habitat conservation handbook

0230 hcp_handbook.pdf

Permits for Incidental Taking of Endangered or Threatened Species

habitat conservation handbook

OMB: 0648-0230

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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 . . . . . . . . . . . . . . .
A. Delegation of Permit Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Roles and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Field Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Regional Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Washington Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Solicitor’s Office/General Counsel Office . . . . . . . . . . . . . . . . . . . . . . .

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2-1
2-1
2-1
2-2
2-3
2-7
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 . . . . . . . . . . . . . . . . . . . . . . . . . 3B. Developing the HCP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31. Mandatory Elements of an HCP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-

TABLE OF CONTENTS (CONT.)
Section

Page
2.

D.
E.
F.

Identifying Project Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Delineation of HCP Boundaries . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. Collection and Synthesis of Biological Data . . . . . . . . . . . . . . . . . .
c.
Determination of Proposed Activities . . . . . . . . . . . . . . . . . . . . . . .
d. Determining Anticipated Take Levels . . . . . . . . . . . . . . . . . . . . . . .
e.
Coordinating the HCP With Section 7 of the ESA . . . . . . . . . . . . .
f.
Addressing Indirect Project Effects . . . . . . . . . . . . . . . . . . . . . . . .
g. Consideration of Plants in the HCP and Permit . . . . . . . . . . . . . . . .
h. Addressing Effects on Critical Habitat . . . . . . . . . . . . . . . . . . . . . .
3. Mitigation Programs & Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Regulatory Standards & Relationship to Recovery . . . . . . . . . . . . .
b. Must an HCP Benefit the Species? . . . . . . . . . . . . . . . . . . . . . . . . .
c.
Mitigation For Habitat Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d. Funding Recovery Measures as Mitigation . . . . . . . . . . . . . . . . . . .
e.
Mitigation for Small-Scale, Low-Effect Projects . . . . . . . . . . . . . .
f.
Consistency in Mitigation Standards . . . . . . . . . . . . . . . . . . . . . . .
g. Adaptive Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Monitoring Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Unforeseen/Extraordinary Circumstances . . . . . . . . . . . . . . . . . . . . . . . .
a.
The "No Surprises" Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. HCP Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6. Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7. Analyzing Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8. Additional Measures-Implementing Agreements . . . . . . . . . . . . . . . . . . .
Alternative HCPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Addressing Species Through Habitat-Based HCPs . . . . . . . . . . . . . . . . .
2. Programmatic HCPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Addressing Migratory Birds and Eagles (FWS Only) . . . . . . . . . . . . . . . . . . . .
Coordinating HCPs With National Wildlife Refuges (FWS Only) . . . . . . . . . .
"Safe Harbor" Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 4 - Treatment of Unlisted Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Addressing Unlisted Species in the HCP . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Deciding How to Address Unlisted Species . . . . . . . . . . . . . . . . . . . . .
2. Addressing Unlisted Species in the HCP and Permit . . . . . . . . . . . . . . .
3. Standards for "Covering" Species Under a Permit . . . . . . . . . . . . . . . . .
B. Challenges in Treating Unlisted Species . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3333333333333333333333333333334-1
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4-2
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4-4

Chapter 5 - Environmental Analysis and Documentation . . . . . . . . . . . . . . . . . . . . . . . . 5-1
A. General Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-1

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
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
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.

G.
H.
I.
J.

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
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
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
Permit Denial, Review, and Appeal Procedures . . . . . . . . . . . . . . . . . . . . . . . . 61. 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
Permit Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-29
Permit Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-29
Permit Transferals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-30
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 . . . . . . . . . . . . . . . . . . . . . . . .
A. General Permit Issuance Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Endangered/Threatened Species Permit Issuance Criteria . . . . . . . . . . . . . . .
1. Taking Will Be Incidental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Authorizing Take Associated With Mitigation Activities . . . . . . .
b. Authorizing Take for Scientific Purposes . . . . . . . . . . . . . . . . . . .
2. Applicant Will Minimize and Mitigate Impacts . . . . . . . . . . . . . . . . . . .
3. Will Ensure Adequate Funding/Unforeseen Circumstances . . . . . . . . . .

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TABLE OF CONTENTS (CONT.)
Section

Page

4. Will Not Reduce Likelihood of Survival & Recovery . . . . . . . . . . . . . .
5. Other Measures Required Will Be Provided . . . . . . . . . . . . . . . . . . . . .
6. Assurances That the HCP Will Be Implemented . . . . . . . . . . . . . . . . . .
Chapter 8 - Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7-4
7-5
7-5
8-1

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

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.
i

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

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 nonFederal 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.

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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
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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
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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?

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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
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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 nonwildlife 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
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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.
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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.
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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
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of permit issuance criteria found at section 10(a)(2)(B) of the ESA and 50 CFR Part 17.
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.

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Figure 1: Typical Processing Steps for a Low-Effect Section 10(a)(1)(B)
Incidental Take Permit Application

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Figure 2: Typical Processing Steps for a Section 10(a)(1)(B)
Incidental Take Permit Application Requiring an EA

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Figure 3: Typical Processing Steps for a Section 10(a)(1)(B)
Incidental Take Permit Application Requiring an EIS

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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

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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 areawide 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.

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).

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
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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.

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.

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).

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).

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

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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).

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.

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.

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.

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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.

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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.

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.

During the permit processing phase, coordinates with the appropriate FWS or
NMFS Field Office to amend or correct the HCP or associated documents, as
necessary. Also should provide the Field Office with additional information
necessary for the Services to respond to public comments when appropriate.

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
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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.

Coordinates review of HCP development with FWS or NMFS Law Enforcement
agents involved in enforcing permit conditions.

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).

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.

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.

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).

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.

For FWS, briefs the Regional Director, appropriate Assistant Regional Director,
ARD for Law Enforcement, and the Solicitor's Office concerning HCP issues as

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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.

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.
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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).

Processes application check.

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).

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.

Transmits Federal Register notices to the Office of the Federal Register for
publication (see Chapter 6, Section D).

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Files copies of any draft and final EIS with the Environmental Protection Agency
[see Chapter 5, Section A.4].

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.

Reviews and finalizes Set of Findings (unless finalized by the Field Office).

Prepares the Environmental Action Memorandum (EAM) for low-effect HCP
permit applications (see Chapter 6, Section B.2).

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.

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.

Coordinates with lead Region responsible for the species prior to issuance of the
permit to ensure agency-wide consistency for species that overlap more than one
FWS or NMFS Region.

Prepares permit and associated documents (IA, FONSI, ROD, EAM) for RD or
DRD signature, as necessary or requested (see Chapter 6, Section C.5).

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.

Sends Notice of Permit Issuance to the Office of the Federal Register for
publication on a quarterly or biannual basis.

Coordinates Freedom of Information Act (FOIA) requests.

4. Washington Office.

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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.

Assists in resolving issues or disputes when requested by the Regional Offices.

