXX YES XX O( YES ADDRESS NO NO CITY,STATE,ZIP CODE PHONE 6.EFFECTIVE 7.EXPIRES 09/21/96 12/31/2095 8.NAME AND TITLE OF PRINCIPAL OFFICER(IF#1 is A BUSINESS) 9.TYPE OF PERMIT N/A INCIDENTAL TAKE-ENDANGERED SPECIES 10.LOCATION WHERE AUTHORIZED ACTIVITY MAY BE CONDUCTED TWO TRACTS OF LAND,ONE ENCOMPASSING 7,200 ACRES. BOTH ARE LOCATED IN NORTH CAROLINA,AS DESCRIBED IN THE PERMITTEE'S HCP. 11.CONDITIONS AND AUTHORIZATIONS: A. GENERAL CONDITIONS SET OUT IN SUBPART D OF 50 CFR§ 13,AND SPECIFIC CONDITIONS CONTAINED IN FEDERAL REGULATIONS CITED IN BLOCK#2 ABOVE,ARE HEREBY MADE A PART OF THIS PERMIT. ALL ACTIVITIES AUTHORIZED HEREIN MUST BE CARRIED OUT IN ACCORD WITH AND FOR THE PURPOSES DESCRIBED IN THE APPLICATION SUBMITTED. CONTINUED VALIDITY,OR RENEWAL,OF THIS PERMIT IS SUBJECT TO COMPLETE AND TIMELY COMPLIANCE WITH ALL APPLICABLE CONDITIONS,INCLUDING THE FILING OF ALL REQUIRED INFORMATION AND REPORTS. B. THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN,STATE,LOCAL OR OTHER FEDERAL LAW. C. VALID FOR USE BY PERMITTEE NAMED ABOVE,AND HIS DESIGNATED AUTHORIZED AGENTS. D. ACCEPTANCE OF THIS PERMIT SERVES AS EVIDENCE THAT THE PERMITTEE AND HIS AUTHORIZED AGENTS UNDERSTAND AND AGREE TO ABIDE BY THE TERMS OF THIS PERMIT AND ALL SECTIONS OF TITLE 50 CODE OF FEDERAL REGULATIONS,PARTS 13 AND 17,PERTINENT TO ISSUED PERMITS. SECTION 11 OF THE ENDANGERED SPECIES ACT OF 1973,AS AMENDED,PROVIDES FOR CIVIL AND CRIMINAL PENALTIES FOR FAILURE TO COMPLY WITH PERMIT CONDITIONS. XX BLOCK 11 OF THIS PERMIT CONSISTS OF ITEMS A-P(5 PAGES TOTAL) 12. REPORTING REQUIREMENTS REPORTS WILL BE PROVIDED TO THE U.S.FISH AND WILDLIFE SERVICE OFFICES APPEARING IN ITEMS N,0,AND PERMIT. THE FIRST REPORT IS DUE DECEMBER 31, 1996. ISSUED BY: TITLE DATE REGIONAL DIRECTOR,FWS, SOUTHEAST REGION ORIGINAL Page 2 of 5 NAME STREET ADDRESS CITY, STATE, ZIP CODE PHONE PERMIT NUMBER E. The Permittee owns the lands identified in Block#10, above. Within the 8,000-acres encompassed within the property, surveys indicate that approximately 1,121-acres are occupied by the endangered red-cockaded woodpecker,Picoides borealis, and that approximately 3,363 acres is currently unoccupied,but suitable Picoides borealis habitat. The Permit authorizes the take of the endangered red-cockaded woodpecker,Picoides borealis, incidental to lawful timber harvest and other land management activities (Project). Twelve Picoides borealis groups may be incidentally taken under the authority of this Permit, subject to the terms and conditions stipulated herein. Additionally,this Permit provides authorization to incidentally take any"future"Picoides borealis that may occupy the Project after the effective date of this Permit and for its duration, subject to the terms and conditions stipulated herein. F. Permittee is authorized to take all Picoides borealis cavity trees, located on the lands identified in Block 10 above, under the authority of this permit, subject to the terms and conditions stipulated herein. This permit also constitutes a Special Purpose Permit under 50 CFR § 21.27 for take of Picoides borealis in the amount and/or number and subject to the terms and conditions specified herein. Any such take will not be in violation of the Migratory Bird Treaty Act of 1918, as amended(16 U.S.C. § § 703-12). G. The Permittee agrees to allow U.S. Fish and Wildlife Service personnel,personnel from the North Carolina Wildlife Resources Commission, or these agencies' designated representatives to enter the property identified in Block 10 of this permit for general purposes as specified in 50 CFR §13.21(d)(2). H. The following measures will be employed to ensure that Picoides borealis take is minimized and successfully mitigated for the current Picoides borealis population. For purposes of this Item, success will be accomplished when the Permittee successfully creates twelve new Picoides borealis groups on private, State, and Federal lands in North Carolina within 3 years of the effective date of the permit, or December 31, 1999,whichever is sooner. The Permittee may not incidentally take one (1)extant Picoides borealis group until the successful creation (as defined in Item H.3) of one (1)Picoides borealis group off-site as stipulated herein. As new Picoides borealis groups are created successfully, the Permittee has the option to incidentally take an existing Picoides borealis group, so long as a 1:1 ratio (created:taken) is maintained. 1. The Permittee will fund the creation of a minimum of four(4) artificial cavities (either drilled or inserts) and two (2) cavity starts (forty-eight(48) cavities and twenty-four(24) starts in all)within a minimum of twelve (12)recipient sites. The recipient sites will be determined in cooperation with the Permittee and the U.S. Fish and Wildlife Service. Ultimate approval of the sites will rest with the U.S. Fish and Wildlife Service. Additionally: I. The artificial cavities will be kept screened until all internal sap leakage ceases. If internal sap leakage is severe,the leaking cavity will be replaced with a new starts/cavities. ii. Cavities damaged or made unsuitable due to modification by other species, such as pileated woodpeckers, will be repaired with cavity restrictors or replaced during the 3-year monitoring period. Page 3 of 5 NAME STREET ADDRESS CITY, STATE, ZIP CODE PHONE PERMIT NUMBER H. (Continued) 2. The Permittee will fund the initial management prescriptions, if necessary, for the twelve (12) recipient sites. The management prescriptions may include hardwood mid-story removal and/or understory removal, with the express purpose of enhancing each site's potential to attract and maintain a Picoides borealis breeding group. 3. After cavity provisioning, all provisioned sites must be monitored for subsequent use and/or occupation every four(4) months (April,August, and December)through December 31, 1999, or until success is documented sooner. Success is defined as when each of the twelve (12)provisioned recipient sites is occupied by a Picoides borealis breeding group (as evidenced by observations of copulation during the breeding season, and/or eggs or nestlings; or observation of two adults at a site over a 6-month period during the breeding season). 4. The Permittee will provide funding for implementation of Conditions H.1 through H.3, not to exceed $45,000 (Forty-five thousand dollars). 5. The Permittee agrees to provide a 60-day advance notice prior to timber harvesting and incidental taking of a existing Picoides borealis group,to allow the U.S. Fish and Wildlife Service, or its authorized agent(s), to capture and translocate juvenile Picoides borealis to either candidate sites or other sites selected by the U.S. Fish and Wildlife Service. n Approximately 3,363 acres of the Project area is currently suitable but unoccupied Picoides borealis habitat. The Permittee agrees to the following mitigation/minimization strategy in the event that, at some point after the effective date of this permit, additional ("future")Picoides borealis occupy these lands: 1. Continue to conduct Picoides borealis-compatible land management within the currently unoccupied acreage, including (but not limited to)thinning,prescribed burning, and hardwood mid-story control. 2. Avoid any activities that may result in incidental take during the nesting season (generally March through August),within the foraging and nesting area of a"future"Picoides borealis group. 3. Provide a 60-day advance notice to the U.S. Fish and Wildlife Service to allow for the capture and translocation of any adult and/or juvenile Picoides borealis that may be directly impacted by future timber-harvesting activities within the occupied and utilized habitat of these "future"Picoides borealis group. 4. Allow the U.S. Fish and Wildlife Service to enter the unoccupied 3,363 acres to provision suitable sites (at its expense)with the intent of accelerating the chances of Picoides borealis occupancy. 5. Allow the U.S. Fish and Wildlife Service to enter the areas of the Project site that are occupied by "future"Picoides borealis during the term of the Permit for the express purpose of Picoides borealis capture and translocation to sites selected by the U.S. Fish and Wildlife Service. Page 4 of NAME STREET ADDRESS CITY, STATE, ZIP CODE .-� PHONE PERMIT NUMBER J. The Permittee must select an experienced contractor to perform the mitigation and minimization and monitoring duties as described in this Permit. The selected contractor must be pre-approved by the contact office of the U.S. Fish and Wildlife Service and must obtain all necessary local, State, and Federal permits prior to initiating the work. The Permittee, upon further consultation and approval from the U.S. Fish and Wildlife Service, will select a contractor and develop an expenditure budget for the funds identified in Item H.4, above. K. By December 31, of each year this Permit is valid, (starting in 1996)the Permittee will submit an annual report to U.S. Fish and Wildlife Service offices listed in Items N, 0, and P of this Permit. The annual reports are due as specified until the successful creation of twelve (12)Picoides borealis groups, as described in Item I, above, is achieved, or December 31, 1999,whichever is soon. The annual report shall outline and describe the implementation and success of mitigation and minimization measures as identified below: 1. Progress on compliance with the success criteria outlined in Condition I. Further,the annual report must specify the number of incidental take actions taken upon the existing twelve (12)Picoides borealis groups, if applicable. 2. A copy of the executed contract with the qualified contractor, as outlined in Item J, if not previously provided. 3. An accounting of the funding identified in Item H.4. 4. Include any corrective measures or other changes that may be necessary to improve the efficacy of the Permit. L. Upon locating a dead, injured, or sick Picoides borealis, initial notification must be made immediately to the U.S. Fish and Wildlife Service Law Enforcement Office, Strom Thurman Federal Building, 1835 Assembly Street, Room 971-B, Columbia, South Carolina 29201. The phone number is 803/765-5626. Notification should also be made (by the next work day)to the U.S. Fish and Wildlife Service office appearing in Item N, below. Care should be taken in handling sick or injured specimens to ensure effective treatment and care in handling dead specimens to preserve biological materials in the best possible state for later analysis of cause of death. In conjunction with the care of sick or injured endangered species or preservation of biological materials from a dead animal, the finder has the responsibility to ensure that evidence intrinsic to the specimen is not unnecessarily disturbed. M. The Permittee and the U.S. Fish and Wildlife Service acknowledge that even with the above detailed provisions for mitigating impacts to Picoides borealis, circumstances could arise which were not fully anticipated by this Permit and which are considered unforeseen. Such circumstances may become apparent either to the Permittee, his authorized agents, or to personnel of the U.S. Fish and Wildlife Service. For purposes of implementation of this condition, unforeseen circumstances are defined as any significant, unanticipated adverse change in the status of species; any significant, unanticipated adverse change in impacts of the Project or in other factors upon which the HCP and Permit are based; or any other significant new Page 5 of 5 NAME STREET ADDRESS CITY, STATE, ZIP CODE PHONE PERMIT NUMBER M. (Continued) information relevant to the Permit and Project that was unforeseen by the Permittee and the U.S. Fish and Wildlife Service that could give rise to the need to review the Permittee's conservation program. If unforeseen circumstances arise,the Permittee and the contact office of the U.S. Fish and Wildlife Service shall meet within twenty (20)working days following notice of such unforeseen circumstances. The Permittee shall develop appropriate measures and begin their implementation within an additional thirty (30)working days. N. For purposes of administration of the monitoring and compliance aspects, addressing unforeseen circumstances, and other matters associated with implementation of this Permit,the contact office of the U.S. Fish and Wildlife Service is: Field Supervisor(HCP Program) U.S. Fish and Wildlife Service 160 Zillicoa Street Asheville,North Carolina 28801 Phone: 704/258-3939 O. For purposes of administration of the monitoring and compliance aspects, addressing unforeseen circumstances, and other matters associated with implementation of this Permit,the alternative contact office of the U.S. Fish and Wildlife Service is: Field Supervisor(HCP Program) U.S. Fish and Wildlife Service Department of Forest Resources 261 Lehotsky Hall, Box 341003 Clemson, South Carolina 29634-1003 Phone: 803/656-2432 P. Copies of annual reports will also be provided to the following U.S. Fish and Wildlife Service offices: Endangered Species Permits (AES/TE/P) U.S. Fish and Wildlife Service 1875 Century Boulevard, Suite 200 Atlanta, Georgia 30345 Phone: 404/679-7110 END DEPARTMENT OF THE INTERIOR 3-201(10/86) U.S.FISH AND WILDLIFE SERVICE 2.AUTHORITY-STATUTES "MYR' FEDERAL FISH AND WILDLIFE PERMIT 16 USC1539(a)(1)(B) REGULATIONS(ATTACHED) i '° 50 CFR§13&17,&21 3. NUMBER PRT-XXXXX 1.PERMITTEE 4.RENEWABLE 5.MAY COPY NAME XXXX YES XXXX YES ADDRESS CITY,STATE,ZIP CODE NO NO PHONE 6.EFFECTIVE 7.EXPIRES 11/07/96 11/07/2046 8.NAME AND TITLE OF PRINCIPAL OFFICER(IF#1 is A BUSINESS) 9.TYPE OF PERMIT N/A ENDANGERED/THREATENED SPECIES If 10.LOCATION WHERE AUTHORIZED ACTIVITY MAY BE CONDUCTED grange County,California:on lands specified within the body of the permit. 11.CONDITIONS AND AUTHORIZATIONS: A. GENERAL CONDITIONS SET OUT IN SUBPART D OF 50 CFR§13,AND SPECIFIC CONDITIONS CONTAINED IN FEDERAL REGULATIONS CITED IN BLOCK#2 ABOVE,ARE HEREBY MADE A PART OF THIS PERMIT. ALL ACTIVITIES AUTHORIZED HEREIN MUST BE CARRIED OUT IN ACCORD WITH AND FOR THE PURPOSES DESCRIBED IN THE APPLICATION SUBMITTED. CONTINUED VALIDITY,OR RENEWAL,OF THIS PERMIT IS SUBJECT TO COMPLETE AND TIMELY COMPLIANCE WITH ALL APPLICABLE CONDITIONS,INCLUDING THE FILING OF ALL REQUIRED INFORMATION AND REPORTS. B. THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN,STATE,LOCAL OR OTHER FEDERAL LAW. C. VALID FOR USE BY PERMITTEE NAMED ABOVE,AND HIS DESIGNATED AUTHORIZED AGENTS. D. FURTHER CONDITIONS OF AUTHORIZATION ARE CONTAINED IN THE ATTACHED SPECIES TERMS AND CONDITIONS. 12. REPORTING REQUIREMENTS See permit conditions for reporting. ISSUED BY: TITLE DATE Ae.'\ U.S. FISH AND WILDLIFE SERVICE,PORTLAND, OREGON PERMIT CONDITIONS FOR PRT-784571 D. Acceptance of this permit serves as evidence that the permittees, and their designated agents, understand and agree to abide by the "General Conditions for Native Endangered and Threatened Wildlife Species Permits" (copy attached). E. The permittees, and their designated agents, are authorized to incidentally take coastal California gnatcatchers (Polioptila californica californica)occupying 27 of the 142 acres of coastal sage scrub and 108 acres of cactus scrub habitat in the course of otherwise lawful development and conservation activities, as described in the permittees' application and supporting documents, and as conditioned herein. F. The permittees, and their designated agents, are authorized to incidentally take cactus wrens (Campylorhynchus brunneicappilus cousei) located in 83 of the 108 acres of cactus scrub and 142 acres of coastal sage scrub, in the course of otherwise lawful development and conservation activities, as described in the permittees' application and supporting documents, and as conditioned herein. Provided that this permit has become effective,per term and condition G below,take authorization for the cactus wren shall become effective upon the listing of the species under the Federal Endangered Species Act of 1973, as amended, (Act)to the extent that take would otherwise be prohibited under section 9 of the Act, and its implementing regulations, or pursuant to a rule promulgated under section 4(d) of the Act. G. As noted in the Implementing Agreement, Section V.A.3.a(1),take authorization for Western Shell Oil, Inc. (Shell) shall become effective upon demonstration in writing to the U.S. Fish and Wildlife Service (Service)of the transfer of ownership from Shell to the California Department of Parks and Recreation(State Parks) of the approximately 979-acre parcel depicted on Exhibit 23 of the Habitat Conservation Plan. Also as noted in the Implementing Agreement, Section V.A.3.a(2),take authorization for the Metropolitan Water District shall become effective upon demonstration in writing to the Service of the recordation of an open space/conservation easement and/or offer of dedication to State Parks. H. This permit shall remain in effect for 50 years or until an earlier time as provided in the Implementing Agreement, including Section III.B., VII, or VIII.E.. The authorization granted by this permit is subject to full and complete compliance with, and implementation of, the Habitat Conservation Plan and Implementation Agreement, executed by the permittees, State Parks, and the Service. Attachment A summarizes the responsibilities of the applicants while conducting activities that may effect coastal California gnatcatchers and cactus wrens. J. Upon locating dead, injured, or sick federally-listed endangered or threatened species, initial notification must be made within three (3) working days of the finding to the Service's Division of Law Enforcement, Torrance, California at(370 Amapola Avenue, Suite 114, Torrance, California 90501,telephone 310-297-0062) and The Service's Carlsbad Field Office at(2730 Loker Avenue West, Carlsbad, California 92008,telephone 619-431- 9440). Also, the Service must be notified immediately, in the event that habitat loss exceeds the amount authorized in the Habitat Conservation Plan and Implementing Agreement. Written notification to both offices must-be made within 5 calendar days. K. As noted in the Implementing Agreement, Section V.A.3.b(3) and in the Habitat Conservation Plan, Section V, an annual report shall be prepared and submitted by a She1UMWD funded biologist by December 31 of each year that the permit is in effect, beginning in 1997. One copy of the report shall be submitted to each of the following: ^ 1)Regional Director, U.S. Fish and Wildlife Service 911 Northeast 11th Avenue, Portland, Oregon 97232, and 2) Field Supervisor, U.S. Fish and Wildlife Service, 2730 Loker Avenue West, Carlsbad, California 92008. The annual report shall include the results of coastal sage scrub and cactus scrub habitat surveys, the cowbird trapping program,the population estimates, and the determination of the extent and the locations of habitat used by the coastal California gnatcatcher, cactus wren, and any other sensitive species present in the Northeast Preserve, Telegraph Canyon, and Carbon Canyon area. Following the completion of the restoration program, the Golf Course Habitat Conservation Area will be included in the annual reporting. L. A copy of this permit and Attachment A must be in the possession of the permittees and designated individuals while conducting taking activities (construction or grading). Please refer to the permit number in all correspondence and reports concerning permit activities. Any questions you may have about this permit should be directed to the Field Supervisor, Carlsbad Field Office. /'\ ATTACHMENT A A copy of this Attachment must be in the possession of the permittees and designated individuals while conducting activities that may effect the coastal California gnatcatcher and cactus wren or their habitats. The following construction management and monitoring measures shall be implemented to minimize impacts to coastal California gnatcatchers, cactus wrens, and coastal sage and cactus scrub habitats: 1. Construction will be monitored by a U.S. Fish and Wildlife Service (Service) approved biologist, responsible to the project applicant. The contractor and the monitor will review the rough grading plans and staking to ensure that the grading is within the project footprint as described in the HCP. All temporary fencing or other markers will be clearly visible to construction personnel. No construction access,parking or storage of equipment or materials will be permitted within such marked areas. A monitoring biologist(s)will be on-site during brush- clearing and grading of all coastal sage and cactus scrub vegetation. 