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)

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


=======================================================================
-----------------------------------------------------------------------

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