Briefs Director or other authorities or coordinates such briefings as necessary.

Prepares HCP, NEPA, and other related training and technical assistance to
Regional Offices and Field Offices, as needed.

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
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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.

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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
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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
(NMFS).
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
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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 subcommittees. 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 nongovernmental 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.

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
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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.

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.

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

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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.

Biological studies and data needed to assess project impacts;

NEPA requirements and the applicant's potential role in developing the NEPA
analysis.

Applicability of state endangered species law and requirements, and any other
Federal laws that may be applicable, if any.

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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;

Design of mitigation, habitat enhancement, or mitigation programs;

Reserve design criteria and assistance in population viability assessments, if
desired.

Methods for monitoring HCP progress and project impacts on affected species;

Biologically acceptable take limits and how to define them;

Criteria to track or determine success of the HCP; and,

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
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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
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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.

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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;

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;

Alternative actions the applicant considered that would not result in take, and the
reasons why such alternatives are not being utilized; and,

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.

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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).

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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.
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, "nonparticipants" 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,
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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.
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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
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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
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.

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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
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
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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.
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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
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 longterm 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?

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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

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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 highquality 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
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.

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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 loweffect 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

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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
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.

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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.

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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.

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.

Describe variables to be measured and how the data will be collected. Make sure
these are consistent with the objectives of the monitoring program.

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.

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.

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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.

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. 97835, 97th Congress, Second Session). Accordingly, Federal regulation requires such
procedures to be detailed in the HCP [50 CFR 17.22(b)(1)(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

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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.

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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.
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This means that in cases where the status of a species addressed under an HCP worsens, the
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.
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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.

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
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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.

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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
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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 longterm 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.
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.

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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
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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.
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
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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
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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
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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)
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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.
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)

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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
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.

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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
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associated documents and obtain a permit amendment to take the newly listed species. This
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.
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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), 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.

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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.

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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
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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
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
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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
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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
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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

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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;

Conducting joint environmental research and studies;

Conducting joint public hearings; and

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.

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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).

For NMFS, incidental take application instructions (Appendix 9).

This handbook, if appropriate (some applicants may find it too technical; although
it may be useful to experienced consultants).

List of candidate, proposed, endangered, and threatened species of wildlife and
plants for the prospective planning area.

List of appropriate local, state, and federal contacts, such as state conservation
agencies.

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General Permit Procedures - for FWS, 50 CFR Part 13; for NMFS, 50 CFR 217,
220, and 222 (Appendix 11).

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
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.
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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

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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.

For FWS, a permit application form (3-200) and fee (see Appendix 9). For
NMFS, an application according to the instructions in Appendix 9.

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.

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.

An Implementing Agreement, if requested by the applicant or otherwise required
by Regional Director policy (see Chapter 3, Section B.8).
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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.

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).

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.

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.

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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 "loweffect" 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
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).

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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.

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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-todate.
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
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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

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);

Pertinent dates (e.g., application receipt date, issuance and expiration dates,
report due dates, and revocation dates);

Permit authorizations and/or conditions;

Species involved;

Location of the authorized activities; and,

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.
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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:
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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).

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.

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.

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].

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.

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
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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
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
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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
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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

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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.

A detailed discussion of the effects of the action on listed species or critical
habitat.

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 nonFederal 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).

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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
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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 nonFederal 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 "loweffect" 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.

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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 Register 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;

For FWS, the application file number (PRT-

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;

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;

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;
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) as issued by LEMIS;

The name, address, and telephone number of a Service employee to contact for
further information; and

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
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
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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.
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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 restatement 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.

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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.

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.

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.

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.

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]
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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;

Decisions on requests for reconsideration should be signed by the Deputy
Regional Director (DRD);

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
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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
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not take listed species beyond the quantity authorized by the original permit, however. A
renewal request must:
o

Be in writing;

Reference the permit number;

Certify that all statements and information in the original application are still
correct or include a list of changes;

Provide specific information concerning what take has occurred under the
existing permit and what portions of the project are still to be completed; and

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.

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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
o

Comply with conditions of the permit or with applicable laws and regulations
governing the permitted activity; or
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 any 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)(1)(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

7-3

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 longterm 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

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.

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).

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)(l)(B) of the
ESA. In this handbook, also referred to as a section 10(a)(1)(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 R&star

Vol. 50, No, 118 I Iondav. September 30. 1985 1 Rules and Redations

39681

DEPARTMENT OF THE INTERIOR
Fish and Wlldllb Sstrlm

Endangmd and Threatened Wlldlite
and Plants; Prohlblttonsand P m M s
A ~ E M C Y :Fish

and Wildik Service.

Interior.
A m W

Finel rule.

rrrmmav: This Fish and WiHlffe
Service [Service) revises it^ regulations
to implement the incidental take permit
and other provisions of the 1082
amendments to the Endangered Species
Act (EAS)of la73. ' h e final mle is not
significantly different from the proposed
rule. The final nhe (I] provides, under
limited cirurnstancea. for permits to t'eke
endangered and threatened species
incidentatro, and not the purpose of,
atherwioe lawful activities, and (21 adds
s prohibition againat removing and
reducing te possession endangered and
threatened plants from areas under
Federal jurisdiction. An applicant for an
incidental tsktng permit must submit a
conservation plan that specifies: [I) 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 reeult in
the takings;and (41 why those