2. Prior to any construction or grading activities, education of all project personnel regarding the prevention of harm, harassment, injury, or death of wildlife will be provided by the biological monitor. This instruction shall be given as often as necessary to ensure that all personnel working on-site are adequately briefed in the matter. 3. Except as necessary to respond to public health and safety concerns, or otherwise authorized by the Service, no physical disturbance of coastal sage or cactus scrub occupied by nesting coastal California gnatcatcher or cactus wrens will occur in the breeding season(approximately February 15 through August 30). Shell/MWD will provide the Service with maximum practicable notice of the need to proceed under such circumstances to allow for avoidance or other technique. With regard to construction required on the Shell project site,the breeding season limitation shall apply;provided that construction activities necessitating unexpected slope stabilization or erosion control measures ans emergency facility repairs be undertaken subject to the foregoing notice provision , ans minimization of impacts requirement. 4. Shell/MWD, as appropriate,will notify the Service at least seven(7),preferably fourteen (14) calendar days prior to the clearing of cactus or coastal sage scrub habitat. 5. The monitoring biologist(s)will flush coastal California gnatcatchers, cactus wrens, and other wildlife from oc- cupied habitat areas immediately prior to brush-clearing and earth-moving activities. The monitoring biologist(s) will ensure that no coastal California gnatcatchers or cactus wrens will be directly harmed by brush clearing and earth-moving equipment. 6. The monitor will be empowered to temporarily halt construction activities and make recommendations to ensure impact minimization, compliance with the relevant provisions of the incidental take statement, and that work does not take place in habitat areas outside the clearing limits as staked in the field. 7. Coastal sage or cactus scrub habitat within or immediately adjacent to project construction areas will be monitored. Prior to the commencement of grading operations or other activities involving significant soil disturbance, a survey will be conducted to locate all coastal California gnatcatchers and cactus wrens within 100 feet of the outer extent of projected soil disturbance activities, and will be clearly marked and identified on the construction grading/operations plans so that the monitor can make informed recommendations. The purpose of this monitoring will be either to verify that the construction does not adversely affect coastal California gnatcatcher or cactus wren activity or to determine whether"take" occurs, whichever the case may be. If this monitoring indicates that unauthorized take of coastal California gnatcatchers or cactus wrens has occurred, construction will cease pending coordination with the Service. /'1 8. Vehicle transportation routes between cut-and-fill locations will be restricted to a minimum number during construction. Earth-moving equipment will be confined to the narrowest practicable corridor during construction. Waste dirt or rubble will not be deposited on adjacent, native vegetation. Earth-moving equipment will avoid unnecessary maneuvering in areas adjacent to protected habitat. Preconstruction meetings involving the monitoring biologist, construction supervisors, and equipment operators will be conducted and documented to ensure adherence to these measures. APPENDIX 18: "Template Federal Register Notices of Permit Issuance Template Federal Register Notices of Permit Issuance Example l: One Permit U.S.DEPARTMENT OF INTERIOR Fish and Wildlife Service and/or U.S.DEPARTMENT OF COMMERCE National Marine Fisheries Service Issuance of Permit for Incidental Take of Endangered (or Threatened)Species On[date],a notice was published in the Federal Register([vol.no.])FR[first page no.],that an application has been filed with the U.S.Fish and Wildlife Service and/or National Marine Fisheries Service(Service or Services)by[applicant(s)name(s),city and state],for a permit to incidentally take,pursuant to Section 10(a)(1)(B)of the Endangered Species Act of 1973 (16 USC 1539),as amended, [common and scientific name of species]on[location of activity(ies)]pursuant to the terms of the [name of Habitat Conservation Plan]. Notice is hereby given that on[date],as authorized by the provisions of the Act,the Service(s)issued a permit(PRT- )to the above named party(ies)subject to certain conditions set forth therein. The permit was granted only after the Service(s)determined that it was applied for in good faith,that granting the permit will not be to the disadvantage of the endangered[and/or threatened] species,and that it will be consistent with the purpose and policy set forth in the Endangered Species Act,as amended. Additional information on this permit action may be requested by contacting the[name,address,and telephone number of office]between the hours of[hours]weekdays. Date: [Name of person signing] [Title of person signing] U.S.Fish and Wildlife Service [Name of person signing] [Title of person signing] National Marine Fisheries Service Template Federal Register Notices of Permit Issuance Example 2: Multiple Permits U.S.DEPARTMENT OF INTERIOR Fish and Wildlife Service and/or U.S.DEPARTMENT OF COMMERCE National Marine Fisheries Service Issuance of Permit for Incidental Take of Endangered (or Threatened)Species Notice is hereby given that the U.S.Fish and Wildlife Service and/or the National Marine Fisheries Service (Service or Services has(ve)taken the following action with regard to permit applications duly received pursuant to Section 10(a)(1)(B)of the Endangered Species Act of 1974(16 USC 1539),as amended. Each permit listed as issued was granted only after the Service(s)determined that it was applied for in good faith, that granting the permit will not be to the disadvantage of the endangered[and/or threatened]species,and that it will be consistent with the purpose and policy set forth in the Endangered Species Act,as amended. Additional information on this permit action may be requested by contacting the[name,address,and telephone number of office]between the hours of[hours]weekdays. Date: [Name of person signing] [Title of person signing] U.S.Fish and Wildlife Service [Name of person signing] [Title of person signing] National Marine Fisheries Service Erna' as z..�a� U.S.Fish &Wildlife Service I National Oceanic &Atmospheric Administration H; I tF)1 , ,, Addendum to the HGP Handbook Fxecuti ve Summary The joint Fish and Wildlife Service/National Marine Fisheries Service addendum to the \\ : HCP handbook(the"5-point policy") focuses on the expanded use and integrationq of five components of the Habitat Conservation Planning program,namely (1)biological goals,(2)adaptive management,(3)monitoring,(4)permit *414 ' duration,and(5)public participation.The „ _ �.'; purpose of this addendum is to promote nationwide efficiency,effectiveness,and consistency within and between the '.-' -"" »- . tet; Services,and to enhance the HCP program nationwide.These new initiatives are based = , on curent operating conservation programs � # 4* (i.e.,habitat conservation measures)the /'" Services and permittees are incorporating : - 4 ' into HCPs,lessons learned, r recommendations received,and methods the Services are using to strengthen the HCP process to help ensure species conservation. The Services'new guidance was published in the Federal Register on June 1,2000. Biological Goals and Objectives The Services will work with the applicant toR; derive biological goals that are commensurate with the scope of the Young northern spotted owls.USFWS photo proposed action to ensure that they are consistent with conservation actions needed. Biological goals are the broad guiding Adaptive Management adaptive management strategy include,but principles for the operating conservation Adaptive management is an integrated are not limited to,significant biological program;they are the rationale behind the method for addressing uncertainty.It can be uncertainty about specific information about minimization and mitigation strategies. used to examine alternative strategies for the ecology of the species or its habitat(e.g., Specific biological objectives are the meeting the biological goals and objectives food preferences,relative importance of measurable targets for achieving the of an HCP The Services are already predators,territory size),habitat or species biological goals. incorporating adaptive management management techniques,or the degree of provisions into the operating conservation potential effects of the activity on the The Services believe that HCPs will be plans of many HCPs(See the Services' species covered in the incidental take strengthened if they have biological goals HCP Handbook,Chapter 3).In an HCP permit. and objectives integrated into the operating adaptive management will include mutually conservation program.The practice of agreed upon boundaries for its application. Monitoring defining biological goals for HCPs facilitates Monitoring serves not only to ensure the development of conservation strategies Not all HCPs or all species covered in an compliance and gauge the effect_and that ensure that the implementation of the incidental take permit need an adaptive effectiveness of HCPs,it also informs ------ HCP will succeed.These goals and management strategy.However,an adaptive choices under adaptive management objectives must be based on the best management strategy is essential for HCPs provisions,assists in redefining biological �"scientific information available and reflect that would otherwise pose a significant risk goals,and provides the Services with an the conservation needs of the covered to the species due to significant data or important part of the information used to species for an operating conservation information gaps.Possible significant data conduct range-wide assessments of species program. gaps that could lead to the development of an status and baseline conditions. There are at least two types of HCP monitoring:(1)compliance monitoring, 2:.,,,,,l, .� which monitors the permittee's implementation of the requirements of the Ili Iz , tt4. HCP permit,and/or Implementationto. �` q, � �« � � Agreement;and(2)effects and effectiveness g a monitoring,which investigates the impacts of the authorized take and the operating t '" conservation program implemented to verify progress toward the biological goals and ` ;'4: - '`' � objectives.A monitoringprogram should incorporate both types in order to examine effectively all aspects of an HCP and ensure �. the ultimate success of the HCP _ Monitoring measures should be4— 14,,,.. commensurate with the scope and duration " • of the project and the biological significance of its effects.The monitoring program should be flexible so that it can be modified, i if necessary,based on the need for 1.A" additional information.In order to obtain & meaningful information,the applicant and = i the Services should structure monitoring Gopher tortoise.USFWS photo by Harold Waalquist methods and standards so that the results from one reporting period and area to another are comparable,and the monitoring length of time necessary to implement and Services also intend to expand the use of protocol responds to the question(s)asked. achieve the benefits of the operating informational meetings to provide a forum Credible monitored units should reflect the conservation program,and the extent to for answering questions that members of biological objective's measurable units(e.g., which the program incorporates adaptive the public may have regarding HCPs that if the biological objective is in terms of management strategies. are large-scale regional plans and/or maybe numbers of individuals,the monitoring controversial.Although the development of program should measure the number of Public Participation an HCP is the applicant's responsibility,the individuals).The monitoring program must The Services intend to expand public Services will encourage applicants for most be based on sound science and standard participation in the HCP process in order to large-scale,regional HCP efforts to provide survey or other protocols previously provide the public with a greater extensive opportunities for public established should be used. opportunity to assess,review,and critique involvement during the planning and plans as they are being developed.Theimplementation process. Permit Duration Services currently require a 30-day public To date,the Services have issued more than comment period for all formal HCP Copies of the addendum may be viewed and 300 permits,with varying lengths in permit applications,however,the Services printed from the HCP website at http// duration.Having a range of permit recognize the concern of the general public endangered fws.gov/hcp/.Copies may also durations is important,as it takes into regarding the length of thepublic comment be obtained by calling the FWS Division of account both the biological impacts resulting period,especially for large-scale HCPs.The Endangered Species at 703/358 2171 or the from the proposed land use(e.g.,variations Services will provide a 60-day public NMFS Office of Protected Resources at in the length of timber rotations andcomment period for most HCPs.The 301/7131401. treatments)and economic developmental exceptions to a 60-day comment period differences(e.g.,housing development would be those for low-effect HCPs and HCPs versus forestry-related HCPs). large scale regional,or exceptionally complex HCPs.The Services believe the Both FWS and NMFS regulations for current 30-day public comment period incidental take permits outline factors to provides enough time to review amendments consider when determining incidental take and low-effect HCPs.In some cases, permit duration(50 CFR§§17.32 and individual permits under a programmatic 222.307).These factors include duration of HCP may not need additional public review the applicant's proposed activities and the since the larger,programmatic HCP would expected positive and negative effects on have undergone more extensive review In covered species associated with the addition,the minimum comment period for proposed duration including the extent to these HCPs is proposed to be 90 days, which the operating conservation program unless significant public participation --- will increase the survivability of the listed occurs during HCP development. species and/or enhance its habitat.In determining the duration of an incidentalIn addition to extending the public comment U.S. Fish & Wildlife Service take permit,the Services will also consider period,the Services will also seek to National Oceanic & Atmospheric the extent of scientific and commercial data announce the availability ofHCPsinlocal Administration underlying the proposed operating newspapers of general circulation and in conservation program for the HCP the electronic format on an increased basis.The May 2000 �1D.RECO r. v,� :1,6 ROThursday, J ,A "" June 1, 2000 1 44;, ,, ,ic ,/,,/ I1985 CO 0 ...oft. p or 4L 1 Part N I Department of the iiiimi4ovoi, Interior 77Z Fish and Wildlife Service Department of Commerce 7 On!) T National Oceanic and Atmospheric Administration e NI Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting Process; Notice 35242 Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices DEPARTMENT OF THE INTERIOR Background Services believed that non-Federal The Endangered Species