81_FR_93947 81 FR 93702 - Joint U.S. Fish and Wildlife Service and National Marine Fisheries Service Habitat Conservation Planning Handbook

81 FR 93702 - Joint U.S. Fish and Wildlife Service and National Marine Fisheries Service Habitat Conservation Planning Handbook

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 245 (December 21, 2016)

Page Range93702-93704
FR Document2016-30673

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

Federal Register, Volume 81 Issue 245 (Wednesday, December 21, 2016)
[Federal Register Volume 81, Number 245 (Wednesday, December 21, 2016)]
[Notices]
[Pages 93702-93704]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-30673]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. FWS-HQ-ES-2016-0004]
RIN 0648-XE423


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

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

ACTION: Notice of availability.

-----------------------------------------------------------------------

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

FOR FURTHER INFORMATION CONTACT: Trish Adams, U.S. Fish and Wildlife 
Service (phone: 703-358-2120; email: [email protected]), or Maggie 
Miller, National Marine Fisheries Service (phone: 301-427-8457; email: 
[email protected]). People who use a Telecommunications Device 
for the Deaf (TDD) may call the Federal Relay Service (FIRS) at 1-800-
877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: 

Introduction

    We, the U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS) (together, the Services), announce the 
availability of the final revised Habitat Conservation Planning (HCP) 
Handbook, a joint handbook that describes requirements, procedures, and 
guidance for permit issuance and conservation plan development for 
incidental take permits under section 10(a)(1)(B) of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.; ESA). The 
Services issue these ESA section 10(a)(1)(B) incidental take permits 
and help applicants develop conservation plans as a prerequisite to 
obtaining these permits.
    The original HCP Handbook was made available via a Federal Register 
notice on December 2, 1996 (61 FR 63854), and was subsequently revised 
by addendum, effective July 3, 2000 (65 FR 35242; June 1, 2000). On 
June 28, 2016, we opened a 60-day comment period for a draft revised 
joint HCP Handbook, announcing it via the Federal Register (81 FR 
41986). During that comment period, we received 54 public comments. We 
now announce the final revised joint HCP Handbook, which is intended to 
be more streamlined and user friendly than previous editions. It 
presents and provides guidance on the HCP process from start to finish.

Document Availability

    The final joint HCP Handbook is available at: https://www.fws.gov/

[[Page 93703]]

endangered/esa-library/pdf/HCP_Handbook.pdf (FWS) and http://www.nmfs.noaa.gov/pr/laws/esa/policies.htm (NMFS).

Background

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

HCP Handbook Purpose

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

Summary of Changes From the 1996 Version of the HCP Handbook

    The final revised HCP Handbook reflects current FWS and NMFS HCP 
practices, guidance, and policies; incorporates lessons from 
implementing the HCP program over the past 30 years; and provides 
guidance to assist applicants and the Services to avoid common pitfalls 
that can delay HCP negotiations and development or processing of 
incidental take permits.
    The goal is to provide a joint HCP Handbook that helps streamline 
the process and improve efficiency of the HCP program. To accomplish 
this, we reorganized the HCP Handbook so that it walks Services staff 
and stakeholders through each part of the HCP process, from the pre-
application stage through incidental take permit issuance and HCP 
implementation through monitoring and compliance.
    Some of the most significant changes we made include the following:
    (1) Introduced the concept that applicants should ``go fast by 
starting slowly,'' which emphasizes the benefits to applicants of 
thorough pre-planning before jumping directly into HCP development, 
especially for landscape-level HCPs.
    (2) Focused on the vital review and administrative steps without 
compromising legal integrity, in order to help streamline the process.
    (3) Clarified the concept of minimizing and mitigating the impacts 
of taking ``to the maximum extent practicable.''
    (4) Ensured consistency with the most recent policies, such as the 
revised FWS Mitigation Policy, which was announced via a Federal 
Register notice on November 21, 2016.
    (5) Clarified the use of implementing agreements.
    (6) Updated and clarified permit duration.
    (7) Provided guidance on how to comply with section 106 of the 
National Historic Preservation Act of 1966 (54 U.S.C. 300101 et seq.).
    (8) Provided guidance on addressing climate change.
    (9) Updated and clarified what should be addressed through adaptive 
management versus changed and unforeseen circumstances.
    (10) Provided guidance on when to initiate the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.) process and intra-
Service ESA section 7 consultations, and when to seek assistance from 
the Solicitor or General Counsel.
    (11) Updated and clarified information concerning take analysis, 
responding to public comments, public notices, permit decision 
documents, compliance monitoring, and incidental take permit suspension 
and revocation.