3961t2

F e d d ~&stm / Vot. so, Na. f 89

Monday, September 30, is8S j Rules and Rsgulalione

quotation from the Conference Report
on the 1982 a m e n d m e to the ESA.
This materiel was included in thevotice
of propoaed rulemaking because it -._
iliuminates in detail Congms' intentin
enacting the incidental take permit
provisions. Unfortunately, and
inadvertently, only the first paragraph of
by the permittee to successfully conduct the quatation was properly typeset to
the activities authorized by the permit.
show thet it was a quotation, creating
among many commenters the impression
EFFECTIVE D A T E October 3 4 1985.
that the rest of the material wae drafted
F mm
m MFORMITION CDNTner:
by the Service. In fact, aU of the material
Mr. Larry LaRochelle, Staff Biologist.
from the bottom of the third column of
U.S. Fish and Wildlife Service, Federal
48 l% 31417 through the top of h e first
Wildiife Permit Office, 1OOO N. Glebe
c d u m of FR 31419 is e quotation
Road, Room 811, khngtan. Virginia
from the Conference Repor! and
22201 (703/ 23.%1903].
therefore represents Congress' detailed
SUPPLEMEWARY INFOAMARDN:
views on incidental take permits. The
I. Background
Service apologizes for the
misunderstandings
that were mated by
On July 8.1W (48 FR M417b the
this typographical error.
Service published proposed regulations
to implement certain a8pects of the 1982 1. JointPromulgation of These
amendments to the Endangered Species
Regulations by the U.S. Fisb and
Act of 1973 {m).
The firrrk, an
Wildlife Service and ths National
amendment to section 1 q a J of the ESA
Marine Fisheriea Semice ( W S ]
1.6 U.S.C. 1539[a), allows permits for
Four ~ommentemurged the Service
takings of endangered species incidental and
NMFS to coordinate their efforte DO
to. but not the purpose of, otherwise
as to develop similar or identical
lawful activities. The second. addition of requirements
if each chose to develop
a new section 9(a)(2)(&) of the ESA, 10
its own regdations, to have MMF!3
U.S.C.153a{a][z)[B]. prohibits removal
and redaction to possession af protected adopt the Service's mgdatiom, or to
promulgate joint regulations.Certain
plants from areas under Federal
species of fish. whales, e e a 4 sea turtles,
jurisdiction. The July 8.1983,notice
and other marine species lis~edas
discusaed the need, purpose and details
endangered or threatened under the
of the Service's proposal and invited
ESA are under Ithe jurisdiction of MMFS
comments from tntemted partiee until
(50 CFR Parts 222 and 227). Ail of the
August 8,1983.
ESA-listed marine mammals are aubjed
The Service received comments from
to the Marine Mammd Protection Act
13 parties: 1 port authority, 2 Fedml
agencies. 2 electric utility organizations, (MMPAJ.however, which prohibib,
except for scientific research. any
3 conservation organizatians.and 5 oil
takings OF endangered or threatened
or gas corporations. Some comments
species becauee they are considered
were brief while others were lengthy.
"depleted"within the meaning of the
substantive. and analytical. All
M A , la U.S.C. 13Tua)[3)IB]. ESA
generally supported the Service's
incidental take permits therefore may be
proposed rule though various
available for only a few of the species
clmifications were sought and alkmate
under the jurisdicition of PWFS.
procedures and regulatory language
The Service agrees that coordination
were offered. T w o mmmenters
with NMFS on incidental take pennit
recommended h a t the Service's-h a l
iaeuea is Important. The Service has
rule be identical to the propoaed mle.
consulted with NMFS throughout the
Each comment hae been comidered in
process of drawing these regulations h
preparing this final d e . In aution. the
order to ensure that the r i a l reguladonn
Service has relied upon its eubstantial
take into account the special aspects of
experience in developing and
W S ' Bresponsibility for reguiating
implementing gmgrams affedhg
marine species and therefore are
endangered npecim. The ripi6cant
suitable for adoption by NMFS. The
comment8 pertinent to the Service's
Notice of Proposed-Rule are s u m n d x u d final regulations reflect ihia effort.
NMFS will coneider adapting the
and discuaaed below together with the
Service's regulations for apecies u d e r
Service's responses.
its juritidfction at a latm date.
11. Comments
2. San B m a Mountain Pennit as a
A. lncidantal Take Regudrftions
Model
The preamble to the proposed
The only incidental take permit that
regulations contained an extended
the Service has processed to dete ie
alternatives were not adopted. To issue
the permit the S e r v i s mud find that the
taking will be incidental, that the
a ppficant wiU minimize and mitigate the
impact of the taking, that the applicant
will ensure that here will be adequate
fund~ngfur the conservation plan, and
that appropriate measures will be taken

associated with residential and
c o m e r i d development on Ssn Bruno
Mountain jrr the San Francisco
metropolitan are&.Tbe legidathe
history of the 1982 incidental take
permit amendment states that the San
Bruno Mountain plan served as the
model for the emendments ta section
10(al of the ESA. K R Rep. No. 835,gltb
Cong., 2nd Sess. 31 IlQsz)(hereafter
"Conf. Rep. at " ) . Several
commenten asserted, however, that the
San B m o plan i s uncommonly mmplex
end controversial end is therefore not a
proper model f ~ the
r Service'n
regulations. These commentern cited the
difficulty of extrapolating from the San
Bruno experience to other situatiom and
activities,

Congress, not the Service. modeled
the aection lO(a) i m i k t e l take permit
amendment on the San Bruno Mountain
project. The courts that have reviewed
and upheld the Sen Bruno incidental
take permit a p e that Cangreas
intended h a t project to serve as e
model. See, e.g., F r i e d ofEndunged
Species v, lantzen, 78. F2d 078 (Qth Cir.
19831. The Service does, of course, have
the discretion and the respnnribility to
implement the requirements of section
30[a) in regulations tha! are not only
consistent with section 10(a], but which
are also flexible and versatile. In
drafhng the regulatians,the Service has
naturally drawn upon its experience in
processing and granting the San Bruna
permit.
Service believes that the
final regulations, which are largely
identical to the expreaa language of
section iO(a),will accommodate projects
that differ substantially from the San
Bruno project in eize; planned duratian:
t h number
~
of dfferent IocaI, State, and
Federal agencies that have jurisdiction
over some aspect of the project; or the
number of listed and unlisted species
that may be involved. The pmmise
offered by the incidental lake
amendment--a means of reconciling
conflicts which would othemrfee exist

between development and endangered
species-conaervation-is available to a
large variety of projects, pmvided they
protect and consene Be effect4
speciee.
3. An all-inclusive Wnal Rule
Several commentm encouraged the
Service to develop "mkbook"
regulationn thet wmId include wedfie
procedures. types of alteroatives to be
considered, detailed criteria and
definitiaaa. and a number of other itman
to cover the entire range nf incidental
take pennit application^ tbat might bs
filed. These commenters believed thir
approach would protect applicants from

Federal Register

1 Vol.

50.

arbitrary or inordinate requirements and
protect listed species from exploitation.
The Service recognizes that the
incidental take permit provisions will
have numerous and diverse
applications. and that the administration
of the provisions will require
considerable ingenuity and flexibility.
The wide-ranging experience of the
Service in managing fish, wildlife, and
plant resources has demonstrated,
however, that it is neither possible nor
practical to provide for every situation
that might occur through the
promulgation of detailed regulations
such as the commenten suggested.
Broader regulations will ensure that the
Service is able to handle all incidental
take situations that arise. The ServiCe
has therefore chosen to promulgate the
final regulations in relatively broad
terms consistent with the statutory
language and Congressional intent.
It should be noted that the Service
processed the complex San Bruno
Mountain incidental take permit
application and negotiated the
implementing agreement among the
involved parties without the benefit of
incidental taking regulations and solely
on the basis of the language of section
lo(a). as amended.
4. Consideration of Un!isted Species in
Conservation Plans
Several commenters addressed the
issue of whether a conservation plan
submitted in support of an incidental
take permit application may (or should
or must. depending upon the commenter]
consider the impacts of the proposed
activity on unlisted as well a s listed
species. While the proposed regulation
was silent on this issue, its preamble
quoted pertinent portions of the
Conference Report. That language
demonstrates Congressional intent that
treatment of unlisted species in
conservation plans be voluntary.
It also made clear however, that
incidental take permit applicants will
benefit in many, if not most, instances
from consideration of unlisted species:
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.
The Committee intends that the Secretary
may utilize this provision to approve
conservation plans which provide long-term
commitments regarding ihe conservation of
listed as well as unlisted species and longterm assurances to the proponent of the
conservation plan that the terms of the plan
will be 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
an approved conservation plan is