Act(ESA) property owners should be provided JCC Fish and Wildlife Service was amended in 1982 to allow the economic and regulatory certainty Secretaries to authorize the taking of regarding the overall cost of species DEPARTMENT OF COMMERCE listed species incidentally to an conservation and mitigation,provided otherwise lawful activity by non-Federal that the affected species were National Oceanic and Atmospheric entities such as states,counties,local adequately covered,and the permittee Administration governments,and private landowners was properly implementing the HCP [Docket No.981208299-0049-021 (section 10(a)(1)(B)).To receive a and complying with the terms and permit,the applicant submits a conditions of the HCP,permit,and RIN:1018—AGO6,0648—XAI4 conservation plan(also referred to as an Implementing Agreement(IA),if used. HCP)that meets the criteria included in The Services codified the"No Notice of Availability of a Final the ESA and its implementing Surprises"policy into a final rule,50 Addendum to the Handbook for Habitat regulations(50 CFR parts 17 and 222). CFR 17.22(b)(5), 17.32(b)(5)and Conservation Planning and Incidental The section 10 incidental take 222.307(g),on February 23,1998(63 FR Take Permitting Process permitting process(or HCP process) 8859).It was at this time that the provides additional flexibility for Services announced our intent to revise AGENCIES:Fish and Wildlife Service, landowners by including planning for the HCP Handbook,both to reflect the Interior,and National Marine Fisheries unlisted species,which enables the final No Surprises rule and to further Service,National Oceanic and process to embrace an ecosystem and enhance the effectiveness of the HCP Atmospheric Administration, landscape-level approach.This process in general through expanded Commerce. proactive approach can reduce future use of five concepts,including permit ACTION:Notice of final policy. conflicts and may even preclude listing duration,public participation,adaptive of species,furthering the purposes of management,monitoringprovisions, SUMMARY:The Fish and Wildlife Service the ESA.As the Services have made mana g and the National Marine Fisheriesand biological goals. many refinements to the process,we Service(the Services)are publishing a have also experienced tremendous On March 9, 1999,the Services final addendum to the Handbook for growth in the demand for Habitat published the draft five-point policy(64 Habitat Conservation Planning and Conservation Plans(HCPs)in recent FR 11485)for public review and Incidental Take Permitting Process(HCP years.In 1992,14 HCPs had been comment.This notice establishes the Handbook).This addendum,which is approved.As of today,we have more five-point policy as a final addendum to also known as the five-point policy than 260 HCP permits covering more the HCP Handbook.The addendum guidance,is printed entirely within this than twenty million acres of land, supplements the HCP Handbook and No notice.Like the HCP Handbook,theproviding conservation for Surprises final rule and will be applied �� addendum provides clarifying guidance approximately 200 listed species. More within the context of the existing statute for the Services in conducting the than 200 HCPs are under some stage of and regulations.This final addendum is incidental take permit program and for development.The HCP process provides considered agency policy,and the those applying for an incidental take an opportunity to develop strong Services are fully committed to its permit under section 10(a)(1)(B)of the partnerships with local governments implementation.The concepts and Endangered Species Act(ESA).This and theprivate sector. guidance willpromote efficiencyand definitions of terms used in the Based on the Services'experience in addendum are found in the ESA, nationwide consistency within and developing HCPs and lessons learned implementing regulations,and HCP between the Services and improve the since 1983,the Services developed Handbook.Further information about Habitat Conservation Planning program. comprehensive guidance on conducting HCPs may be obtained from the FWS DATES:This policy is effective July 3, the incidental take permit program.This webpage at http://www.fws.gov/ 2000. guidance was developed into the HCP r9endspp/hcp/hcp.html. ADDRESSES:Chief,Division of Handbook,which was made available Endangered Species,U.S.Fish and for public review and comment on Summary of Comments Received Wildlife Service,4401 North Fairfax December 21,1994 (59 FR 65782).It was The Services received more than 200 Drive,Room 420,Arlington,Virginia issued in final form on December 2, letters of comment on the draft 22203 (facsimile 703/358-1735);or 1996 (61 FR 63854). addendum from individuals, Chief,Endangered Species Division, With the 1982 amendments,Congress envisioned and allowed the Federal conservation groups,trade associations, Office of Protected Resources,National local governments,Federal and State Marine Fisheries Service, 1315 East- government to provide regulatory assurances to non-Federal property agencies,businesses and corporations, West Highway,Silver Spring,Maryland 20910(facsimile 301/713-0376). owners through the section 10 and private organizations.Because most FOR incidental take permit process.We of these letters included similar NancyFURTHERINFORMATION Chief,Division CONTACT:f decided that a clearer policy associated comments(many were form letters)we Nancy Gloman,Che U.S. and with the permit regulations in 50 CFR grouped the comments according to Endangered SerSpecies,vice eU.S.Fishe 703/358—and 17.22, 17.32,and 222.307 regarding the issues.We further divided these issues Wildlife f e Si rvic 708/358-17351,hn _or assurances provided to landowners into two sets.The issues in the first set 2171Wanda facsimile Chief,Endangered Species entering into an HCP was needed.This deal with the policy as a whole and Division,National Marine Fisheries prompted us to develop the"No HCPs in general.The issues in the Service(telephone 301/713-1401Fisher, Surprises"policy,which was based on second set pertain to the individual facsimile 301/713-0376)at the above the 1982 Congressional Report language sections of the policy and are organized ell,,� addresses. and a decade of working with private accordingly.The following is a landowners during the development summary of the relevant comments and SUPPLEMENTARY INFORMATION: and implementation of HCPs.The the Services'responses. Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices 35243 General Five-Point Policy or HCP Issues HCP to recover listed species or on February 23, 1998(63 FR 8859).The contribute to the recovery objectives final rule codified into 50 CFR parts 17 Issue 1:Many commenters were outlined in a recoveryplan,but do not and 222 the nature of the assurances concerned that the policy would not be complied with unless it was regulatory intend to permit activities that preclude provided to incidental take permittees. in nature and,therefore,suggested recovery.This approach reflects the All permits issued after March 25, 1998, codifying the policy into regulation intent of the section 10(a)(1)(B) under section 10(a)(1)(B)of the ESA rather than issuing the addendum as incidental take permit process to receive No Surprises assurances as policy. provide for authorization of incidental specified in 50 CFR 17.22(b)(5), Response 1:We believe that take,not to mandate recovery.However, 17.32(b)(5),222.307(g),and 222.307(h). publishing the addendum as policy at the extent to which an HCP may This policy addendum does not alter the this time is appropriate,because,like contribute to recovery is an important assurances provided to permittees by the HCP Handbook itself,the addendum consideration in any HCP effort,and regulation. provides specific guidance for applicants should be encouraged to The No Surprises assurances apply implementation of the statute and develop HCPs that produce a net only to incidental take permits issued in ositive effect on a species.The accordance with the requirements of the regulations.The intent of the addendum P is to clarify the concepts identified in Services can use recovery goals to frame Services'regulations where the HCP is existing policy and regulations and the biological goals and objectives. properly implemented.The assurances ensure consistency in their use.The Recovery plans are also used as sources extend only to those species adequately Services will follow the guidance in the for possible minimization and covered by the HCP.The term"No HCP Handbook including this mitigation measures for the HCP. Surprises"refers to regulatory addendum. If a recovery plan is not available,we assurances,not biological assurances, Issue 2:Many commenters stated that must rely upon other available sources and applies only to the extent of HCPs should goals, of biological information to encourage mitigation required by the incidental The comments were incorporateprirecoveryarily rrrialng the development of HCPs that would aid take permit in response to unforeseen to biological goals of the HCP,but in a species'recovery.If a recovery plan circumstances or changed also the the incorporation of is available,the Services and applicants circumstances not provided for in the also requestedery intoeshould refer to it for information on HCP. Specifically,permittees,who are recmanagementogoals and adaptived . uncertainty associated with the species' properly implementing their HCP,will comments included the ring.Otherion of biology and/or its conservation in order not be required to provide additional to determine if an adaptive management conservation and mitigation measures minimum scientific standards for the strategy is necessary. involving the commitment of additional five points addressed in the addendum By defining what adaptive land,water or financial compensation or or for HCPs in general.Conversely,one management means for HCPs in the additional restrictions on the use of commenter stated that biological goals addendum,we established a standard land,water,or other natural resources and objectives should simply be that the for its use.An adaptive management without their consent. HCP"not appreciably reduce the strategy is used to address significant The No Surprises assurances likelihood of survival and recovery," uncertainty associated with a particular encourage contingency planning. which is one of the statutory criteria for HCP,but it is not practicable(or Changes in circumstances that can be permit issuance.Other suggested possible)to require that all adaptive reasonably anticipated during the methods of incorporating recovery into management strategies impose an implementation of an HCP can be HCPs include developing an overall elaborate experimental design. planned for in the HCP.Such HCPs strategy of recovery that includes HCPs, However,an adaptive management should describe the modifications in the or tying adaptive management back into strategy must be tied to the biological project or activity that will be the recovery goals of a species. goals and objectives of the HCP and implemented if these circumstances Response 2:The HCP program based on the best scientific information occur.Precisely because nature is so standards are contained within the available.We may also obtain strategies dynamic,planning for changed statutory and regulatory criteria.Two of to deal with the uncertainty from circumstances and adopting adaptive the statutory criteria for obtaining an recovery plans that can be incorporated management strategies within the HCP, incidental take permit are that the into an HCP's adaptive management permit,or IA,if used,will better serve proposed activity,along with the HCP, program. both the needs of permittees and does not appreciably reduce the Similarly,a monitoring program's endangered species conservation. likelihood of survival and recovery of standard for HCPs is based on the best Issue 4:Based largely on a study on the species,and that the HCP minimizes scientific information available,but an HCPs supported by the American and mitigates the impact of the taking to HCP's monitoring program also is scaled Institute of Biological Sciences and the maximum extent practicable.The to the particular HCP.The Services National Center for Ecological Analysis Services believe that guidance is should be aware of the types of and Synthesis,several commenters necessary for identifying biological monitoring programs that are ongoing in raised questions about biological goals and objectives that translate these order to coordinate efforts between uncertainty in decisions to issue statutory and regulatory criteria or HCPs.It may be more economical for incidental take permits. Some standards into meaningful biological smaller HCPs to participate in larger commenters requested a moratorium on measures,specific to a particular HCP monitoring programs by contributing to issuing 10(a)(1)(B)incidental take situation and in a manner that will or incorporating those programs. permits,stating that there is not enough facilitate monitoring. Issue 3:Many comments referred to known about the species to lock in long- The Services also agree that the the No Surprises policy,requesting term conservation actions provided by biological goals and objectives should either an increase or decrease in the HCPs and the assurances given with P.."N be consistent with recovery but in a amount of assurances associated with these permits.One commenter manner that is commensurate with the incidental take permits. specifically stated that incidental take scope of the HCP.Under section 10 of Response 3:The Services published permits should not be issued if there is the ESA,we do not explicitly require an the final rule on the No Surprises policy any uncertainty.Instead,efforts should 35244 Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices be spent on filling those data gaps lands,tribal trust resources,or the including HCPs that cover non-listed `� before issuing permits. exercise of American Indian tribal species,and we encourage applicants to Response 4:The Services believe that rights.The order does not require HCP include the State wildlife agencies covered species,both listed and applicants to include the tribes in actual during the development of their HCPs. unlisted,will be afforded more negotiations or require compensation for The addendum reflects this protection because of the conservation loss of Tribal resources. commitment. measures gained through the HCP Issue 7:One comment stated that the Issue 10:There were comments about process.Permitting incidental take that draft addendum did not adhere to the whether species would benefit more includes carefully constructed policy on the use of plain English in from habitat-based biological goals conservation actions will benefit most Government documents. versus goals specific to the number of covered species.Part of the careful Response 7:The final addendum is individuals or populations.Some construction of an HCP is incorporation written to incorporate the principles of suggested that habitat-based goals of contingency plans,whether it is plain English.However,most of the would be sufficient.Others stated that through planning for changed concepts within this addendum and there should only be species-based goals circumstances or developing and within the HCP Program are biological and that they should account for all life implementing an adaptive management or otherwise technical in nature. stages of that species and any natural strategy. Therefore,we must use certain fluctuations in population levels. A moratorium on incidental take terminology that is associated with Response 10:As discussed in the draft permits would not serve species or the those concepts. addendum,an appropriate HCP public well and would not be in Issue 8:One commenter suggested biological goal for a species will depend accordance with the ESA.Section that all five points addressed by the upon the particular species,the nature 10(a)(2)(B)of the ESA states that an addendum should be proportional to the of the impact,the nature of the incidental take permit that meets the scale of the HCP. conservation measures in the HCP,and issuance criteria shall be issued.The Response 8:The Services agree that to what extent the populations or other partnerships this program encourages application of each of the 5 points(i.e., ecological factors fluctuate.The are needed to promote endangered and the biological goals and objectives,an addendum states the following: threatened species conservation on non- adaptive management strategy,the Federal lands. monitoring program of an HCP,the The biological goals and objectives may be The Services appreciate the determination of the duration of an either habitat or species based.Habitat-based osuggestions provided in the study incidental take permit,and the scope of or quality of habitat to be achieved.Spes are exressed in terms of amount cies- / sponsored by the American Institute of public involvement)should be based goals are expressed in terms specific to Biological Sciences and the National commensurate with the scope of the individuals or populations of that species. Center for Ecological Analysis and HCP.Each individual section within the Complex multispecies or regional HCPs may Synthesis.Nevertheless,we believe,and addendum discusses the relationship use combination of habitat-and species- PI\ the study confirmed,that the HCPs between each of the five points and the specific goals and objectives.However, currently in place are based on the best scope of the HCP. according to 50 CFR 17.22,17.32,222.102, available scientific and commercial and 222.307,each covered species must be information.If we lack critical Biological Goals Issues addressed as if it were listed and named on information regarding the biological Issue 9:There were comments about the permit.Although the goals and objectives needs of a species proposed to be who should determine the biological may be stated in habitat terms,each covered and objectives