Final Revisions Made to Draft Handbook and Reponses to Comments

    We published a notice of availability and request for public 
comment on our draft joint HCP Handbook in the Federal Register on June 
28, 2016 (81 FR 41986). There was a 60-day comment period ending August 
29, 2016, during which we received 54 comments. We received very 
complex, thoughtful, and often very detailed comments. Below are our 
responses to the most frequent comments and those that potentially 
could be controversial. After considering public comments, we clarified 
language in the Handbook based on the input we received.
    Comment 1: We received several comments requesting an extension of 
the 60-day comment period.
    Response 1: We believe that 60 days was sufficient to allow for 
public input by interested parties on the draft revised HCP Handbook, 
as the quantity and quality of the substantive comments the Services 
received attest. Another reason we think the comment period was of 
sufficient length is that we are developing a revision to an existing 
Handbook rather than an entirely new product; this revised Handbook 
largely provides additional information that clarifies the original 
Handbook.
    Comment 2: The draft HCP Handbook is repetitive and too complex for 
an applicant or project proponent.
    Response 2: We have taken steps in the final editing process to cut 
down on the repetitive nature of the HCP Handbook, and we have also 
cross-referenced sections. However, our target audience is internal 
Services HCP staff rather than the general public. We recommend that 
applicants coordinate with local field offices for more specific detail 
and advice or guidance on their specific project needs before 
developing their HCPs.
    Comment 3: The Services have provided a new standard for 
minimization and mitigation that is

[[Page 93704]]

inconsistent with the requirements of the ESA.
    Response 3: Some commenters took issue with the explanations in the 
Handbook, particularly in Chapter 9, of the ESA requirement that 
applicants must ``to the maximum extent practicable, minimize and 
mitigate the impacts of'' permitted taking. Some commenters interpreted 
these explanations and related discussions of the concept of ``fully 
offset,'' as creating an alternative or substitute for the ESA's 
statutory ``maximum extent practicable'' standard. However, the 
Handbook explains the ESA standard and clarifies the discussion that 
was in the 1996 Handbook. It does not establish a new or alternative 
standard for minimization and mitigation.
    We acknowledge that the manner in which this topic was presented in 
the draft may be confusing. Therefore, we have modified the language to 
provide clearer guidance that is consistent with the ESA's ``maximum 
extent practicable'' standard. We have also revised the language to 
better explain how applicants can meet the ESA's ``maximum extent 
practicable'' standard.
    Comment 4: The guidance on climate change in the Handbook goes too 
far. Applicants should not have to come up with complex models or 
complex global climate change scenarios.
    Response 4: We have clarified that climate change effects that 
could impact the applicant's proposed conservation strategy and the 
durability of mitigation should be considered in the HCP. In addition, 
we changed all references of ``climate change'' to ``climate change 
effects,'' in order to reduce confusion. Furthermore, applicants are 
not responsible for addressing climate change at a global scale.
    Regarding the comments concerning complex modeling, we suggest the 
use of various models to help applicants consider the effects of 
climate change while developing their conservation strategy. The 
Handbook does not impose a requirement to use specific models.
    Comment 5: The draft HCP Handbook undermines the ``No Surprises'' 
rule.
    Response 5: One of our main goals with this HCP Handbook revision 
was to incorporate lessons learned throughout our 30 years of program 
implementation in order to better address the possibility of changed or 
unforeseen circumstances by using tools such as adaptive management and 
better advance planning. With ``No Surprises,'' State and private 
landowners are assured that if ``unforeseen circumstances'' arise, the 
Services will not require the commitment of additional activities or 
additional restrictions beyond the level otherwise agreed to in the HCP 
without the consent of the permit holder.
    The Handbook does not change or undermine the ``no surprises'' 
rule, but rather it encourages applicants to consider a robust list of 
potential changed and unforeseen circumstances that could arise during 
the permit term. This will ensure successful implementation of the HCP 
and help to ensure that the conservation strategy and mitigation plan 
will endure in perpetuity, as required by the incidental take permit 
issuance criteria. We have provided clarifying language regarding the 
``No Surprises'' rule.
    Comment 6: The term ``mitigation'' is used throughout the Handbook, 
and there is no clear description about what mitigation actually means.
    Response 6: The Handbook treats mitigation in a manner consistent 
with the requirements and legal authorities provided by the ESA. We 
acknowledge that our use of the term ``mitigation'' in the draft was 
sometimes confusing. We have clarified our treatment of the ESA section 
10 mitigation requirements and also provided additional background, 
including the definition of mitigation and general principles of 
Federal mitigation policy as described in the November 3, 2015, 
Presidential Memorandum on mitigation. These clarifications can be 
found primarily in Chapter 9.
    Comment 7: Please clarify whether the HCP Handbook is guidance or 
policy.
    Response 7: The HCP Handbook is a Services guidance document that 
includes reference to respective agency policies (and citations) where 
appropriate.
    Comment 8: Contrary to the statements in the Handbook, the Services 
cannot require that all ESA-listed species that applicants expect they 
may take from proposed covered activities be covered by the HCP and 
incidental take permit. The Services should clarify that it is up to 
applicants to decide which species to include as covered species.
    Comment 8: Ultimately, it is the Services who determine if the 
applicant's incidental take permit application is complete. If the 
application does not include all of the ESA-listed wildlife species 
that we are reasonably certain may be taken as a result of the covered 
activities, then the Services would consider the application 
incomplete. Therefore, to ensure the applicant provides a complete 
incidental take permit application, the revised final version of the 
Handbook states, ``The Services require applicants to include as HCP-
covered species all ESA-listed wildlife species for which incidental 
take is reasonably certain to occur, unless take is addressed through a 
separate ESA mechanism (e.g., section 7 consultation with another 
Federal agency, separate incidental take permit, etc.), or to explain 
or demonstrate in the HCP why the applicant does not anticipate take or 
will avoid take during implementation of covered activities (e.g., 
inclusion of measures that will avoid potential for take).'' In the 
view of the Services, this best reflects the language, structure, and 
congressional purposes of ESA section 10 and the ESA as a whole. In 
addition, it is important to note that section 9 prohibitions make it 
illegal for any person subject to the jurisdiction of the United States 
to take any wildlife species listed as endangered (and threatened 
through FWS regulations), without written authorization.