No. 189 } Monday, September 30. 1985 1 Rules and Regulations

39683

subsequently listed pursuant to the Act, no
respect to incidental take permits by
further mitigation requirements should be
requiring a non-jeopady finding (or a
imposed if the conservation plan addressed
jeopardy f i n d i g with reasonable and
- prudenlalterna@re_sthat
the conservation of the species and its
are
habitat as if the species were listed pursuant=-by
the
Federal
agency or
implemented
to the Act.
applicant) as aprecondition to issuance
[Conf. Rep. at 301. In other words, failure of a permit.
to consider a n unlisted species in a
Other commenters discussed the
conservation plan exposes the permit
interrelationship of section lo[a) and
applicant to the risk that if the apecies is section 7(b)(4], which refers to
subsequently listed. the activities
incidental taking identified in section
covered by the permit might have to be
7(a][~)c onsultations that have resulted
halted pending amendment of the
in "no jeopardy" opinions, including the
incidental take permit to incorporate the issue of whether section 7(b)(4]
newly listed species.
empowers the Secretary to recommend
The final regulations therefore do not
substantial alternatives to a proposed
impose a requirement that unlisted
project where a no jeopardy opinion has
species, whether candidate, proposed. or been prepared for the project a s
not be considerd in a conservation plan.
originally planned. Section 7(b)(4)was
The regulations do, however, refer
to the Act and section 7(0) was
added
explicity to b e option of considering
amended:
unlisted species in order to encourage
To resolve the situation in which a Federal
proponents of conservation plans to do
agency or a permit or license applicant has
so.
5. Interaction

of Sections, 7.9, and 10 of
the Endangered Species Act
Numerous commenters raised issues
concerning the interaction of the section
lola) incidental take permit provision
with the requirement in section 7(aJ(2)
for Federal interagency consultation on
actions that may affect listed species
and the prohibition in section 9 on
takings of listed species. These
comments were engendered in large part
by the fact that section 7 was also
affected by the 1982 amendments to the

been advised that the proposed action will
not violate section 7(a)[2)of the Act but the
proposed action will result in the taking of

some species incidental to that actionclear violation of section 9 of the Act which
prohibits any taking of a species. The Federal
agency or permit or license applicant is then
confronted with the dilemma of having a
biological opinion which permits the activity
to proceed but is. nevertheless,proscribed
from kcidentally taking any species even
though the incidental taking was
contemplated in the biological opinion and
determined not to be violation of section
7(4121

[H.R.

Rep. No. 567,97th Cong., a d Sess.
26 (1982)l.Section 7(b)(4) provides that
because incidental take permit
if section 7(a)(2)consultation results in a
applicants are private parties, no section "no jeopardy" opinion, yet the proposed
7 consultation will be required with
action would nevertheless involve
respect to a n incidental take permit and
incidental taking of a listed species but
associated conservation plan. This is
at a level low enough so that it would
clearly wrong, for any action undertaken not violate section 7(a)(2), the Secretary
must provide a written statement thaE
pursuant to such a permit would be a n
action authorized by a Federal agency,
(i)Specifies the impact of such incidental
the US.Fish and Wildlife Service, and
taking on the species,
the permit decision would therefore be
(ii) Specifies those reasonable and prudent
subject to the section 7(a)(2)
measures that the Secretaryconsiders
necessary or appropriateto minimize such
consultation requirement. Moreover,
impacts. and
Congress expressly linked incidental
(iii) Sets forth the terms and conditions
take permits with the consultation
(including,but not limited to, reporting
requirement by including one of the
requirements) that must be complied with to
section 7(a)(2)standards as a necessary
implement the measures specified under (ii).
criteriori for issuing a n incidental take
Section 7(0)(2) further provides that
permit. [Conf. Rep. at 29-30; H.R. Rep.
No. 507.97th Cong., 2nd Sess. 31 (1982)l. any incidental taking in compliance with
the terms and conditions set forfh in
The section 1o(a)(z)(l3)(iv)criterion,
section 7[b)(4)(iii) shall not be a taking
whether "the taking will.
prohibited by the Act or its
appreciably reduce the likelihood of the
implementing regulations.
survival and recovery of the species in
One commenter argued that the
the wild," is identical to the Service's
section 7(b)(4) "reasonable and prudent
regulatory definition of the section
7(a)(2)"jeopardize the continued
measures" specified to minimize the
existence of' standard (See 50 CFR
impact of the incidental taking can
402.03). Thus, section lO[a) reinforces
include substantial alternatives to the
the consultation requirement with
proposed action and that the Service

Act.
A few commenters asserted that

39604

Federal Redder

Vol. 50, No. 189

would therefore be obliged to
recommend alternatives to a proposed
project that would cause incidental
takes even though It meets the section
7(a](2) standard. The Service notes that
if consultation demonstrates that a
proposed action is likely to jeopardie
the continued existence of a listed
spedes. or result in the destruction or
adverse modification of critical habitat,
the Secretary must, under section
7[b)(3)[A],suggest "reasonable and
prudent alternatives" that would not
violate section 7[a)(2]1.Section 7[b)[3)(A)
Alternatives may involve substantial
changes in the routing and design of a
project so long as they can be
implemented in a manner consistent
with the intended purpose of the
proposed action. Section 7(b)[4]
reasonable and prudent measures, on .
the other hand, must be limited to minor
design changes that would not
substantially alter the project as
proposed. The Service therefore
disagrees with the commenter.
Section f o[a)(Z)(A)[iii)does require
that each conservation plan submitted
in support of an incidental take permit
application must identify and analyze
alternatives to the incidental taking and
discuss why they are not being utilimd.
This provision does not, however,
authorize the Service to impose one of
these alternatives on an applicant for an
incidental take pennit. Rather, without
the concurrence of the permit appLicant,
the Service's only recourse upon
receiving an inadequate plan is to deny
the permit application, Such a denial
must Iw in accordance with 5 13.21(d]
and will detail the reasons for the
denial. Parties so denied may ~ p p e athe
l
Service's decision in accordance with
!13.32, addressing the Service's reasons
therefore and may provide new
informatian or justification why the
action in question should not have been
taken.