of an HCP.One species that falls under that goal or objective covered under an HCP,we will not goals1 must be accounted for individually. issue the permit until such information commenter suggested that the person(s) is obtained or an acceptable adaptive with the most experience with the The Services chose to broadly define the management strategy is incorporated species should determine the biological application of biological goals and into the HCP to address the uncertainty. goals and objectives of an HCP. objectives,not only in terms of whether Issue 5:Some comments stated that Additional comments suggested that we they should be habitat-based or species- the addendum should allow citizen confer with State agencies in based,but also how the goals and suits to ensure that permittees are determining biological goals and objectives should be measured(e.g., properly implementing their HCPs. objectives.Another commenter stated numbers,life history stages,acres).This Response 5:The addendum does not that the Services should provide broad definition allows for flexibility in in any way alter the ability of citizens applicants assistance in developing the determining appropriate biological goals to bring lawsuits using the citizen suit biological goals and objectives. and objectives.The Services and provision of the ESA. Response 9:In addition to the applicants must determine the Issue 6:One commenter stated that applicants,the Services play an integral appropriate unit of measure such as the addendum should provide for role in determining the biological goals numbers of individuals at a particular compensation for loss of Tribal and objectives.We agree that species life stage,all lifestages,or quantity or resources due to implementation of experts should be consulted during quality of habitat for each individual HCPs. development of an HCP,including HCP.The Services and applicants Response 6:The Secretarial Order determining the biological goals and should also consult with appropriate regarding American Indian Tribal objectives.We have revised the experts to determine those goals(see Rights,Federal-Tribal Trust biological goals and objectives section to above discussion). Responsibilities,and the Endangered articulate the methods available for their Regardless of the type of goal used,at Species Act was issued on June 5, 1997, development.Service biologists some point,all HCPs must undergo a by the Secretaries of the Interior and of frequently confer informally with species by species analysis.If an HCP is Commerce pursuant to the ESA,the species experts or other specialty planned on a habitat basis,a species-by- Federal-Tribal trust relationship,and experts(e.g.,population modeling, species analysis must be made to r..'N other Federal law.This Order clarifies habitat assessment,restoration). determine if the HCP adequately covers the responsibilities of the Services when The Services also agree that State the species.The relationship of habitat ESA actions affect,or may affect,Indian agencies should be involved with HCPs, goals to specific species will help the Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices 35245 Services and applicant determine if a these commenters stated that under the Issue 13:One commenter stated that species is adequately covered by an "scientific definition"of adaptive all HCPs should contain adaptive HCP.Also,this consideration of management,true adaptive management management. individual species provides a safety net is impossible under No Surprises. Response 13:As stated in the for those species that may not neatly fit Response 12:The Services recognize addendum,the Services will into a purely habitat-based plan.For the use of the term within the scientific incorporate adaptive management example,populations of a narrow strategies when appropriate.Adaptive literature.However,the phrase endemic species that occur within a management is necessary for those plans wider ranging habitat type may not be "adaptive management"is used in "that would otherwise pose a significant adequately covered by an HCP that many other disciplines and contexts and risk to the species at the time the permit depends solely on amount of habitat has different meanings to different is issued due to significant data or conserved in a broad general area and People.The scientific definition information gaps."Not all HCPs warrant does not specify particular locations typically follows Holling(1978)and adaptive management,although any where the habitat for that species is Walters(1986) (see also Walters and HCP may incorporate an adaptive conserved. Holling,1990;McLain and Lee, 1996; management strategy if agreed upon by Issue 11:Some commenters addressed Walters 1997).This definition is the applicant and the Services. quantifying take within an HCP and described as a process that tackles the In addition,the ability for applicants during its implementation. Some stated uncertainty in management of natural and the Services to build contingency that quantifying take should not be resources through experimentation. measures into an HCP's operating required,and others stated that it Most frequently,this involves modeling conservation strategy does not depend should always be required. to determine a course of action for on- solely on the use of adaptive Response 11:Although identifying the the-ground implementation with management.For instance,the No amount or extent of take within an HCP monitoring to test the model's Surprises final rule provides for and the permit does not directly refer to predictions.Walters(1986)breaks down planning for changed circumstances. development of biological goals and categories of learning through This planning involves providing objectives,it is related and will be implementation as"active"and alternative actions for possible events addressed here.Section 10(a)(2)(A) "passive"adaptive management. that may alter the ability of an HCP to requires that an HCP specify the impact Passive adaptation is where information meet its biological goals and objectives. which will likely result from the take to obtained is used to determine a single An adaptive management strategy be permitted.Both Services require best course of action.Active adaptation would not be necessary if there were no applicants to include certain is developing and testing a range of significant uncertainty associated with information about the species to be alternative strategies(Walters and identifying appropriate responses to covered by an HCP.FWS permit Holling 1990).For the purposes of the potential changed circumstances. i"-•\ application criteria require HCP program,we are defining adaptive Issue 14:One commenter stated that identification of the number,age,and management as a method for examining adaptive management not only increases sex of such species,if known(50 CFR alternative strategies for meeting the complexity of an HCP(and, 17.22,17.32).NMFS application criteria measurable biological goals and therefore,the time and effort involved require a description of the anticipated objectives,and then,if necessary, in its development and impact,including amount,extent,and adjusting future conservation implementation),but the uncertainty type of anticipated taking(50 CFR management actions according to what poses an economic risk to permittees. 222.307).While evaluating an HCP,we is learned. Response 14:We agree that adaptive use the amount of incidental take as a management may increase the The Services are incorporating a complexity of an HCP.However, main indicator of the impact the com P Y broad perspective of adaptive adaptive management strategies should proposed project will likely have on the P g g management,with the key components be commensurate with the scope of the species.Identifying the amount of P that make an adaptive process in HCPs incidental take contributes to the HCP(e.g.,the smaller the scope or meaningful.These components include analysis of whether the proposedimpacts, complex the less com lex the HCP and incidental take permit will appreciably careful planning through identification any adaptive management if warranted). reduce the likelihood of survival and of uncertainty,incorporating a range of Additionally,all HCPs must meet alternatives,implementing a sufficient statutoryand regulatory issuance recovery of the species. g Y monitoring program to determine criteriaprior to approval and issuance There are situations where precisely success of the alternatives,and a PP quantifying the number of individuals of a permit.Adaptive management is feedback loop from the results of the one tool available to applicants and the that are anticipated to be taken is a less PP effective method than estimating the monitoring program that allows for Services that can be used to meet the amount or extent of take in terms of the change in the management strategies. issuance criteria.It is also a means for Because the Services and applicant increasingthe flexibilityof an HCP.A amount of habitat altered.What is most provide these elements upfront in the important is that we are able to assess results-oriented implementation the impact of the anticipated take on the HCP,they are consistent with No program lets a permittee apply a number Surprises. of different methods for achieving species.Regardless of how the a incidental take is quantified,it must be The addendum makes a distinction certain goal,rather than adhering to an indicated in the biological opinion the between adaptive management that inflexible list of prescriptions.A results- Services complete for the issuance of would have a more experimental oriented program actually provides the permit and on the permit itself. approach versus contingency planning some certainty to the permittee by for the implementation of measures in establishing a framework to modify the Adaptive Management Issues the event of changed circumstances operating conservation strategy.Results �..%, Issue 12:Many commenters raised the where there is little uncertainty.An are periodically assessed,and,if issue as to the correct definition,and, HCP can provide provisions for changed shortcomings are evident,previously therefore,correct application of circumstances that does not involve agreed-upon alternative strategies are adaptive management.Additionally, adaptive management. implemented,thereby streamlining 35246 Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices additional discussions between the particularly when the actual monitoring monitoring.However,the limited Services and permittee. actions may overlap.One way to resources available to the Services to i'''''N Setting the sideboards and structure distinguish between the two types is conduct monitoring necessitates our during development of the HCP that compliance monitoring verifies that reliance on the working relationships provides applicants certainty in the the permittee is carrying out the terms between us and the permittees to verify extent of requirements for implementing of the HCP,permit,and IA(if one is compliance.As discussed in the an adaptive management strategy.As used)while effects and effectiveness addendum,where appropriate,we may stated in the No Surprises final rule,we monitoring evaluates the biological conduct our own evaluation,including will not require a permittee to make effects of the permitted action and site visits.The Services should be able additional mitigation commitments, determines whether the effectiveness of to use the periodic reports made by including any adaptive management the operating conservation program of permittees as one method in provisions,beyond what was agreed to the HCP is consistent with the determining whether the permittee is in in the HCP,permit,and IA,if used. assumptions and predictions made compliance.Periodic reports may be our Issue 15:One commenter stated that when the HCP was developed and first source of information about the adaptive management should not approved.The permittee is primarily implementation of an HCP.From these replace good,up-front conservation responsible for ensuring that their HCP reports,we may catch discrepancies that measures. is working as planned and the Services alert us to possible implementation Response 15:The Services agree that are primarily responsible for monitoring problems.Also,the information adaptive management should not be whether the permittee is complying obtained to determine effects and used in place of developing good up- with permit requirements. effectiveness may be the same front conservation measures or to Issue 18:A few commenters suggested information needed to determine postpone addressing difficult issues. that the Services identify,in the compliance.We do not want to use However,adaptive management may be addendum,minimum qualifications for limited resources on duplicative necessary to craft a framework for personnel conducting monitoring. monitoring efforts. addressing uncertainty in the operating Response 18:The addendum does conservation program to ensure that the state that the personnel conducting the Permit Duration Issues measures fulfill the biological goals and monitoring should be qualified. Issue 21:One commenter suggested objectives of an HCP. However,the necessary qualifications that the Services link the duration of the Monitoring Issues depend upon what is being monitored. permit to recovery of the species Since HCPs are highly variable,the covered by an HCP. Issue 16:Several commenters stated addendum is flexible about the Response 21:We assume that this that the Services should establish minimum qualifications of personnel comment refers to linking duration of minimum standards or require scientific conducting the monitoring,and the the permit to completion of recovery standards for the monitoring program Services'staff will determine whether goals where HCPs have a"recovery /'''N within an HCP. the person or company conducting the standard."We discuss the relationship Response 16:The implementing monitoring is qualified. of the HCP program and recovery in the regulations for an HCP(50 CFR 17.22, Issue 19:One commenter suggested above responses. 17.32,and 222.307)require a the Services require all monitoring Issue 22:Some commenters stated monitoring component.The HCP programs to include population counts. that we should not place time limits on Handbook includes guidance on what Response 19:Population monitoring mitigation measures. the monitoring component of an HCP may not be appropriate for all HCPs. Response 22:This comment seems to should look like.However,we have The scope of any HCP monitoring reflect a misunderstanding regarding the refined that guidance and have program should be in proportion to the duration of an incidental take permit. incorporated it into the addendum.The scope of that HCP.If an HCP affects only Permit duration is the length of time Services agree that any methodology a portion of a population,the permittee during which the permittee has and techniques involved in biological should not be responsible for incidental take authorization.HCPs may aspects of monitoring should be based monitoring the entire population.In be designed such that mitigation on science.The addendum does state addition,it may or may not be measures are in effect for longer periods that"The monitoring program will be appropriate for a particular HCP to of time,including in perpetuity,than based on sound science.Standard include counting of populations or the time the incidental take permit is in survey or other previously-established individuals.The appropriate unit of effect. monitoring protocols should be used. measure in a monitoring program Although the specific methods used to depends upon the specific impacts and Public Participation Issues gather necessary data may differ operating conservation program within Issue 23:Many comments pertained depending on the species and habitat an HCP and the biological goals and to whether the Services or the applicant types,monitoring programs should use objectives of the HCP.The unit of decides who participates in the a multispecies approach when measure also depends on how the development of HCPs.Most commenters appropriate."Monitoring approaches species uses the habitat to be affected. stated that the applicant should not that are consistent with the Handbook However,the Services should decide who participates,and offered and addendum should be adequate for coordinate monitoring programs to alternatives including mandatory assessing whether the HCP is achieving obtain a larger picture of the status of a stakeholder or interested party its biological goals and objectives. population. participation,and leaving the decision Issue 17:Some commenters stated Issue 20:Some commenters suggested up to the Services. that it was difficult to distinguish that self-reporting should not be used as Response 23:The experience of the between compliance monitoring and a means to demonstrate that the Services shows that the more public effects and effectiveness monitoring. permittee is in compliance with the participation in the development phase P"`• Response 17:The Services recognize terms of an HCP. of an HCP,the more likely it will be that it may be difficult to distinguish Response 20:We are not limited to accepted by the public.However,we between the two types of monitoring self-reporting for compliance maintain that the inclusion of other Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices 35247 interested parties in the development of required to issue the permit within 30 policy,which was published in draft i"'` an HCP is ultimately the decision of the days. form on March 9, 1999,into the final applicant.The ESA and its Response 25:The addendum contains Handbook for Habitat Conservation implementing regulations do not changes to the existing HCP public Planning and Incidental Take Permitting mandate public participation before an comment period but does not change Process.This HCP Handbook addendum applicant submits a permit application; any public input required