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

    Dated: December 7, 2016.
James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
    Dated: December 8, 2016
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-30673 Filed 12-20-16; 8:45 am]
 BILLING CODE P



                                                    93702                    Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Notices

                                                    HUD ONAP regions. Up to three                           the nominee’s experience and interest in              (HCP) Handbook, which describes
                                                    remaining tribal members will serve at-                 American Indian and Alaska Native                     requirements, procedures, and guidance
                                                    large.                                                  housing and community development                     for permit issuance and conservation
                                                       The Secretary will appoint the                       matters;                                              plan development for incidental take
                                                    members of the TIAC. TIAC tribal                           2. Evidence that your nominee is a                 permits under the Endangered Species
                                                    delegates will serve a term of 2 years. To              duly elected or appointed tribal leader               Act. The purpose of the newly revised
                                                    ensure continuity between tribal terms,                 and is authorized to represent a tribal               joint HCP Handbook is to instruct the
                                                    delegates will have a staggered term of                 government;                                           Services on how to assist applicants to
                                                    appointment. In order to establish a                       3. A written commitment from the                   develop HCPs in an efficient and
                                                    staggered term of appointment, half of                  nominee that she or he will actively                  effective manner, while ensuring
                                                    the tribal members appointed in the                     participate in good faith in the                      adequate conservation of listed species.
                                                    inaugural year of the TIAC will serve 2                 Committee meetings; and                               Although the Handbook is designed for
                                                    years and the other half will serve 3                      4. A written preference for serving                the Services, it also can be useful to
                                                    years. Delegates must designate their                   either a two- or a three-year term on the             other HCP practitioners, such as
                                                    preference to serve 2 or 3 years;                       TIAC.                                                 applicants, consultants, and partners.
                                                    however, HUD will make the final                           HUD will appoint the members of the                FOR FURTHER INFORMATION CONTACT:
                                                    determination on which members will                     TIAC from the pool of nominees                        Trish Adams, U.S. Fish and Wildlife
                                                    serve for 3 years. Once these members                   requested by this notice. HUD will                    Service (phone: 703–358–2120; email:
                                                    complete these initial terms, all future                announce its final selections for TIAC                trish_adams@fws.gov), or Maggie Miller,
                                                    committee members will serve two-year                   membership in a future Federal Register               National Marine Fisheries Service
                                                    terms. Should a member’s tenure as a                    notice. Members will be selected based                (phone: 301–427–8457; email:
                                                    tribal leader come to an end during their               on proven experience and interest in                  Margaret.h.miller@noaa.gov). People
                                                    appointment to the TIAC, the member’s                   AIAN housing and community                            who use a Telecommunications Device
                                                    tribe may nominate a replacement.                       development matters, and whether the                  for the Deaf (TDD) may call the Federal
                                                    E. Objective of the TIAC                                interest of the proposed member could                 Relay Service (FIRS) at 1–800–877–
                                                                                                            be represented adequately by other                    8339, 24 hours a day, 7 days a week.
                                                      The establishment of the TIAC is                      members.                                              SUPPLEMENTARY INFORMATION:
                                                    intended to enhance government-to-                         In addition to the criteria above, at-
                                                    government relationships,                                                                                     Introduction
                                                                                                            large members will be selected based on
                                                    communications, and mutual                              their ability to represent specific                      We, the U.S. Fish and Wildlife