One commenter urged the Service to
employ not only the jeopardy standard.
but also the adverse modification of

critical habitat standard of section
as a criterion for determining
whether to grant an incidental take
permit. The Service has not accepted
this comment because it was not
included by Congress as one of the
permit issuancc criteria in section
10[a]12][B). The Service agrees. however,
that since all incidental take permit
applications will be subject to section
'7(a)(21 conaultation. they would not be
approved if they resulted in the
destruction or adverse modificatian of
the critical habitat of a listed species.
7(a)[2)

Monday. September 30, I985

6.lntersction With Other Statutes
Several commenten expressed
concern thal the Servlce had exceeded
its statutory authority under the S A in
referring to the Fish and Wildlife Act of
1956 and the Fish and Wildlife
Coordination Act in the preamble to ?he
proposed rule [48 ER 314181. As
discussed previously in this notice, that
language i s in fact quoted from the
Conference Report on the 1982
amendments to the Endangered Species
Act, though it was inadvertently typeset
as if it were not a quotation. The

essential observation made by the
Conference Committee is extremely
useful: Individual species should not be
viewed in isolation. Neither ahould the
section 10(a) reqniremerts be viewed in

isolation from the other statutory and
regulatory requirements that may apply
to the proposed pmject. Section 1D(a)
does not itself expressly require
compliance with such laws as the
National Environmental Policy Act, the
Clean Water Act, or the Fish and
Wildlife Coordination Act. but it
provides an exceHent opportunity for a
project proponent to prepare and
implement a comprehensive. integrated
plan that addresses for the present and
for the future all of the various
requiraments that apply to the project.
In the words of the Conference
Committee, section 10(a] will
"encourage creative partnerships
between public and private sectors and
among governmental agencies in the
inkerest ol species end habitat
conservation." [Conf. Rep. at 301.
7. Monitoring Implementation of
Conservation Plans
One commenter argued that both the
applicant and the Service should
monitor the implementation of a
conservation plan in order to ensure that
i t s requirements and those of section
10(a) are met. Such monitoring can also
serve to identify areas in which
modification of a conservation plan may
be necessary, particularly with
incidental take permits of long duration.
The Service agrees. Sections
17.22(b](l][iii](BZ1?.22[b](3),
17.32(b]{I][iii](B),and 17.32[b)(3) have
therefore been revised to require that
conservation plans specify the
monitoring measures to be used and to
authorize imposition of necessary
monitoring as a condition of each
permit.
Modification or Conservation Plans
The same commenter noted that the
p~oposedregulations contained no

8;.

express provisions pertaining to
modifications in conservation plans

/ Rules and

Regulations

required by changed or unforeseen
circumstances. The Service agrees that
such a provision is needed. As stated in
the Conference Report:
. . circumetances and information may

. ..

change over time snd
the osiglnal pian
might need to be m i r e d . To address this
situation. the cornmiltee expects that any
ptan approved for a long-term permit wlll
contain e pmcedure by which the parties will
deal with unfarseen cwcurnstances.

{(Sonf.Rep. at 311. The Service believes
that, while such provisions may be of
most value for long-term permits,
circumstance8 requiring modihation ot
a consenation plan could arise even
during the life of a permit with a
relatively short term. Incorporation of
modification procedures into a
conservation plan at the outset should
ensure both that the affected species
will be conserved regardless of changed
conditions and that the applicant's
activities are not unduly interrupted
when the new conditrons take effect.
Sections 17.22[b)(l)(iii)[B]and
17.32(b}[lHiii)(B)therefore require
conservation plans to include specific
measurea for addressing unforeseen
circumstances and 0 9 3 7,22(b](Z][iii)and
17.32(b][2)(iiE)make the existence of
these measures a precondition to permit
issuance.
9. Other Elements of Cansewation Plans

Several partien commented that the
statement in section lO(a](Z](A](iv) of
the Act that a consenration plan must
include "such other measures that the
Secretary may require" obliges the
Service to include in these regulations a
full list of the measures the Service may
so require. Other commenters asked that
examples of such measures be included
in the regulations. while still others
asaerted that this provision muat be
deleted from the regulations. Still
another commenter suggested that this
provision will be workeble only if the
Service is available far pre-application
consultation and advice as to measuree
that might be required. The Service
agrees with he latter commenter while
respectfully disagreeing with the other
cornrnenters.
As noted previou~lyin this notice, the
Service has declined to promulgate
exhaustive, "caokbook"regulations
detailing every possible element that
could be required in a conservation
plan. The variety of projects that might
be the subject of a conservation plan ia
wide, and featuree appropriate for some
conservation plans will be unworkable
for others. It is unrealistic to think the
Sewice could develop a list of
conservation plan elements applicable
to all potential incidental take permits.

Federal R e s t e r f Vol. 50. No. 180
Congress. however. modeled section
fqa), at least generally, after the San
Bruno plan and was well aware that the
Service and the San Brupo permit
applicants engaged in extensive preapplication discussions extending well
over a year. T h e Service believes a
sensible and practical reading of section
lO(a)[Z)[A)(iv] is that the unique and. in
most cases, fairly complex nature of an
incidental take permit will require
discussions between a potential
applicant and the Semite. Thmugh this
process, the Sentice will identify
specif~cmeasures, in addition to those
listed in eection 10[a)(2)[A)(i) through
[iii], that are necessary and appropriate
for the praposes of the coneenTation
plan.
10,Public Notice of and Public Comment
on Incidental Take Pennlt Applications
Section l@a)(2)@)of the ESA
mandates an opportunity for public
comment prior to any decision on an
incidental take permit application.
Several commentem expressed concern
that the proposed replations did not
~dequatelyimplement this requirement,
They noted that section 10(c] also
requires public notice and comment for
any section 10 endangered species
permit application.
The Service agrees that the ESA
requires notice and an opportunity for
comment far these permit sppiicntions
and has revised the introductory
paragraphs to 9 0 17.22,17.23 and
17.32(b)accordingly.
11. Permit Conditions
One comrnenter argued that the
Service is under a duty, in imposing
reporting requirements as a permit
condition, to rely upon existing reporting
requirements to the maxlmum extent
practicable. This comrnenler relied upon
legislative history indicating that
reporting requirements imposed under
section 7(b)[4),to allow monitoring of

the impact of incidental taking identified
in section ?(a)(2]consultaf~on,should be
incorporated into existing reporting
requirements where possible. [MR.Rep,
Ro. 567.97th Cow., 2nd Sess. 2627
(198:)j. The Sewice agrees that this
Cong-essional directive is equally
applicable to reporting requirements
established for Incidental take permits,
as reflected in 8 5 17.22(b)(3) and
17.32[b)(3)of the final rule.
Another party stated that the
reference in proposed 4 5 17.22[b)[3) and
17.32(b)(3] to "terms and conditions . . .
necessary to carry out the purpose8 of
the permit" might convey the impression
that tems and conditions designed to
ensure compliance with the species
conservation goal of the conservation