by the provides additional guidance on five only a public comment period after it is Council on Environmental Quality concepts that,although treated only submitted and published in the Federal regulations for implementing the briefly in the handbook,are in Register.We strongly encourage procedural provisions of NEPA(40 CFR widespread use in existing and applicants to include more public 1500-1508). developing HCPs.The main purpose of participation at all stages of The intent of the addendum is to this addendum is to provide a development. ensure the public has sufficient consistent approach to these concepts Issue 24:Some commenters suggested opportunity to review and provide that scientists should be involved in the comment on all HCPs,regardless of the for future HCPs.The five concepts development of HCPs.Another addressed in this addendum include P public review requirements of NEPA.To goals and adaptive commenter stated that all HCPs should accomplish this,the addendum lays out biologicalobjectives, P be subject to peer review. the various public review requirements management,monitoring,permit Response 24:During consideration of for HCPs with different levels of impact. duration,and public participation. whether to issue an incidental take For example,low-effect HCPs,which The HCP program and the associated permit,the Services are required to use are categorically excluded from the section 10 permits have been in place the best available scientific and NEPA process,will have a minimum 30- for approximately 17 years.The 1982 commercial information.Such data day public review and comment period. amendments to the ESA created a come from a variety of sources: The public review period for large, statutory framework for the HCP scientific literature and peer-reviewed complex HCPs is 90 days,unless there program that was built primarily around publications,in-house expertise,other is significant public involvement during four permit application criteria and four State or Federal agencies,academia,and development.All other HCPs (including permit issuance criteria.We non-governmental organizations,to large complex HCPs with significant promulgated regulations in 1985 in name a few. For listed species,the public involvement)will be made order to implement the Congressionally Services can draw upon a number of available for review and comment for a created HCP program.The statutory and existing information sources,all of minimum of 60 days. regulatory framework for HCPs has which have gone through peer and The addendum contains target time remained unchanged since it was first public review.ESA listing packages are frames for us to process an incidental put into place.The five concepts used to gain further species-specific take permit application.The target addressed in this addendum are an ,-.., biological information,and where processing time frame for an HCP that possible,the Services will draw upon outgrowth of the statute and regulations. includes an Environmental Impact This addendum does not create these recovery plans to identify conservation Statement(EIS)is up to one year, and monitoring measures and objectives including the 90 day comment period concepts,nor does it change the current for listed species.The addendum (or 60 days if significant public regulations or general application of the in is encourages applicants to use scientific concepts practice. advisorycommittees duringthe participation has occurred).However, we cannot issue a permit until we have In order to analyze the economic development and implementation of an determined that it meets the issuance effect of this addendum,we reviewed HCP,especially large-scale ones. criteria under section 10(a)(2)(B)of the the potential of this policy to have an The applicant's integration of a ESA.Because of the complexity effect on HCPs in three different areas: scientific advisory committee and associated with an HCP that has an EIS, the cost of HCP development,the cost perhaps other stakeholders improves the we need the target processing time of HCP minimization and mitigation, development and implementation of frame of one year to determine whether and The cost of HCP implementation. any adaptive management strategy. to issue the permit.One method to Past and current experience with the Advisory committees can assist the reduce the amount of time needed to HCP program leads us to predict that we Services and applicants in identifying process a permit application is for an will complete and approve key components of uncertainty and applicant to include up-front public approximately 35 new HCPs each year determine alternative strategies for participation during HCP development. into the foreseeable future.We expect addressing that uncertainty.We also that the size and complexity of the encourage the use of peer-review for an Required Determinations expected 35 HCPs per year will HCP.An applicant,with guidance from Regulatory Planning and Review, continue to vary from the extremely the Services,may seek independent Regulatory Flexibility Act,and Small small,single-species HCP to multi- scientific review of specific sections of Business Regulatory Enforcement species HCPs covering more than a an HCP and its operating conservation Fairness Act million-acre planning area(see Table 1). strategy to ensure the use of the best scientific information for HCP This final policy was subject to Office Based on past and current experience, development. of Management and Budget(OMB) we predict that 20 of the expected 35 Issue 25:One commenter requested review under Executive Order 12866. HCPs per year will be relatively small that the public comment period under a.This policy will not have an annual and simple HCPs covering one or a few the National Environmental Policy Act economic effect of$100 million or listed species(of which 8 may be (NEPA)for HCPs not be extended. adversely affect an economic sector, deemed"low effect").The HCPs of I Another comment suggested that the productivity,jobs,the environment,or medium size and complexity are /'"'N, Services process incidental take permits other units of government.A cost- expected to account for another 12 of with Environmental Impact Statements benefit and economic analysis is not the 35 HCPs,and the remaining three within nine months,and,if that required.The primary purpose of the HCPs are expected to be large,complex deadline is not met,we would be addendum is to incorporate the 5-point HCPs. 35248 Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices TABLE 1.—SIZE DISTRIBUTION OF measures* * * and the acquisition and The concept of adaptive management HCPS ACCORDING TO PLANNING dedication of preserve lands for the has been both broadly and narrowly AREA, AS OF DECEMBER 31, 1999 warbler adjacent to an existing habitat defined by the disciplines that use the [Some plans have both short-term and long- preserve and within the same warbler concept.We are embracing a somewhat term HCPs, where the total amount of area recovery unit as the proposed broad definition of the term as addressed in the short-term HCP is included development." [Environmental supported by the scientific literature, within the total area of the subsequent long- Assessment and Habitat Conservation and one of the reasons for additional term HCP. Therefore, the numbers of HCPs Plan,Issuance of an Endangered policy guidance on this concept is to accounted for above will not total the num- Species Section 10(a)Permit for the explain our application of the concept HCPsber owereHens thanot havelubeen issued. Ay few Incidental Take ofthe Golden-cheeked of adaptive management compared to not included in this tally be- P g P cause they addressed the planning areas in Warbler(Dendroica chrysoparia)during the narrower definition favored in some linear miles instead of acres.] construction and Operation of the academic circles. Approximate 24-acre Single Family Adaptive management has been Size of HCPs Number Residential Development, Canyon widely used in the HCP program from of HCPs Ridge,Phase A,Section 3,Austin, the very beginning.The first HCP,San Less than 1 acre 44 Travis County, Texas,December, 1994]. Bruno Mountain,utilized the concept, Between 1-10 acres 64 The second issuance criterion in stating:"notwithstanding the Between 10-100 acres 56 section 10 of the ESA requires a finding considerable knowledge gained through Between 100-500 acres 37 that the applicant"will,to the the biological study,the Habitat Between 500-1,000 acres 11 maximum extent practicable,minimize Conservation Plan,in concept and in Between 1,000-10,000 acres 17 and mitigate the impacts. * * *"This implementation,is novel and in many Between 10,000-100,000 acres 14 criterion inherently requires a ways,experimental.There are many Between 100,000-500,000 acres 10 discussion of the minimization and biological uncertainties which Between 500,000-1,000,000 mitigation efforts and their relationshipinescapably remain at the outset of such acres 4 g P Y Greater than 1,000,000 acres 2 to the project impact and the desired an ambitious undertaking which can outcome of the HCP.We believe that the only be resolved through an ongoing The Effect of Additional Policy decision documents examining this program of applied research designed Guidance on Biological Goals and criterion are of higher quality when specifically to direct Plan Objectives biological goals and objectives are made implementation." [San Bruno Mountain This emphasizes the explicit.This addendum is directed Area Habitat Conservation Plan,Final benefit his addendumf l y articulating why the towards agency personnel and does not 1991,emphasis in original]. Since the minimizationxand mitigationreffortsh in seek to alter the permit application San Bruno plan,many HCPs,especially are being what criteria or otherwise require anything the larger and more complex HCPs,have anthey HCP expected to provided and The new of permit applicants.We already utilized adaptive management concepts p•� thrustey are eothis concept cis omplihat encourage HCP applicants to provide an in one form or another.Examples aimedhave theexplicit discussion of biological goals include the Washington County HCP in HCP preparation believe it phase.We any noeffect and objectives,but this addendum will Utah and the Plum Creek Timber reason to minimization have and not mandate such a discussion in the Company I-90 Corridor HCP in on an HC soon HCP implementation.dHCP.Instead,this addendum will Washington.Arguably some of the miFrom the very the HCP ensure that the agency decision measures in these HCPs that can be program, bbeginningand documents that analyze the HCP contain categorized as adaptive management have beenm, ibincorporated goalsod iato objectivese, an explicit discussion of biological goals were included in an attempt to meet and objectives. regulatory requirements concerning sometimes in an explicit manner and in We do not expect that policy guidance unforeseen and changed circumstances. other cases in an implicit manner.For requiring an explicit articulation of The section 10 regulations require that example,in the first HCP,which was biological goals and objectives that permit applicants develop procedures to used by Congress as a model for the already exist in some form in the HCP address unforeseen circumstances(50 1982 amendments to the ESA,the HCP will require any significant additional CFR 17.22(b)(1)(iii)(B), 17.32(b)(1)(iii)(B) states that the"purpose of the[HCP] is time or effort.The incorporation of this for FWS and 50 CFR 222.307(g)for to provide for the indefinite addendum into the handbook reflects NMFS)and make the existence of these perpetuation of the Mission Blue and support for existing practice more than procedures a precondition to permit Callippe Silverspot butterflies on San it does a new policy development.As issuance.See 50 CFR 17.22(b)(2)(iii)and Bruno Mountain,as well as to conserve such,and given the relative ease of 17.32(b)(2)(iii)for FWS and 50 CFR * * *the value * * * as a remnant explaining the goals of conservation 222.307(g)for NMFS.The No Surprises ecosystem. * * * The more pervasive measures,we believe that this policy rulemaking expanded on the goal is to simultaneously provide for the will have little to no economic effect on contingency planning aspects of the perpetuation and enhancement of the small entities or any other entity.In HCP program by requiring contingency grassland habitat which supports the addition,we have determined that planning for changed circumstances that butterflies, * * * The focus of providing a numerical or quantitative are foreseeable[See 63 FR 8859 preservation is on the grassland because description of this deminimus effect is (February 23,1998)].This addendum on this is thought* * *to be the ancestral not practical and we have,therefore, adaptive management does not mandate native habitat. * * *" [San Bruno provided a narrative analysis instead. the contingency planning identified Mountain Area Habitat Conservation above,even if some of the procedures Plan,Final 1991].A more recent The Effect of Additional Policy adopted fall under the heading of example from an HCP developed in Guidance on Adaptive Management P P adaptive management. Texas states"the main goal of the HCP The HCP Handbook already provides The addendum states that adaptive P'""\is to * * * minimize and mitigate the policy guidance on adaptive management will be used for HCPs that impacts. * * *This main goal is management,and thus this addendum are faced with significant data gaps.We achieved by onsite conservation merely provides additional refinement. believe that an HCP that fails to address Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices 35249 significant data gaps will not meet the Handbook did not provide any We have,therefore,determined that this ••''\ issuance criteria of the ESA.It is, treatment of the issue of permit addendum will not alter the current therefore,not the addendum itself that duration.This addendum would add a practice with regard to the length of mandates the use of adaptive short provision to the Handbook that public comment periods and large management in cases of significant data essentially repeats verbatim the HCPs.Based on this determination,we gaps,but is instead the applicant's need regulatory language on permit duration. conclude that this policy guidance on to overcome data gaps and still meet the Even though the addendum does not public participation will not have an permit issuance criteria established in expand on the regulations'treatment of economic effect. the ESA.Current practice on the ground permit duration,we believe that the Of the remaining twenty-four is to rely on adaptive management to Handbook should provide coverage of expected HCPs per year,we expect at overcome data gaps.This addendum all aspects of the program and it will least four of those HCPs would have provides policy support for this existing thus be beneficial to include this longer than the minimum public practice,but does not change the status provision in the Handbook.The policy comment period because of reasonable quo.We,therefore,determine that the guidance on permit duration will not public requests for extensions.There addendum's coverage of adaptive affect the current approach to are,therefore,twenty HCPs per year that management will not effect small determining permit duration and will, could potentially be effected by the entities to any measurable degree. therefore,not have any effect. policy guidance on public participation. The Effect of Additional Policy The Effect of Additional Policy Of these twenty HCPs,only a small number are expected to actually have all Guidance on HCP Monitoring Guidance on Public Participation local approvals in hand and be ready to This addendum does not impose any In the area of public participation, proceed before the conclusion of HCP new monitoring requirements. this addendum signals a departure from processing,including the public Monitoring is already required by the the current practice in the Handbook by comment period.Unless an HCP section 10 regulations.In the preamble increasing the length of the public applicant is otherwise ready to begin to the final rule promulgating the comment period for many HCPs by project implementation,we do not section 10 regulations,we agreed with thirty days.The ESA requires a believe an additional thirty days of a commenter that the Service should minimum of a thirty day public public comment will have any monitor the implementation of a comment period,but does not prohibit economic effect.For the small number conservation plan and accordingly longer public comment periods.This of HCPs that may be waiting for the HCP finalized revisions to sections addendum provides that"low effect" process to be completed,the economic 17.22(b)(1)(iii)(B), 17.22(b)(3), HCPs will,as a general matter,continue effect of a thirty day extension to the 17.32(b)(1)(iii)(B)and 17.32(b)(3)to to be provided to the public for a thirty process will depend tremendously on require that conservation plans specify day comment period.The addendum the scale and type of project.In ,---\ the monitoring measures to be used and thus does not change the current addition,many projects will be able to to authorize imposition of necessary approach for low effect HCPs,which we proceed in part prior to permit issuance, monitoring as a condition of each expect will comprise eight of the providing there is no incidental take of permit."50 FR 39681, 39684 predicted thirty-five new HCPs per year. species or a preclusion of the (September 30, 1985).NMFS also The addendum indicates most other development of reasonable and prudent included a monitoring requirement in HCPs will be provided to the public for alternatives.See 16 U.S.C. 1536(d).HCP their section 10 regulations(50 CFR 307 a sixty day comment period.Finally the applicants will be fully aware of the (d)). addendum states that large,complex addendum's public participation time This addendum seeks to refine HCPs will need to have a