                                                    cooperation between HUD and tribal                      interests that might not be represented               Service (FWS) and the National Marine
                                                    governments and is not intended to, and                 by the selected regional members.                     Fisheries Service (NMFS) (together, the
                                                    will not, create any right to                                                                                 Services), announce the availability of
                                                    administrative or judicial review, or any                 Dated: December 16, 2016.
                                                                                                                                                                  the final revised Habitat Conservation
                                                    other right or benefit or trust                         Julián Castro,                                       Planning (HCP) Handbook, a joint
                                                    responsibility, substantive or                          Secretary.                                            handbook that describes requirements,
                                                    procedural, enforceable by a party                      [FR Doc. 2016–30744 Filed 12–20–16; 8:45 am]          procedures, and guidance for permit
                                                    against the United States, its agencies or              BILLING CODE 4210–67–P                                issuance and conservation plan
                                                    instrumentalities, its officers or                                                                            development for incidental take permits
                                                    employees, or any other persons.                                                                              under section 10(a)(1)(B) of the
                                                    III. Request for Nominations                            DEPARTMENT OF THE INTERIOR                            Endangered Species Act of 1973, as
                                                                                                                                                                  amended (16 U.S.C. 1531 et seq.; ESA).
                                                       The Committee will be composed of                    Fish and Wildlife Service                             The Services issue these ESA section
                                                    up to six HUD officials and up to fifteen                                                                     10(a)(1)(B) incidental take permits and
                                                    tribal representatives. Up to two tribal                DEPARTMENT OF COMMERCE                                help applicants develop conservation
                                                    members will represent each of the six                                                                        plans as a prerequisite to obtaining
                                                    HUD ONAP regions. The three                             National Oceanic and Atmospheric                      these permits.
                                                    remaining tribal members will serve at-                 Administration                                           The original HCP Handbook was
                                                    large. Only duly elected or appointed                                                                         made available via a Federal Register
                                                    tribal leaders may serve as tribal                      [Docket No. FWS–HQ–ES–2016–0004]                      notice on December 2, 1996 (61 FR
                                                    members of the TIAC. Once appointed                                                                           63854), and was subsequently revised
                                                                                                            RIN 0648–XE423
                                                    to the TIAC, tribal leaders may                                                                               by addendum, effective July 3, 2000 (65
                                                    designate an alternate who is a tribal                  Joint U.S. Fish and Wildlife Service                  FR 35242; June 1, 2000). On June 28,
                                                    employee and has the authority to act                   and National Marine Fisheries Service                 2016, we opened a 60-day comment
                                                    on his or her behalf. One of the tribal                 Habitat Conservation Planning                         period for a draft revised joint HCP
                                                    members will be selected by the                         Handbook                                              Handbook, announcing it via the
                                                    Committee to serve as the chairperson.                                                                        Federal Register (81 FR 41986). During
                                                       If you are interested in serving as a                AGENCY:   Fish and Wildlife Service,                  that comment period, we received 54
                                                    member of the Committee or in                           Interior; National Marine Fisheries                   public comments. We now announce
                                                    nominating another person to serve as a                 Service, National Oceanic and                         the final revised joint HCP Handbook,
                                                    member of the Committee, you may                        Atmospheric Administration,
asabaliauskas on DSK3SPTVN1PROD with NOTICES