Monday, September 30, 1985 / Rules and Regulations

plan would not be appropriate. In order
to make clear that permit conditions
relaling to consenration of the affected
species will be imposed whe~e
necessary, the phrase "and the
conservation plan" has been added to
final 8 9 17.22[b][3) and 17.32fbIt3).
12,Duration of Pernits
Congress clearly intended to provide
for long-tern incidental take pennits
where needed. [Cod. Rep at 311. One
eommenter was concerned. however.
that the proposed regulations improperly
implied that the only issue involved in
deciding on a request for 8 long-term
p e m i t is whether fie applicant needs
the assurance ofa long-term permit in
order to obtain finenclng. The Service
did not intend to imply that financing of
was &e only issue involved
the
settu the durstion of the pe
The Conference Report states:
Significant development projects often take
years to complete
and
s ~ p l l c a n t may
e
need long-term permits. In
this situation, and in order to pmvlde
sufficient incentiv~sfor the private sector to
particlpste ln h e development of such longterm consen'atlon plans, plans which may
involve the expenditure of hundreds of
thousands if not millions of dollars, adequate
assurances rnulrt be made to the Einandal and
development communltie~that n section 1Wa)
pcmht can be made available for the Ilk of
the pmlect.
The Secretav is vested with broad
digcralion in carrying mrt the conmervatim
plan provilion to det-he
the appropriate
langth of any section 10[e) permit issued
pursuant to this provision in light of all of the
facts and circurnlrtances of each individual
case. Permits of 30 or more y & ~ 8durat~on
may be appropriate in order to prov~de
adequate asaurences to the privake sector to

39685;

end its conservation plan covers over
3 0 ~awm.
1
including the great majority
OF the habitats of the species. Other
inctdental take permit applications may,
however. involve considerably shorter
t e m s and involve achvities that would
affect smaller areas and only porlims or
a species' range. The Service belleves
that Congress did not intend te exclude
projects from the incidental take
pm\~isionsof section 10(a) merely
because the prajects were of more
limited duration or geographical scope.
Final 5 5 17.22(b1[2)and 17,32(h)(2]have
been revised to make this explicit. In
particular, the Director will consider
whether the mitigation measures in the
conservation plan and the funding lor
implementing the plan are
c~ommensuratewith the duration of the
project and its geographic scope,
Including the amount of listed species
habitat that is involved and the degree
t o which listed species and their
habitats are affected. Mitigation

throughout the entire range of a listed
species probably would net be requiFed
for a praposed project that would sfiecr
and
only a small portion of that
have a minor impact on the species as a
whole. That a project might be
completed within a short time and affect
only a portion of a apecier' habitat
wo&-J not, however, relieve the Director
of hitl duty under sections 7[a]/2) and lQ
(e){z)(B)(iv) of the Act end
g 8 17.22(b1[21(iv1and 17.32(bI[ZI(iv)of
the regulations to ensure that no
jeopardy to the species would ensue
from issuance of the ~ e h t
14, Objection to Permit issuance

Section 17.22 contains explicit
provisions for objecting to the issuance
of an an endangered species permit and
for notification to objectors of the
impending issuance of hat permit. One
commenter suggeeted that 5 37.32 be
revised to include an objection
provision. The Service has not accepted
this suggestion because threatened
species ere less vulnerable lhsn are
endangered species to potential adverse
impacts from permitted ae!ivities.
Advance notice of permit issuance is
[Conf. Rep. at 3 3 . Final # 17.22(b](4Jand thus not necessary.
17,32[b][4) have been revised lo be
15. Appeals
consistent with the Conference Report.
Several commentere noted the need
13. Permita for Activities of Short
for provisions for appealing the
Duration andlor Limited Scope
suspension or revocation of .a perarlt or
the tems or conditions of s permit.
A related issue concerns permits for
takings of listed epeeiee incidental to
There should be cansidereble contact
and discussion between an applicant
activities that will be relatively short in
duration andlor that will affect a Limited and the Service both prior to and during
area that comprises only a small portion the Service's review of an applicalion
for sn incidental take permit. Should o
of a listed species' entire range. The
term of the San Bruno permit is 30 years
pemit nonethelese be issued containing

commit to long-term funding for tansentation
activiliw or lo~g-termcommitments to
restrictions on the usa of land. It iu
r~cognizedthat in leauing such pemits. h e
Secretary will. by necegsity, consider the
poes~blepositive and nepative effects
assoclaled with permits of such duration.
The Secretary. in determining whether to
issue a long-term permit to carry oul a
conservation plan should consider the extent
to which the conservetion plan is likely to
enhance the habitat of the listed specie* or
increase the long-term survivebil~tyaf the
speciea or ~ t ecacryetem.
s

No. 189 1 Monday, September 30, 1985 I Rules and Regulations
terms or conditicns unacceptable to the
permittee. or shoulda permit be
susgended or revoked during its term,
the permittee may appeal the action
under thc provi~ionsof 50 CFR 13.32.

4. Explanation of "Remove and Reduce
to Possession"

while no commenter raised the issue,
the Service believes that an explanation
of its interpretation of the phrase
"remove and reduce to possession" will
be benef cial. Based upon the legislative
1. Exemption for Certain Official Duties
history of the 1982 amendments, the
Sewics has concluded hat section
An exemp!ion from the P I7.6l[c][l]
9(a](Z)[B)was intended ro pmscribe h e
prohibition on removal and reduction to
removal of an endangered plant when
possession of endangered plants From
combined with a taking of possession
areas under Federal jurisdiction has
Accordingly, a person who removes an
been added at !17.61(c)[23 to allow
endangered plant from its location on B n
certain designated officials to care for.
area under Federal jurisdiction and
dispose of. or salvage specimens
holds it as histher own would violate
without a permit when acting in the
section 9 of the ESA. Examples of this
course of their official duties.
activity waold be plant coliectors,
Exemptions from the 5 17.6l(c][l]
persons sezkir~a transplant to their
prohibition have been added at
H 5 17.61(c)(3)and f 7.n(b], which a l i ~ o m property, and thosegathering seeds
or cuttings. The destruction of a plant on
quafified employees of State
an area under Federal jurisdiction
conservation agencies,party to a
Cooperative Agreement with the Service would not, however, be a violation of
section 9 of the ESA, since no taking of
in accordance with section b(c] of the
possession would have occurred.
ESA,to conduct ths activities specified
in that Cooperative Agreement.
Removal incidentto purposes other
than taking of poasaasion i s
not
2. Describing Lucation of RemocaI and
proscribed,
An
example behavior not
Reduction to Possessior, in Permit
prohibited would be development
Application
activities that physically displace an
endangered plant. Theae activities
Existing 8 Q 17.62(a)[l][iii]and
would not violate
1?.72(a](l)(iii] require applicants for
of the ESA,
permits to conduct otherwise prohibited
A second issue is whether a violation
activjties with respect to listed plants to of the ESA occurs when a person
.
describe the location from which the
receive0 plant that has been illegally
plants were or will be taken. The
reduce to possession by someone else.
Service proposed to revise these
Section 9(a](l)of ESA, which Iists
sections to require further infarmation
prohibited actions in regard to
where removal and reauction to
endangered fish or wildlife. makes it
possession of a listed plant h o r n a n area unlawful to possess such fish or wildlif5
under Federal juiisdiction would be
after an illegal taking or importation.
involved. Comment8 received an this
Thia prohibition applies whether or not
aspect of the proposed regulations
the fish or wildlife possessed are being
indicate that separate treatment of the
transported in interstate conlmerce or
latter information requirement is
were received in intrastate commerce.
needed. The final regulations therefore
section 9:a)(2] of the ESA., which sets
include new 5 5 17.62[a)(l)fiv]and
farth prohibited acts with regard to
17.72[a][l)[iv] that require separate
listed plants, does not prohibit their
information with respect to removal and possession after an illegal taking or
reduction from an area under Federal
importation. It does prohibit their receipt
jurisdiction.
or shipment in intentate or foreign
3.Removal and Reduction to Possession commerce and in the course of a
commercial activity. but does not cover
of Seeds and Cultivated Plants
purely intrastate comrnzrcial activities
A few comrnenters obsewed that the
or non-commercial interstate shipment
proposed regulations did not appear to
and receipt. However, the Lacep Act
apply to seeds and cultivated plants,
amendments of
make it unlawful
which are treated in # j 17.82(a](2) and
for any person "to import, export,
17.72[a)[2]. This was an inadvertent
transport, sell, receive, acquire, or
omission. Final 53 17,62(a)[Z](v)and
purchase any fish or wildlife or plant
17.72[a)[Z)(v] contain the same localion
taken or possessed in violation of any
information requirements with respect
law. treaty. or regulation of the United
to removal and reduction to po~session States. . ." 16 U.S.C.3372[a][1). Thus.
of seeds and cultivated plants from an
while receiving an unlawfuHy taken
area under Federal jurisdiction that are
endangered plant may not violate the
included in $4 17.62[aJ(l](iv)and
ESA. it would violate the Lacey Act, as
l7.?2(a][f](iv] for listed plants.
amended.