ninety day lines and will,therefore,be able to existing monitoring policy by organizing public comment period unless the factor the additional public comment the types of monitoring being conducted applicant has taken steps to involve the period into their HCP planning early. into categories,including compliance public earlier in the HCP process,in This early recognition of the time lines monitoring,effect monitoring,and which case the HCP will qualify for the may prove beneficial compared to effectiveness monitoring.The sixty day comment period. planning on a thirty day comment addendum also seeks greater This policy guidance on public period only to find near the end of that compatibility of monitoring data across participation has the potential to affect period that the Services has decided HCPs.Neither of these policy additions twenty-seven HCPs per year.The large, sound grounds exist for an extension. is expected to have any economic complex HCPs,predicted to account for Based on this narrative analysis,we impact.Current practice entails the HCP three of the new HCPs per year,have conclude that an increase in public applicant and the Services working historically been associated with comment periods will have a negligible together to arrive at a monitoring extensive public notice and economic effect. program that,based on the specifics of involvement,often through the EIS In summary,the 5 Point HCP the HCP and the species involved,is process under NEPA.This type of addendum provides recognition and robust enough to provide the public involvement would qualify these policy support for existing practices in information the parties feel will be HCPs for the sixty day comment period. each of the five concept areas discussed needed.This addendum does not alter The parallel NEPA process will above.The addendum does not change current practice and instead reiterates typically require significant comment the current statutory or regulatory the regulatory requirement and provides time periods,often matching or framework and merely provides policy recognition and support for the exceeding the time periods established refinements to existing policy.As a current practice. by this addendum.We have also result,the addendum will not have a observed that the large HCPs of the past significant economic effect. The Effect of Policy Guidance on Permit were noticed for more than the b.This addendum will not create Duration minimum thirty days required by inconsistencies with other agencies' t"-4. The section 10 regulations provide section 10 simply because of their size actions.The addendum to the HCP factors that the Director should consider and complexity and in response to Handbook does change the existing in determining permit duration.The requests for extensions from the public. requirements for a HCP.The addendum 35250 Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices is intended to assist Government include habitat conservation plans.The National Environmental Policy Act employees and as such may also assist HCPs and permits generally are The Department of the Interior has /''` the public.The only change to the HCP coordinated with appropriate State and determined that the issuance of the Handbook included in the addendum is local governments to include their policy is categorically excluded under to provide adequate time for public views on the activities covered by the the Department's National comment when developing HCPs. permit(in many cases,the activities also Environmental Policy Act procedures in c.This policy will not materially require State or local government 516 DM 2,Appendix 1.10.The National affect entitlements,grants,user fees, authorization).In some instances,the Oceanic and Atmospheric loan programs,or the rights and applicant is the local government Administration(NOAA)has determined obligations of their recipients.The seeking incidental take permits for that the issuance of this guidance addendum to the HCP Handbook was activities planned and conducted within qualifies for a categorical exclusion as developed solely to provide consistency its area of jurisdiction.The addendum defined by the NOAA 216-6 to the HCP program and is intended as does not change this process by Administrative Order,Environmental guidance for the Government. encouraging applicants to coordinate Review Procedure. d.This policy will not raise novel with State agencies.As with all other legal or policy issues.The addendum to Section 7 Consultation the HCP Handbook was develo ed to applications,this addendum will not p have an effect on small governments. The Services do not need to complete provide clarification for the HCP a section 7 consultation on this final process and does not change regulations b.This policy will not produce a policy.An intra Service consultation is or significantly change existing policy. Federal mandate of$100 million or completed prior to issuing incidental The Departments of Interior and greater in any year,i.e.,it is not a take permits under 10(a)(1)(B) of the Commerce certify that this policy will "significant regulatory action"under Endangered Species Act associated with not have a significant economic effect the Unfunded Mandates Reform Act. individual HCPs. on a substantial number of small entities See discussion in the section titled as defined under the Regulatory "Regulatory Planning and Review, Authority Flexibility Act(5 U.S.C.601 et seq.). Regulatory Flexibility Act,and Small The authority for this action is the There are more than 248 existing HCPs Business Regulatory Enforcement Endangered Species Act of 1973,as of which 106 are for small entities and Fairness Act." amended(16 U.S.C. 1531 et seq.). 142 are for corporations or other large Takings Implication Assessment Addendum to The HCP Handbook entities.The addendum does not change the ability of small entities to develop In accordance with Executive Order The five sections(or five-points) of HCPs in the future.The Services expect 12630,the policy does not have the final addendum are contained small entities will have the same significant takings implications.A entirely within this notice.The Services proportion of future HCPs. takings implication assessment is not will adhere to the guidance provided in 1'\ This policy is not a major rule under required.The addendum guides the addendum.Nothing in this guidance 5 U.S.C. 804(2),the Small Business employees in the evaluation and is intended to supersede or alter any Regulatory Enforcement Fairness Act. approval of applications for incidental aspect of Federal law or regulation This policy: take permits under existing law, pertaining to the conservation of 1.Does not have an annual effect on threatened or endangered species. the economy of$100 million or more. Federalism Assessment 2.Will not cause a major increase in Biological Goals And Objectives costs or prices for consumers, In accordance with Executive Order What Are an HCP's Biological Goals and individual industries,Federal,State,or 13132,the policy does not have Objectives? local government agencies,or sufficient Federalism implications to geographic regions. warrant preparation of a Federalism HCPs have always been designed to 3.Does not have significant adverse assessment.This addendum does not achieve a biological purpose,yet they effects on competition,employment, change the relationship between the may not have specifically stated those investment,productivity,innovation,or Services and applicants,nor does it alter biological goals.In the future,the the ability of U.S.-based enterprises to the Services'relationship with State and Services and HCP applicants will compete with foreign-based enterprises. local governments within the HCP clearly and consistently define the The purpose of the addendum is to Program. expected outcome,i.e.,biological provide Federal employees the guidance goal(s).This rather simple concept will required for the consistent application Civil Justice Reform facilitate communication among the of the Handbook for developing HCPs. In accordance with Executive Order scientific community,the agencies,and The addendum will provide some the applicants by providing direction for simplification to the HCP Program due 12988,the Office of the Solicitor has the development of HCPs. determined that the policy does not The HCP Handbook discusses to clarification of processes. unduly burden the judicial system and Unfunded Mandates Reform Act meets the requirements of sections 3(a) identifyingbjecisbiological goals and and 3(b)(2)of the Order, objectives(Chapter 3). Since biological In accordance with the Unfunded goals and objectives are inherent to the Mandates Reform Act(2 U.S.C. 1501 et Paperwork Reduction Act. HCP process,HCPs have had implied seq.): biological goals and objectives,and a.This addendum will not This addendum does not require an many recent HCPs include explicit "significantly or uniquely"affect small information collection under the biological goals or objectives.Explicit governments.A Small Government Paperwork Reduction Act.A related biological goals and objectives clarify Agency Plan is not required.The HCP information collection associated with the purpose and direction of an HCP's /".'\ Handbook provides guidance to Federal incidental take permits is covered by operating conservation program.They employees involved in reviewing and existing OMB approvals (#1018-0094 create parameters and benchmarks for approving incidental take permits that for FWS#0648-0230 for NMFS). developing conservation measures, Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices 35251 ,.,-.. provide the rationale behind the HCP's known information of the species, objectives.However,according to 50 terms and conditions,promote an estimating the anticipated effects to the CFR 17.22, 17.32,222.102,and 222.307, effective monitoring program,and, species,and stating any assumptions each covered species must be addressed where appropriate,help determine the made.If the operating conservation as if it were listed and named on the focus of an adaptive management program is relatively complex,the permit.Although the goals and strategy. biological goal is divided into objectives may be stated in habitat What Are Biological Goals and manageable and measurable objectives. terms,each covered species that falls Objectives in HCPs? Biological objectives are the different under that goal or objective must be components needed to achieve the accounted for individually as it relates In the context of HCPs,biological biological goal such as preserving to that habitat. goals are the broad,guiding principles sufficient habitat,managing the habitat for the operating conservation program to meet certain criteria,or ensuring the Are Permittees Required To Achieve the of the HCP.They are the rationale persistence of a specific minimum Biological Goals and Objectives of the behind the minimization and mitigation number of individuals.The specifics of HCP? strategies.For more complex HCPs, the operating conservation program are How the biological goals fit with the biological objectives can be used to step the actions anticipated to obtain the implementation of an HCP may be down the biological goals into biological objectives;therefore,we can framed as a series of prescriptive manageable,and,therefore,more use these objectives to strengthen the measures to be carried out(a understandable units.Multiple species initial operating conservation program. prescription-based HCP)or the ability to HCPs may categorize goals by species or Elzinga et al. (1998)provide guidance use any number of measures that by habitat,depending on the structure for developing measurable objectives for achieve certain results(a results-based of the operating conservation program. rare plant monitoring that can be used HCP).A prescription-based HCP HCPs that are smaller in scope would for other species.Biological objectives outlines a series of tasks that are have simpler biological goals that may should include the following:species or designed to meet the biological goals not need to be stepped down into habitat indicator,location,action, and objectives.This type of HCP may be objectives.It should be noted that the quantity/state,and timeframe needed to most appropriate for smaller permits biological goals of an individual HCP meet the objective.They can be where the permittee would not have an are not necessarily equivalent to the described as a condition to be met or as ongoing management responsibility.A range-wide recovery goals and a change to be achieved relative to the results-based HCP has flexibility in its conservation of the species.However,if existing condition.Biological objectives management so that the permittee may viewed collectively,the biological goals may be addressed in parallel. institute the actions that are necessary and objectives of HCPs covering the Conversely,achieving the biological as long as they achieve the intended same species should support the objectives may need to occur in result(i.e.,the biological goals and recovery goals and conservation. sequence.For instance,parallel objectives),especially if they have a The biological goals and objectives of objectives may be(1)maintaining the long-term commitment to the an HCP are commensurate with the preserve site free of nonnative weeds conservation program of the HCP.HCPs specific impacts and duration of the and(2)enhancing the population from can also be a mix of the two strategies. applicant's proposed action.For 4 individuals to 7 individuals. The Services and the applicant should example,low-effect HCPs generally Sequential objectives may be(1) determine the range of acceptable and have simple measurable biological restoring of an area of habitat and then anticipated management adjustments goals,such as contributing to a regional (2)reintroducing the species. preserve design through a mitigation The Services and applicants have necessary to respond to new bank or avoiding breeding habitat of a many resources to draw upon when information.This process will enable particular species. determining the biological goals and the applicant to assess the potential objectives of an HCP.Both can use the economic impacts of adjustments before How Do I Incorporate Biological Goals available literature,State conservation agreeing to the HCP while allowing for and Ojectives Into an HCP? strategies,candidate conservation plans, flexibility in the implementation of the Determination of the biological goals draft or final recovery plans or outlines, HCP in order to meet the biological and objectives is integral to the and other sources of relevant scientific goals. development of the operating and commercial information as guides Regardless of the type of goals and conservation program.Conservation in setting biological goals and objectives used and how they fit within measures identified in an HCP,its objectives.Both can consult with implementation of the HCP,the Services accompanying incidental take permit, species experts,State wildlife agencies, will ensure that the biological goals are and/or IA,if used,provide the means recovery teams,and/or scientific consistent with conservation actions for achieving the biological goals and advisory committees. needed to adequately minimize and objectives.We will work with the mitigate impacts to the covered species What Is the Difference Between a to the maximum extent practicable. applicant to develop the biological goals and objectives by examining the Habitat-Based Goal and a Species Based Whether the HCP is based on Goal? applicant's proposed action and the prescriptions,results,or both,the overall conservation needs of the The biological goals and objectives permittee's obligation for meeting the covered species and/or its habitat. may be either habitat or species based. biological goals and objectives is proper The biological goals and objectives are Habitat-based goals are expressed in implementation of the operating refined as the operating conservation terms of amount and/or quality of conservation program of the HCP.In program takes shape.Initial biological habitat.Species-based goals are other words,under the No Surprises goals and objectives of an HCP begin by expressed in terms specific to assurances,a permittee is required only /'\ articulating the rationale behind the individuals or populations of that to implement the HCP,IA,if used,and operating conservation program.The species.Complex multispecies or terms and conditions of the permit. Services and applicant improve the regional HCPs may use a combination of Implementation may include provisions initial biological goals by compiling the habitat-and species-specific goals and for ongoing changes in actions in order 35252 Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices to achieve results or due to results from involved approaches to adaptive number of alternative strategies that P..,N an adaptive management strategy. management are appropriate for large- may be tested.A practical adaptive Adaptive Management scale HCPs.However,an active management strategy within the approach may pose too much of a risk operating conservation program of a What Is Adaptive Management? to the species;therefore,a more passive long-term incidental take permit will Adaptive management is an integrated approach may be the best course of include milestones that are reviewed at method for addressing uncertainty in action.An active approach may also be scheduled intervals during the lifetime natural resource management(Holling too cumbersome for the scope of the of the incidental take permit and 1978,Walters 1986,Gundersen 1999).It HCP and,therefore,a passive approach permitted action.If a relatively high may be more appropriate. degree of risk exists,milestones and also refers to a structured process for learning by doing.The concept is used Despite the potential obstacles to adjustments may need to occur early in a number of different contexts, incorporating a comprehensive adaptive and often. management strategy in