                                                                                                                                                                  which is intended to be more
                                                    submit a nomination to HUD in                           Commerce.                                             streamlined and user friendly than
                                                    accordance with the ADDRESSES section                   ACTION: Notice of availability.                       previous editions. It presents and
                                                    of this notice. Your nomination for                                                                           provides guidance on the HCP process
                                                    membership on the Committee must                        SUMMARY:  We, the U.S. Fish and                       from start to finish.
                                                    include:                                                Wildlife Service and the National
                                                       1. The name of your nominee, a                       Marine Fisheries Service (Services),                  Document Availability
                                                    description of the interests the nominee                announce the availability of the final                  The final joint HCP Handbook is
                                                    would represent, and a description of                   revised Habitat Conservation Planning                 available at: https://www.fws.gov/


                                               VerDate Sep<11>2014   18:38 Dec 20, 2016   Jkt 241001   PO 00000   Frm 00048   Fmt 4703   Sfmt 4703   E:\FR\FM\21DEN1.SGM   21DEN1


                                                                             Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Notices                                           93703

                                                    endangered/esa-library/pdf/HCP_                         implementation, and environmental                       (9) Updated and clarified what should
                                                    Handbook.pdf (FWS) and http://                          compliance, using streamlined                         be addressed through adaptive
                                                    www.nmfs.noaa.gov/pr/laws/esa/                          approaches whenever possible. It draws                management versus changed and
                                                    policies.htm (NMFS).                                    on past experience to help staff                      unforeseen circumstances.
                                                                                                            understand regulations and policy and                   (10) Provided guidance on when to
                                                    Background                                                                                                    initiate the National Environmental
                                                                                                            navigate the various processes for
                                                       The purpose of the ESA is to protect                 completing an HCP and issuing a                       Policy Act (42 U.S.C. 4321 et seq.)
                                                    and recover threatened and endangered                   permit. Although the joint HCP                        process and intra-Service ESA section 7
                                                    species and the ecosystems on which                     Handbook is designed specifically for                 consultations, and when to seek
                                                    they depend. Section 9 of the ESA                       Services staff, it also can be helpful to             assistance from the Solicitor or General
                                                    prohibits ‘‘take’’ of any fish or wildlife              other HCP practitioners, such as                      Counsel.
                                                    species listed as endangered. In                        applicants, consultants, and partners.                  (11) Updated and clarified
                                                    addition, take of many species listed as                                                                      information concerning take analysis,
                                                    threatened is prohibited by regulation.                 Summary of Changes From the 1996                      responding to public comments, public
                                                    ‘‘Take’’ is defined in ESA section 3 as                 Version of the HCP Handbook                           notices, permit decision documents,
                                                    ‘‘to harass, harm, pursue, hunt, shoot,                    The final revised HCP Handbook                     compliance monitoring, and incidental
                                                    wound, kill, trap, capture, or collect, or              reflects current FWS and NMFS HCP                     take permit suspension and revocation.
                                                    to attempt to engage in any such                        practices, guidance, and policies;
                                                    conduct.’’ Before 1982, the ESA had a                                                                         Final Revisions Made to Draft
                                                                                                            incorporates lessons from implementing                Handbook and Reponses to Comments
                                                    mechanism for exempting Federal                         the HCP program over the past 30 years;
                                                    actions (section 7) from the prohibition                and provides guidance to assist                          We published a notice of availability
                                                    on ‘‘take’’; however, it did not have one               applicants and the Services to avoid                  and request for public comment on our
                                                    for non-Federal activities, except for                  common pitfalls that can delay HCP                    draft joint HCP Handbook in the Federal
                                                    permits to authorize ‘‘take’’ from                      negotiations and development or                       Register on June 28, 2016 (81 FR 41986).
                                                    scientific research or certain other                    processing of incidental take permits.                There was a 60-day comment period
                                                    conservation actions. Thus, non-Federal                    The goal is to provide a joint HCP                 ending August 29, 2016, during which
                                                    parties engaging in activities that might               Handbook that helps streamline the                    we received 54 comments. We received
                                                    result in ‘‘take’’ of listed species risked             process and improve efficiency of the                 very complex, thoughtful, and often
                                                    violating ESA section 9 take                            HCP program. To accomplish this, we                   very detailed comments. Below are our
                                                    prohibitions. Congress recognized the                   reorganized the HCP Handbook so that                  responses to the most frequent
                                                    need for a process to reduce conflicts                  it walks Services staff and stakeholders              comments and those that potentially