III. Mfscellaneous

Section 13;12(b) is amended by adding
permit for incidental taking now
available at 17.~(h)[l].
Sections f7.22tc) and f f . 3 2 [ c )are
redesignated as Ti'.22[a1(3) and
17.31(a1(3]. respectively.. end altered
slightly to make them consistent with
each other and to make clear that each
permit issued pursuant to these sectlons
shall contain a condition requiring
reporting of escaped wildlife covered by
the permit.
New 50 CFR 17.62(a)[3)(iii)and
1?.72[a][3](iii) are added in compliance
with the Paperwork Reduction Aet. 44
u.SaC.3507,
he

RequiFed Determinations
The Service has determined that these
Einal regulations are categorica11~
excluded for further National:
En\.iromental PoLcy Act {KEPA)
requirements. Part 510 of the
Departmental Manual. Chapter 13
Appendix 1, section AI31 ca tegoricall~
excludes the ifiguance of regulatory
procedures when the impacts are limited
to administrative or techno!ogical
effects.
f i e Department of the Interior hes
determined that this Is not a major rule
under Executive Order 12291. nor does it
on a
have a significant economic
substantial number of small entities
under the Regulatory FlexibilityAct,
The potential
are not
identified a s small business in the
Regulatory Flexibility Act. The Service
that fewer than
applications wjHbe
The Determination of Effects on this
fmm the
proposed rule is
identified mder the sectim
*,FO

NmER

FOflMAf10

Information Collection
The infomalion collection
requirements contained in this Part 1 7
have been approved by the Oflice d
Management and Budget under 44 U.S.C.
3507 and assigned clearance number
101843022.

List of Subjacts
50 CFR Part I3

Administrative practice and
procedure. Exports.Fish. Imports,

PenalBes. Reporting and recordkeeping
sequirementa, Wildlife.
5 0 ~ F X ~ o r t 1 7 'Endengemd and threatened wildlife,
Fish, Marine mammals, Plants
[agriculture] Regulations promulgationFor the reasons set out in the
preamble, Subchapter B. Chapter 1 of

Federal Ragister f Vol. 50, No. 189 1 Monday, September 30, 1985
Title 50, Code of Federal Regulations is
amended as follows: '

carrying out of an otherwise lawful
activity.
.

PART I ~ E N E R A LPERMlT
PROCEDURES

3.Section 17.22 is revised to read a s

follows:

The authority citation for Parl 13
continues to read as follows:
Authoril~18 U.S.C. 42: sec. 4, Pub. L. 91-79
55 Stat. 1074 (18U.S.C. 3373): sec. 7. Pub. L

p 17-22 Permit. for siantlfit purp-

U.S.C, 3376):sec. 3,
40 Stat. 755 118 U.S.C. 704):
sec. 3(h)[8),Pub. L O W 3 1 6, BZ Stat. 31x2 (18
U.S.C. 7fZ):aec. 2. SQ Stel. 251. as amended
by sec. 9. Pub. L.954316.92 Stat. 3114 (15
U.S.C. 668ak sec. 102, 78 Slat. 73 119 U.S.C
1202). ''~ch;dule 1. Part ISD,~ e a b n a t eZ(d).
Tarirf Schedules of ihe U n i ~ e dStates": sec.
9(db Pub. L. 93-205. 87 Stat. 893 (16 U.S.C.
rYae(df1:sec. 6(a)(1]. Pub. L -15s. 93 Stat.
1 2 3 (16 tJ.S.C. 1537a); EO. 119I1,41Fl?
15683, 3 CFR,1976 Comp..p. 112:sec. 10, Pub.
L 93-205.87 Stat. 898.as amended by secs. 2
and 3, Pub.L 84-359, BD Slat. 3781); sec. 7.
Pub. L.4 6 3 5 9 , W Stat. 411 and 912:sec. 5.
Pub. L. 9 3 3 2 ,92 Stal. 3760;sec. 7, Pub.L. 96159.93 Stat. 1230 (16 U.S.C.15391: scc. 11,
Pub.L 9>205.87 S!al. 897. as amended l
q
sec. 6[4), Pub. L 95432.92 Stet. 3781 116
U.S.C.35w[b){2)[f)):
aec. 13(d]. 8s Stat, gC5,
amending 85 Stat. 480 (16 U.S.C. 742j-I): Title
1,set. 112,Pub L. 92-522, 86 Stat. 1M2, as
amended by T~tle11, a a c zOi(e),Pub. L W
470.94 Slat. 2241 (16 U.S.C. 1382): 65 Stat. 290