an HCP,the Adaptive management should not be including the social science aspects of learning and change in natural resource Services incorporate adaptive a catchall for every uncertainty or a management.The term adaptive management strategies when means to address issues that could not management was adopted by Holling appropriate.We believe it is important be resolved during negotiations of the (1978)for natural resource management, that small-to medium-sized HCPs HCP.There may be some circumstances who described adaptive management as incorporate the flexibility to change with such a high degree of uncertainty an interactive process that not only implementation strategies after permit and potential significant effects that a reduces,but benefits uncertainty, issuance.The HCP Program is flexible species should not receive coverage in reduces, but Walters(from,u breaks enough to develop adaptive an incidental take permit at all until Adown categorieslly, of (198 breaksugh management strategies that will additional research is conducted. implementation as"active"and facilitate and improve the decision What Are the Elements of an Adaptive "passive"adaptive management. making process for the operating Management Strategy in HCPs? Passive adaptation is where information conservation program of a given HCP as obtained is used to determine a single well as provide for informative In an HCP,adaptive management g decision-making. strategies can assist the Services and the best course of action.Active adaptation applicant in developing an adequate is developing and testing a range of When Should Adaptive Management Be operating conservation program and alternative strategies(Walters and Incorporated Into an HCP? improving its effectiveness.An adaptive Holling 1990).The Services believe that The Services will consider adaptive management strategy should(1)identify both of these types of adaptive management as a tool to address the uncertainty and the questions that management are appropriate to consider uncertainty in the conservation of a need to be addressed to resolve the when developing a strategy to address species covered by an HCP.Whenever uncertainty;(2)develop alternative r"\ uncertainty.Therefore,we are defining an adaptive management strategy is strategies and determine which adaptive management broadly as a used,the approved HCP must outline experimental strategies to implement; method for examining alternative the agreed-upon future changes to the (3)integrate a monitoring program that strategies for meeting measurable operating conservation program.Not all is able to detect the necessary biological goals and objectives,and HCPs or all species covered in an information for strategy evaluation;and then,if necessary,adjusting future incidental take permit need an adaptive (4)incorporate feedback loops that link conservation management actions management strategy.However,an implementation and monitoring to a according to what is learned. adaptive management strategy is decision-making process(which may be Implementation of adaptive strategies essential for HCPs that would otherwise similar to a dispute-resolution process) has been criticized for failing to resolve pose a significant risk to the species at that result in appropriate changes in uncertainty or effectively implementing the time the permit is issued due to management.If you are developing good experimental design(Walters significant data or information gaps. adaptive management strategies,we 1997;Lee 1999).These failures are Possible significant data gaps that may encourage you to review the scientific typically attributed to agency or require an adaptive management literature that discusses adaptive stakeholder unwillingness to accept the strategy include,but are not limited to, management(for a starting point see risk involved in experimentation.The a significant lack of specific information literature cited at the end of the Services do have certain constraints in about the ecology of the species or its addendum). the HCP Program that may inhibit habitat(e.g.,food preferences,relative Identifying the uncertainty to be experimental design.For instance, importance of predators,territory size), addressed is the foundation of the stakeholder involvement in the uncertainty in the effectiveness of adaptive management strategy.Other development of many HCPs,including habitat or species management components include a description of the the adaptive management design,is techniques,or lack of knowledge on the goal of the operating conservation largely at the discretion of the applicant. degree of potential effects of the activity program(i.e.,the biological goals and Another restriction we face on the species covered in the incidental objectives of the HCP)and the collectively(Services,applicants,other take permit. identification of the parameters that stakeholders)is the possible risks to Often,a direct relationship exists potentially affect that goal.This requires species that may arise with using an between the level of biological communication between the applicant experimental design.Many adaptive uncertainty for a covered species and and the Services to identify expectations management processes with public/ the degree of risk that an incidental take for the adaptive management strategy stakeholder involvement address large- permit could pose for that species. and may also involve assistance from scale management issues(e.g.,Florida Therefore,the operating conservation scientists.After this step,we(the Everglades,Grand Canyon).This type of program may need to be relatively Services,applicants,and any other /".\ process is complicated and involved, cautious initially and adjusted later participants)will develop the range of but appropriate for the scale of the based on new information,even though possible"experimental"strategies issue. Similarly,more active and a cautious approach may limit the which may involve some type of Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices 35253 r"-^Nmodeling(which can be as simple as a adaptive management.The No Surprises Monitoring written description of the expected final rule lays a foundation for What Is Monitoring in the HCP outcomes or as complex as a contingency planning in HCPs that may Program? mathematical model demonstrating or may not include adaptive expected outcomes)of the resource in management.This contingency Monitoring is a mandatory element of question.If modeling is involved,we planning is addressed largely under the all HCPs(See 50 CFR 17.22,17.32,and must clearly articulate the assumptions topic of"changed circumstances." 222.307).When properly designed and and limitations of the model used.Many Changed circumstances are implemented,monitoring programs for factors may influence the type of circumstances that can be reasonably HCPs should provide the information alternatives to explore,including,but anticipated,and the HCP can necessary to assess compliance and not limited to,economics,policies and incorporate measures to be project impacts,and verify progress regulations,and amount of risk to the implemented if the circumstances toward the biological goals and species.This stage may be an occur.The permittee or another objectives.Monitoring also provides the appropriate time to involve other responsible party may need the scientific data necessary to evaluate the stakeholders to help identify the flexibility provided by the"changed success of the HCP's operating alternative strategies. circumstances"regulation to employ conservation programs with respect to Next,a monitoring program needs to alternative methods or strategies within the possible use of those strategies in be designed that will adequately detect the operating conservation program to future HCPs or other programs that the results of the adaptive management achieve the biological goals and contribute to the conservation of species strategy.Integration of the HCP's objectives.This flexibility also allows and their habitat.The HCP Handbook monitoring program into the adaptive previously agreed upon management already provides guidance for management strategy is essential.The and/or mitigation actions to be developing monitoring measures monitoring program plays an essential implemented or discontinued,as (Chapter 3,section B.4.)and discusses role of determining whether the chosen needed,in response to changed reporting requirements(Chapter 6, strategy(ies)is providing the desired circumstances.These actions are not section E.4.).The following information outcome(i.e.,achieving the biological necessarily adaptive management and further clarifies and provides additional goals of the HCP).If a scientific advisory may be a process for implementing guidance for the monitoring component committee is being used,this may be an change to the operating program or of an HCP,permit,or IA. appropriate item for their review.An simply a different conservation What Are the Types of Monitoring That applicant may also submit a monitoring measure.The HCP,incidental take Can Be Incorporated Into HCPs? program for independent peer review. permit,and IA,if any,must describe the Finally,an adaptive management agreed upon range of management and/ The Services and the applicant must strategy must define the feedback or mitigation actions and the process by ensure that the monitoring program of /-` process that will be used to ensure that which the management and funding an HCP provides information to: (1) the new information gained from the decisions are made and implemented. Evaluate compliance;(2)determine if monitoring program results in effective biological goals and objectives are being How Can an HCP Use Adaptive met;and(3)provide feedback change in management of the resource. Management Without a Large and information for an adaptive How Does Adaptive Management Affect Expensive Experimental Design? management strategy,if one is used. No Surprises Assurances? Adaptive management has HCP monitoring is divided into two HCP assurances(No Surprises)and traditionally been viewed and designed types. Compliance Monitoring is the use of adaptive management for large-scale systems.However,in verifying that the permittee is carrying strategies are compatible.The some situations we may want to retain out the terms of the HCP,permit,and assurances apply once all appropriate the flexibility of addressing uncertainty IA,if one is used.Effects and HCP provisions have been mutually through an adaptive management Effectiveness Monitoring evaluates the crafted and agreed upon and approved strategy at a smaller scale.In such effects of the permitted action and by the Services and the applicant. situations,an adaptive management determines whether the effectiveness of Adaptive management strategies,if strategy could take many forms the operating conservation program of used,are part of those provisions,and including creating a simple feedback the HCP are consistent with the their implementation becomes part of a loop so that management changes could assumptions and predictions made properly implemented conservation be implemented based on results of the when the HCP was developed and plan.When an HCP,permit,and IA,if HCP's monitoring program. Similarly, approved;in other words,is the HCP used,incorporate an adaptive the agreed-upon strategy may be achieving the biological goals and management strategy,it should clearly integration of an HCP with any ongoing objectives. state the range of possible operating research,recovery planning,and Scientific literature discussing conservation program adjustments due conservation planning by Federal,State, monitoring uses similar terms as the to significant new information,risk,or and local agencies.This integration is addendum but the terms may have uncertainty.This range defines the an efficient way to address uncertainty different meanings.For instance,the limits of what resource commitments and provide the information needed to term"validation monitoring"is the may be required of the permittee.This guide changes in small to medium sized same concept as the addendum's term process will enable the applicant to HCPs.We can also view smaller,yet "effectiveness monitoring."However, assess the potential economic impacts of similar HCPs collectively across a "effectiveness monitoring"in the adjustments before agreeing to the HCP. landscape in order to adapt our scientific literature simply means approaches in future HCPs(Johnson measuring the status of species. Is Adaptive Management the Only 1999).This approach will require us to "Implementation monitoring"is ".• Method for Changing the Operating coordinate information among similar roughly equivalent to the addendum's Conservation Program of an HCP? HCPs,including communication with term"compliance monitoring"with the HCPs may be designed to provide the individual applicants regarding their added regulatory nature of the flexibility other than through the use of role in such a landscape approach. involvement of a permit. 35254 Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices What Determines the Extent of a adaptive management strategy,if What Role Do the Services Have in / ,, Monitoring Program? utilized.An effective monitoring Monitoring? The scope of the monitoring program program is flexible enough to allow Both the Services and the permittee should be commensurate with the scope modifications,if necessary,to obtain the are responsible for monitoring the and duration of the operating appropriate information. implementation of the HCP.The conservation program and the project Monitoring programs will vary based Services'primary monitoring impacts.Biological goals and objectives on whether they are for low-effect or for responsibilities(with the assistance of provide a framework for developing a regional,multispecies HCPs;however, the permittee)are ensuring compliance monitoring program that measures the general elements of each program with the permit's terms and conditions, progress toward meeting those goals and are similar.Post-activity or post- including proper implementation of the objectives.If an HCP,permit,and/or IA construction monitoring,along with a HCP by the permittee.Permittee has an adaptive management strategy, single report at the end of the assistance with compliance monitoring integrating the monitoring program into monitoring period,will often satisfy the includes monitoring the implementation this strategy is crucial in order to guide monitoring requirements for low-effect and reporting their findings/results.The any necessary changes in management. HCPs.For other HCPs,monitoring permittee,with the assistance of the Monitoring programs for large-scale or programs will be more comprehensive Services,is responsible for verifying the regional planning efforts may be and may include milestones,timelines, effects and effectiveness of the HCP.To elaborate and track more than one and/or trigger points for change. monitor all aspects of an HCP component of the HCP(e.g.,habitat Effects and effectiveness monitoring effectively,and to ensure its ultimate quality or collection of mitigation fees). includes,but is not limited to,the success,the entire monitoring program Conversely,monitoring programs for following: should incorporate both types of HCPs with smaller impacts of short 1.Periodic accounting of incidental monitoring.The Services and the duration might only need to file simple take that occurred in conjunction with applicant should coordinate the two reports that document whether the HCP the permitted activity; aspects of monitoring,and the has been implemented as described.For 2.Surveys to determine species monitoring program should also clearly example,if an HCP affects only a status,appropriately measured for the designate who is responsible for the portion of a population,the permittee particular operating conservation various aspects of monitoring. should not generally be responsible for program(e.g.,presence,density,or The Services are responsible for monitoring the entire population.In reproductive rates); ensuring that the permittee is meeting addition,it may not be appropriate for 3.Assessments of habitat condition; the terms and conditions of the HCP,its a monitoring program to involve 4.Progress reports on fulfillment of accompanying incidental take permit, counting of populations or individuals the operating conservation program(e.g., and IA,if any(i.e.,compliance or making an assessment of habitat.The habitat acres acquired and/or restored); monitoring).The Services should verify P.