                                                    between protection of listed species and                through each part of the HCP process,                 could be controversial. After
                                                    economic development, so it amended                     from the pre-application stage through                considering public comments, we
                                                    the ESA in 1982 to add an exemption                                                                           clarified language in the Handbook
                                                                                                            incidental take permit issuance and
                                                    for ‘‘incidental take’’ of listed species                                                                     based on the input we received.
                                                                                                            HCP implementation through
                                                    that would result from non-Federal                                                                               Comment 1: We received several
                                                                                                            monitoring and compliance.
                                                    activities (section 10(a)(1)(B)).                                                                             comments requesting an extension of
                                                                                                               Some of the most significant changes
                                                    ‘‘Incidental take’’ is that which is                                                                          the 60-day comment period.
                                                                                                            we made include the following:                           Response 1: We believe that 60 days
                                                    incidental to, and not the purpose of,
                                                    carrying out an otherwise lawful                           (1) Introduced the concept that                    was sufficient to allow for public input
                                                    activity. To obtain a permit under ESA                  applicants should ‘‘go fast by starting               by interested parties on the draft revised
                                                    section 10(a)(1)(B), applicants must                    slowly,’’ which emphasizes the benefits               HCP Handbook, as the quantity and
                                                    develop a conservation plan that meets                  to applicants of thorough pre-planning                quality of the substantive comments the
                                                    specific requirements identified in ESA                 before jumping directly into HCP                      Services received attest. Another reason
                                                    section 10 and its regulations (50 CFR                  development, especially for landscape-                we think the comment period was of
                                                    17.22 and 17.32; 50 CFR 222.25, 222.27,                 level HCPs.                                           sufficient length is that we are
                                                    and 222.31). Among other requirements,                     (2) Focused on the vital review and                developing a revision to an existing
                                                    the plan must specify (1) the impacts                   administrative steps without                          Handbook rather than an entirely new
                                                    that are likely to result from ‘‘incidental             compromising legal integrity, in order to             product; this revised Handbook largely
                                                    take’’ and (2) the measures that the                    help streamline the process.                          provides additional information that
                                                    permit applicant will undertake to                         (3) Clarified the concept of                       clarifies the original Handbook.
                                                    minimize and mitigate such impacts.                     minimizing and mitigating the impacts                    Comment 2: The draft HCP Handbook
                                                    Conservation plans under section                        of taking ‘‘to the maximum extent                     is repetitive and too complex for an
                                                    10(a)(1)(B) have come to be known as                    practicable.’’                                        applicant or project proponent.
                                                    habitat conservation plans (HCPs). ESA                     (4) Ensured consistency with the most                 Response 2: We have taken steps in
                                                    section 10(a)(2)(B) provides statutory                  recent policies, such as the revised FWS              the final editing process to cut down on
                                                    criteria that must be satisfied before the              Mitigation Policy, which was                          the repetitive nature of the HCP
                                                    Services can issue an incidental take                   announced via a Federal Register notice               Handbook, and we have also cross-
                                                    permit.                                                 on November 21, 2016.                                 referenced sections. However, our target
                                                                                                               (5) Clarified the use of implementing              audience is internal Services HCP staff
                                                    HCP Handbook Purpose                                    agreements.                                           rather than the general public. We
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                                                      The purpose of the joint HCP                             (6) Updated and clarified permit                   recommend that applicants coordinate
                                                    Handbook is to instruct the Services on                 duration.                                             with local field offices for more specific
                                                    how to assist applicants to develop                        (7) Provided guidance on how to                    detail and advice or guidance on their
                                                    HCPs in an efficient and effective                      comply with section 106 of the National               specific project needs before developing
                                                    manner while ensuring adequate                          Historic Preservation Act of 1966 (54                 their HCPs.
                                                    conservation of listed species. The HCP                 U.S.C. 300101 et seq.).                                  Comment 3: The Services have
                                                    Handbook guides Services staff, phase                      (8) Provided guidance on addressing                provided a new standard for
                                                    by phase, through development,                          climate change.                                       minimization and mitigation that is