\ appropriate unit of measure in a and adherence to the terms and conditions monitoring program depends upon the 5.Evaluations of the operating of the incidental take permit,HCP,IA, specific impacts and operating conservation program and its progress and any other related agreements and conservation program within an HCP. toward its intended biological goals. should ensure that incidental take of the The Services are responsible for What Units Should Be Monitored in an covered species does not exceed the ensuring that the appropriate units of HGP level authorized under the incidental measure and protocols are used and take permit.Regulations at 50 CFR should coordinate monitoring programs Each HCP's monitoring program §§13.45 and 222.301,provide the to obtain a larger view of the status of should be customized to reflect the authority for the Services to require a population.The applicant and the biological goals,the scope,and the periodic reports unless otherwise Services should also design the particular implementation tasks of the specified by the incidental take permit. monitoring program to reflect the HCP.In order to obtain meaningful Also,the Services will ensure that the structure of the biological goals and information,the applicant and the reporting requirements are tailored for objectives. Services should structure the documenting compliance with the The monitoring program should monitoring methods and standards so incidental take permit(e.g., reflect the measurable biological goals that we can compare the results from documentation of habitat acquisition, and objectives.The following one reporting period to another period use of photographs).These reports help components are essential for most or compare different areas,and the determine whether the permittee is monitoring protocols(the size and scope monitoring protocol responds to the properly implementing the terms and of the HCP will dictate the actual level question(s)asked.Monitored units conditions of the HCP,its incidental of detail in each item): (1)Assess the should reflect the biological objective's take permit,and any IA,and will implementation and effectiveness of the measurable units(e.g.,if the biological provide a long-term administrative HCP terms and conditions(e.g., objective is in terms of numbers of record documenting progress made financial responsibilities and individuals,the monitoring program under the incidental take permit. obligations,management should measure the number of In addition to reviewing reports responsibilities,and other aspects of the individuals).The monitoring program submitted by the permittee,it is incidental take permit,HCP,and the IA, will be based on sound science. important for the Services to make field if applicable);(2)determine the level of Standard survey or other previously- visits to verify the accuracy of incidental take of the covered species; established monitoring protocols should monitoring data submitted by the (3) determine the biological conditions be used.Although the specific methods permittees.These visits allow the resulting from the operating used to gather necessary data may differ Services to check for information, conservation program(e.g.,change in depending on the species and habitat identify unanticipated deficiencies or /'' the species'status or a change in the types,monitoring programs should use benefits,develop closer cooperative ties habitat conditions);and(4)provide any a multispecies approach when with the permittee,prevent accidental information needed to implement an appropriate. violations of the incidental take permit's Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices 35255 terms and conditions,and assist the monitoring determines the extent of 8.Evaluation of progress toward , permittee and Services in developing impacts from the permitted activity. achieving measurable biological goals corrective actions when necessary. Effectiveness monitoring,in the HCP and objectives and other terms and For large-scale or regional HCPs, program,assesses progress toward the conditions as required by the incidental oversight committees,made up of biological goals and objectives of the take permit or IA. representatives from significantly HCP(e.g.,if the conservation strategies These elements may be simplified for affected entities(e.g.,State Fish and are producing the desired habitat periods of no activity or low-effect Wildlife agencies),are often used to conditions or population numbers). HCPs.If a required report is not ensure proper and periodic review of Effects and effectiveness monitoring submitted by the date specified in the the monitoring program and to ensure may also involve assessing threats and HCP or incidental take permit terms and that each program properly implements population trends of the covered species conditions,or is inadequate,the the terms and conditions of the related to the permitted activities,as Services will notify the permittee.The incidental take permit.For example,the well as monitoring the development of Services have discretion to offer the Wisconsin Statewide HCP for the Karner targeted habitat conditions.Permittees, permittee an extension of time to blue butterfly includes an auditing with assistance from the Services, demonstrate compliance.The Services approach to ensure incidental take should ensure that the HCP includes have examined this reporting guidance permit compliance.The lead permittee, provisions for monitoring the effects under the Paperwork Reduction Act of Wisconsin Department of Natural and effectiveness of the HCP.The 1995 and found that it does not contain Resources(Wisconsin DNR),will Services and the HCP permittee will requests for additional information or an initially conduct annual on-site audits cooperatively develop the effects and increase in the collection requirements of each partner.FWS will audit the effectiveness monitoring program and other than those already approved for Wisconsin DNR in a similar fashion.In determine responsibility for its various incidental take permits(OMB approval addition,FWS will accompany the components.In multi-party HCPs, for FWS,#1018-0094;for NMFS,# Wisconsin DNR on the partner audits as different parties may monitor different 0648-0230). appropriate to understand partner aspects of the HCP.The Services must compliance levels.Over time,if periodically review any monitoring How Are Monitoring Programs Funded? 1 performance levels are acceptable, program to confirm that it is conducted The ESA and the implementing Wisconsin DNR will conduct the audits according to their standards. regulations (50 CFR 17 and 222)require less frequently.Each partner will that HCPs specify the measures the provide an annual monitoring report What Should Be Included in Monitoring permittee will adopt to ensure adequate and will submit these along with their Reports? funding for the HCP.The Services audit report to FWS. The Services will streamline the should not approve an HCP that does For large-scale or regional HCPs, reporting requirements for monitoring not contain an adequate funding oversight committees should programs by requesting all reports in a commitment from the applicant/ periodically evaluate the permittee's single document.The HCP,permit,or permittee to support an acceptable implementation of the HCP,its IA should specifically state the level of monitoring program unless the HCP incidental take permit,and IA and the detail and quantification needed in the establishes alternative funding success of the operating conservation monitoring report and tailor report due mechanisms.The Services and the program in reaching its identified dates to the activities conducted under applicant should work together to biological goals and objectives.Such the incidental take permit(e.g.,due at develop the monitoring program and committees usually include species the end of a particular stage of the determine who will be responsible for experts and representatives of the project or the anniversary date of monitoring the various components of permittee,the Services,and other incidental take permit issuance).Most the HCP. Specific monitoring tasks may affected agencies and entities. monitoring programs require reports be assigned to entities other than the Submitting the committee's findings to annually,usually due on the permittee(e.g.,State or Tribal agencies) recognized experts in pertinent fields anniversary date of incidental take as long as the Services and parties (e.g.,conservation biologists or permit issuance.Wherever possible,the responsible for implementing the HCP restoration specialists)for review or Services will coordinate the due dates approve of the monitoring assignment. having technical experts conduct field with other reporting requirements(e.g., The terms of the HCP,incidental take investigations to assess implementation State reports),so the permittee can permit,and IA may contain funding of the terms and conditions would also satisfy more than one reporting mechanisms that provide for a public be beneficial.Because the formation of requirement with a single report.The q g p (e.g.,local,State,or Federal)or a private these committees may be subject to the following list represents the information entity to conduct all or portions of the Federal Advisory Committee Act,the generally needed in a monitoring report: monitoring.This funding mechanism role of the participants and the purpose 1.Biological goals and objectives of must be agreed upon by the Services of the meetings must be clearly the HCP(which may need to be reported and the parties responsible for identified.Oversight committees should only once); implementing the HCP. meet at least annually and review 2. Objectives for the monitoring implementation of the monitoring program(which may need to be Permit Duration program and filing of reports as defined reported only once); How Do We Decide the Length of Time in the HCP,permit,and/or IA,if one is 3.Effects on the covered species or for Which the Permit Is in Place? used. habitat; 4.Location of sampling sites; Both FWS and NMFS regulations for What Role Does the Permittee Have in 5.Methods for data collection and incidental take permits outline factors to Monitoring? variables measured; consider when determining incidental P"\ regular only do permittees provide 6.Frequency,timing,and duration of take permit duration(50 CFR 17.32 and regular implementation reports,they are sampling for the variables; 222.307).These factors include duration also involved in effects and 7.Description of the data analysis and of the applicant's proposed activities effectiveness monitoring.Effects who conducted the analyses;and and the expected positive and negative 35256 Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices effects on covered species associated exceptions,we are extending the Although the development of an HCP is with the proposed duration,including minimum comment period to 60 days the applicant's responsibility,the /"\ the extent to which the operating for most HCPs.The exceptions to a 60- Services will encourage applicants for conservation program will increase the day comment period would be for low- most large-scale,regional HCP efforts to long-term survivability of the listed effect HCPs,individual permits under a provide extensive opportunities for species and/or enhance its habitat.For programmatic HCP,and large-scale, public involvement during the planning instance,if the permittee's action or the regional,or exceptionally complex and implementation process. implementation of the conservation HCPs. The Services encourage the use of measures continually occur over a long The Services believe the current 30- scientific advisory committees during period of time,such as with timber day public comment period provides the development and implementation of harvest management,the permit would enough time for interested parties to an HCP.The integration of a scientific need to encompass that time period. review major HCP amendments and advisory committee and perhaps other The Services will also consider the low-effect HCPs.Low-effect HCPs have stakeholders improves the development extent of information underlying the a categorical exclusion from NEPA and, and implementation of any adaptive HCP,the length of time necessary to therefore,do not have a NEPA public management strategy.Advisory implement and achieve the benefits of participation requirement. Similarly,in committees can assist the Services and the operating conservation program,and some cases,individual permits issued applicants in identifying key the extent to which the program under a programmatic HCP may not components of uncertainty and incorporates adaptive management need additional public review since the determining alternative strategies for strategies.Significant biological larger,programmatic HCP would have addressing that uncertainty.We also uncertainty may necessitate an adaptive undergone more extensive review. encourage the use of peer review for an management strategy.The gathering of However,for large-scale,regional,or HCP.An applicant,with guidance from new information through the monitoring exceptionally complex HCPs,the the Services,may seek independent program requires an appropriate period Services are increasingly encouraging scientific review of specific sections of of time for meaningful interpretation of applicants to use informational an HCP and its operating conservation new information into changes in meetings and/or advisory committees, strategy to ensure the use of the best management;this analysis could In addition,the minimum comment scientific information. necessitate a permit with a longer period for these HCPs is now 90 days, duration.However,if an ada tive unless significant public participation How Do the Services Consider Tribal P occurs duringHCP development.With Interest in an HCP? management strategy that significantly P reduces the risk of the HCP to that the extension of the public comment We recommend that applicants species cannot be devised and periods,the recommended timeline include participation by affected Native implemented,then,if the issuance targets for processing incidental take American tribes during the development criteria are met,a shorter duration may permits are extended accordingly:The of the HCP.If an applicant chooses not ,rte be appropriate. target timeline from receipt of a to consult with Tribes,under the The varying biological impacts complete application to the issuance of Secretarial Order on Federal-Tribal resulting from the proposed activity a permit for low-effect HCPs will remain Trust Responsibilities and ESA,the (e.g.,variations in the length of timber up to 3 months,HCPs with an Services will consult with the affected rotations and treatments versus a real Environmental Assessment(EA)will be Tribes to evaluate the effects of the estate subdivision buildout)and the 4 to 6 months,and HCPs with a 90-day proposed HCP on tribal trust resources. nature or scope of the permitted activity comment period and/or an We will also provide the information and conservation program in the HCP Environmental Impact Statement(EIS) gained from the consulted tribal (e.g.,housing or commercial may be up to 12 months. government to the HCP applicant prior developments versus long-term How Do the Services Let Interested to the submission of the draft HCP for sustainable forestry;conservation Parties Know About the HCP's Comment public comment and will advocate the easements)account for variation in Period? incorporation of measures that will permit duration.Longer permits may be conserve,restore,or enhance Tribal necessary to ensure long-term active During the public comment period, trust resources.After consultation with any commitments to the HCP and typically and ember mment oof ne public may the HCP and the review the tribal government and the applicant include up-front contingency planningand after careful consideration of the for changed circumstances to allow accompanying NEPA document,if Tribe's concerns,we will clearly state appropriate changes in the conservation applicable.If an EIS is required,the the rationale for the recommended final measures. public can also participate during the decision and explain how the decision scoping process.We announce all relates to the Services'trust Public Participation complete applications received in the responsibility. What Is the Public Participation Federal Register.When practicable,the Services will announce the availability Literature Cited Requirement for HCPs? of HCPs in electronic format and in Dovers,S.R.and C.D.Mobbs.1997.An As stated in the HCP Handbook in local newspapers of general circulation. alluring prospect?Ecology and the Chapter 6.B,we currently require a requirements of adaptive management. minimum 30-day public comment How Do the Services or Applicants Klomp,N.I.&Lunt,I.D.(eds.).Frontiers period for all HCP applications.This Incorporate Public Participation During in Ecology:Building the Links.Elsevier comment period is required by section the Development of an HCP? Science,Oxford. 10(c)of the ESA and the implementing The Services will strongly encourage Elzinga,C.L.,Salzer,D.W.,and J.W. regulations at 50 CFR 17 and 222.The potential applicants to allow for public Willoughby.1998.Measuring and moBLM Services recognize the concern of the participation during the development of Technical Referenceplepo1730- . LM, Technical 1730-1.BLM, P""1 public regarding an inadequate time for an HCP,particularly if non-Federal Denver,CO. the public comment period,especially public agencies(e.g.,State Fish and Gunderson,L.1999.Resilience,flexibility for large-scale HCPs.With a few Wildlife agencies)are involved. and adaptive management—antidotes for Federal Register/Vol. 65, No. 106/Thursday, June 1, 2000/Notices 35257 spurious certitude?Conservation management.Conservation Ecology 3(2): Walters,C.1997.Challenges in adaptive / " Ecology.3(1):7[online]URL:http:// 3[online]URL:http:// management of riparian and coastal www.consecol.org/vol3/iss1/art7. www.consecol.org/vol3/iss2/art3. ecosystems.Conservation Ecology 1(2):1 Holling,C.S.(ed).1978.Adaptive McLain,R.J.&Lee,R.G.1996.Adaptive [online]URL:http://www.consecol.org/ Environmental Management and management:promises and pitfalls, volt/iss2/art1. Assessment Wiley,Chichester. Environmental Management,20:437- Walters,C.J.and C.S.Holling.1990.Large- Johnson,B.L.1999.Introduction to the 448. scale management experiments and special feature:adaptive management— Rogers,K.1998.Managing science/ learning by doing.Ecology 71:2060. scientifically sound,socially challenged? management partnerships:a challenge of Dated:April 4,2000. Conservation Ecology 3(1):10[online] adaptive management.Conservation Jamie Rappaport Clark, URL:http://www.consecol.org/vol3/iss1/ Ecology[online]2(2):Response 1 art10. [online]URL:http://www.consecol.org/ Director,Fish and Wildlife Service. Johnson,B.L.1999.The role of adaptive vol2/iss2/respl. Dated:May 19,2000. management as an operational approach Shindler,B.,B.Steel,and P.List.1996. Penelope D.Dalton, for resource management agencies. Public judgements of adaptive Conservation Ecology 3(2):8[online] management.Journal of Forestry 94:5. Assistant Administrator for Fisheries, URL:http://www.consecol.org/vol3/iss2/ Walters,C.1986.Adaptive Management of National Marine Fisheries Service. art8. Renewable Resources Macmillan,New [FR Doc.00-13553 Filed 5-31-00;8:45 am] Lee,K.N.1999.Appraising adaptive York. BILLING CODE 4310-55-P;3510-22-P ,^