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                                                    93704                    Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Notices

                                                    inconsistent with the requirements of                   additional restrictions beyond the level              to include as HCP-covered species all
                                                    the ESA.                                                otherwise agreed to in the HCP without                ESA-listed wildlife species for which
                                                       Response 3: Some commenters took                     the consent of the permit holder.                     incidental take is reasonably certain to
                                                    issue with the explanations in the                         The Handbook does not change or                    occur, unless take is addressed through
                                                    Handbook, particularly in Chapter 9, of                 undermine the ‘‘no surprises’’ rule, but              a separate ESA mechanism (e.g., section
                                                    the ESA requirement that applicants                     rather it encourages applicants to                    7 consultation with another Federal
                                                    must ‘‘to the maximum extent                            consider a robust list of potential                   agency, separate incidental take permit,
                                                    practicable, minimize and mitigate the                  changed and unforeseen circumstances                  etc.), or to explain or demonstrate in the
                                                    impacts of’’ permitted taking. Some                     that could arise during the permit term.              HCP why the applicant does not
                                                    commenters interpreted these                            This will ensure successful                           anticipate take or will avoid take during
                                                    explanations and related discussions of                 implementation of the HCP and help to                 implementation of covered activities
                                                    the concept of ‘‘fully offset,’’ as creating            ensure that the conservation strategy                 (e.g., inclusion of measures that will
                                                    an alternative or substitute for the ESA’s              and mitigation plan will endure in                    avoid potential for take).’’ In the view of
                                                    statutory ‘‘maximum extent practicable’’                perpetuity, as required by the incidental             the Services, this best reflects the
                                                    standard. However, the Handbook                         take permit issuance criteria. We have                language, structure, and congressional
                                                    explains the ESA standard and clarifies                 provided clarifying language regarding                purposes of ESA section 10 and the ESA
                                                    the discussion that was in the 1996                     the ‘‘No Surprises’’ rule.                            as a whole. In addition, it is important
                                                    Handbook. It does not establish a new                      Comment 6: The term ‘‘mitigation’’ is              to note that section 9 prohibitions make
                                                    or alternative standard for minimization                used throughout the Handbook, and                     it illegal for any person subject to the
                                                    and mitigation.                                         there is no clear description about what              jurisdiction of the United States to take
                                                       We acknowledge that the manner in                    mitigation actually means.                            any wildlife species listed as
                                                    which this topic was presented in the                      Response 6: The Handbook treats                    endangered (and threatened through
                                                    draft may be confusing. Therefore, we                   mitigation in a manner consistent with                FWS regulations), without written
                                                    have modified the language to provide                   the requirements and legal authorities                authorization.
                                                    clearer guidance that is consistent with                provided by the ESA. We acknowledge
                                                    the ESA’s ‘‘maximum extent                              that our use of the term ‘‘mitigation’’ in              Authority: 16 U.S.C. 1531 et seq.
                                                    practicable’’ standard. We have also                    the draft was sometimes confusing. We                   Dated: December 7, 2016.
                                                    revised the language to better explain                  have clarified our treatment of the ESA               James W. Kurth,
                                                    how applicants can meet the ESA’s                       section 10 mitigation requirements and                Acting Director, U.S. Fish and Wildlife
                                                    ‘‘maximum extent practicable’’                          also provided additional background,                  Service.
                                                    standard.                                               including the definition of mitigation                  Dated: December 8, 2016
                                                       Comment 4: The guidance on climate                   and general principles of Federal                     Samuel D. Rauch, III,
                                                    change in the Handbook goes too far.                    mitigation policy as described in the
                                                                                                                                                                  Deputy Assistant Administrator for
                                                    Applicants should not have to come up                   November 3, 2015, Presidential                        Regulatory Programs, National Marine
                                                    with complex models or complex global                   Memorandum on mitigation. These                       Fisheries Service.
                                                    climate change scenarios.                               clarifications can be found primarily in              [FR Doc. 2016–30673 Filed 12–20–16; 8:45 am]
                                                       Response 4: We have clarified that                   Chapter 9.
                                                                                                                                                                  BILLING CODE P
                                                    climate change effects that could impact                   Comment 7: Please clarify whether
                                                    the applicant’s proposed conservation                   the HCP Handbook is guidance or
                                                    strategy and the durability of mitigation               policy.                                               DEPARTMENT OF THE INTERIOR
                                                    should be considered in the HCP. In                        Response 7: The HCP Handbook is a
                                                    addition, we changed all references of                  Services guidance document that                       Fish and Wildlife Service
                                                    ‘‘climate change’’ to ‘‘climate change                  includes reference to respective agency
                                                    effects,’’ in order to reduce confusion.                policies (and citations) where                        [FWS–HQ–R–2016–N214];
                                                                                                            appropriate.                                          [FXGO1664091HCC0–FF09D00000–178]
                                                    Furthermore, applicants are not
                                                    responsible for addressing climate                         Comment 8: Contrary to the
                                                                                                                                                                  Wildlife and Hunting Heritage
                                                    change at a global scale.                               statements in the Handbook, the
                                                                                                                                                                  Conservation Council; Public Meeting
                                                       Regarding the comments concerning                    Services cannot require that all ESA-
                                                    complex modeling, we suggest the use                    listed species that applicants expect                 AGENCY:   Fish and Wildlife Service,
                                                    of various models to help applicants                    they may take from proposed covered                   Interior.
                                                    consider the effects of climate change                  activities be covered by the HCP and                  ACTION: Notice of meeting.
                                                    while developing their conservation                     incidental take permit. The Services
                                                    strategy. The Handbook does not impose                  should clarify that it is up to applicants            SUMMARY:   We, the U.S. Fish and
                                                    a requirement to use specific models.                   to decide which species to include as                 Wildlife Service, announce a public
                                                       Comment 5: The draft HCP Handbook                    covered species.                                      meeting of the Wildlife and Hunting
                                                    undermines the ‘‘No Surprises’’ rule.                      Comment 8: Ultimately, it is the                   Heritage Conservation Council
                                                       Response 5: One of our main goals                    Services who determine if the                         (Council). The Council provides advice
                                                    with this HCP Handbook revision was to                  applicant’s incidental take permit                    about wildlife and habitat conservation
                                                    incorporate lessons learned throughout                  application is complete. If the                       endeavors that benefit wildlife
                                                    our 30 years of program implementation                  application does not include all of the               resources; encourage partnership among
                                                    in order to better address the possibility              ESA-listed wildlife species that we are               the public, sporting conservation
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                                                    of changed or unforeseen circumstances                  reasonably certain may be taken as a                  organizations, States, Native American
                                                    by using tools such as adaptive                         result of the covered activities, then the            tribes, and the Federal Government; and
                                                    management and better advance                           Services would consider the application               benefit recreational hunting.
                                                    planning. With ‘‘No Surprises,’’ State                  incomplete. Therefore, to ensure the                  DATES: Meeting: Tuesday, February 7,
                                                    and private landowners are assured that                 applicant provides a complete                         2017, from 10:30 a.m. to 5 p.m., and
                                                    if ‘‘unforeseen circumstances’’ arise, the              incidental take permit application, the               Wednesday, February 8, 2017, from 8
                                                    Services will not require the                           revised final version of the Handbook                 a.m. to 1 p.m. (Eastern Standard Time).
                                                    commitment of additional activities or                  states, ‘‘The Services require applicants             For deadlines and directions on


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Document Created: 2018-02-14 09:11:40
Document Modified: 2018-02-14 09:11:40
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of availability.
ContactTrish Adams, U.S. Fish and Wildlife Service (phone: 703-358-2120; email: [email protected]), or Maggie Miller, National Marine Fisheries Service (phone: 301-427-8457; email: [email protected]). People who use a Telecommunications Device for the Deaf (TDD) may call the Federal Relay Service (FIRS) at 1-800- 877-8339, 24 hours a day, 7 days a week.
FR Citation81 FR 93702 
RIN Number0648-XE42

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