applicat~on,the Director may issue a
pemit authorizing any activity
otherwise prohibited by 4 17.21, in
accordance with the issuance criteria of
this sectron, for scientific purposes. far
enhancing the propagation or survival,
or for the incidental taking of
endangered wildlife. Such permits may
authorize a single transaction, a series
of trnnsactions. or a number of activities
over a apecific period of time. [See
5 17.32 For permits for threatened
species.) The Director shall publlsh
notice in the Federal Register of each
application for a permit that is made
under this section. Each notice shall
invite the submission from interested
partles, within 30 days after the date of
the notice. of written data. views, or
arguments with respect l o the
application. The 30-day period may be .
waived by the Director in an emergency
situation where the life or health of a n
endangered animal is threatened and no
reasonable alternative is available to
the applicant. Notice of any such waiver
shall be publi~hedin the Federal
Register within l o days following
issuance-of [he permit.
[a)[I)Applicatron requireme~~ta
for
perm]fsfop scientiric puqoses or for rhe
enhancemerl t of propngotion or survivul.
Applications for permits under this
paragraph must be submitted to the
Director, U.S.Fish and Wildlife Service.
Federal Wildlife Permit Office, 1OOO N.
Glebe Road, Room ell, Arlangton,
Virginia 22201. by the person wishing to
engage in the activity prohibited by
17.21-Each applicaiion musi be
submitted on an official application
(Form 3-2001 provided by the Service
and must include as an attachment, all
of the following information:
[i) The common and scientific names
of the species sought to the covered by
the permit, as well as the number, age,
and sex of such species. and the activity
ought to be authorized (such as taking,
exporting. selling in interslate
commerce]:
Iii)A statement as l o whether, at the
time of application, the wildlife sought
to be covered by the permit [A) is still in
the wild. (B] has already been removed
from the wild, or [C]was born in

97-78.95 Stat. 1078 (16

Pub. t 651&.

131 V.S.C. 483[a]].

5 13-12 [Amendad]
1. Amend 5 13.12fb)by removing the
language a! the entry for permits under
5 17.22 and inserting the following
3 13,12informaf ion requirements on
permit applications.
"

[bJ '

Scienlilic, enhancemeni of propagation or
citrr-ival. incidentaf taking fur wildlife.

PART 17--ENDANGERED AND

THREATENED WILDLIFE AND
AMENDED]

PLANT-

Accordingly. under the suthority of 18
U.S.C. 1 5 3 W 9 ,Part 17. Subchapter B of
Chapter 1,Title 50 of the Code of
Federal Regulations, is amended as set
forth below:
1. The authority citation fur Part 1 7
continues to read as follaws:
Aulhdky: Pub. L.93-205. B7 Stat. 884. Pub.
L 94-359; W S t a t . 9 l l ; Pub. L 9-2.
g2Stat
3751; Pub. L W-154.63 Stat. 1225;Pub. L.07904.96 Stat. 1411 (16 U.S.C. 1531. ei seq.).

unless otherwise noted.

6 37.3 [Arnmnd+dl
2. In S 17.3 add, in alphabetical order.

the foFtowinp definition:
.

"lncidental taking" means any taking
otherwise prohibited, if such taking is
incidental to, and not the purpose of, the

anhanetmsnt of propagation or survival, or
for Incidental taking.
Upon receipt of a complete

captivity:
(iii) A resume of the appiicant's
attempts to obtaln the wildlife sought to

1 Rules and

Regulations
-

3968;

-. - -

be covered by the permit in a manner
which would not cause the death or
removal from the wild of such wildlife:
[iv] If the wildlife sought to be
covered bv the permit has elready been
removed from the wild. the country and
place where such removal occurred: i f
the wildlife sought to be covered by the
permit was born in captivity. the
country and place where such wildlife
was born:
[v] A complete description and
address of the institution or other
facility where the wildlife sought io br
covered by the permit will be used,
displayed, or maintained;
[vi) If the applicant seeks to have lilt
wildlife covered by the permit, a

complete description, including
photographs or diagrams. of the
facilities to house andlor care for the
wildlife and a resume of the expericnt:r:
of those person who will be caring for
the wildlife;
(vii) A full statement of the reasons
why the applicant is justified in
obtaining a permil including the details
of the activities sought to be authorized
bv the permit:
[viii) If the applicalion is for tlle
pllrpase of enhancement of propagation.
a statement of the applicant's
willingness to participate in a
cooperative breeding program and to
maintain or contribute data to a
studbook
[ i x ) The informalion collection
requirements contained in this
paragraph have been approved by the
OfficeofManagement and Budget undct
44 U.S.C.3507 and assigned Clearance
Kurnber 1M&0022, This information is
be~ngcollected to provide information
necessary to evaluate permit
apphcations and make decisions,
according to criteria established in
various Federal wildlife and plant
conservation statutes and regulations,
on the issuance or denlal af permits. The
obligation to respond is req~iredto
obtain or retain a permit.
(2) Irsuance crilerja. Upon receiving
an application completed in accordance
with paragraph (a)[l) of this section, the
Director will decide whether or not a
pemlt should be issued. In making this
decision, the Director shall consider, in
addition to the general criteria in
13.21 j'oj of this subchapter, the
following factors:
(i]Whcther the purpose for which the
permit is required is adequate to justify
removing from the wild or othcnvise
changing the status of the wildtife
ought to be covered by the pemit:
(ii) The prabable direct and indirect
effect which issuing the permit would
have on the wild populations of the

39888

Federal Register

rvildlife sought

Vo!. 50, No. 189 1 Monday, September 30. 1BS5 I Rules and Regulations

be covered b! the

permit:
{iii]Whether the permit. if issued,
would in any way. diredly or indirectly.
conCicl with any known program
intended to enhance the survrval
probabiljt~esof the population from
which Ithe wildIIfe sought to be covered
ty the p e m i t was or would be removed:

to be utilized; and (D)
guch other
measures that the Director may require
as being necessary or appropriate for
purposes of the plan:
{iv] The information co!!ectiun
requirements contained in this

paragraph have been approved by the
Ofice of Management and Budget under
44 U.S.C. 350: and assigned Clearance
(iv)Whether the purpose fsr which
Number l O l W 2 2 . This information is
Ibe permil is required would be Iikely to
being collected to provide information
reduce the threat of extinction lacing the necessary to evaluate permit
species of wi!dlife sought to be covered
app!ica?ions.This information will be
by the permit
used to review permit applicatians and
Irl The opinions or rriews ofscientists make decisions. m~~llrdlng
to criteria
or other persons or organizations having established in variow Federal wildlife
c.~pcrt~se
cuneerning the wildhfe or
and plant cnnsewatian statutes and
olker matters germane to the
regulations. on the issuance or dcnial of
dpplication: and
pemits. The obligation to respond is
(vi) Whether the expertise, IdcUities.
required 80 obtain or ~ t a i n
a permit.
or other resources available to the
(2)Issuonce cr~reria.Upon receiving
applicant appear adequate ta
an application completed in accordance
surce;shl!y accomplish ths! objectives
with paragraph (b][l)af this sect:an. the
$!,?led In the application.
Director wili decide whether or not a
(3j ~'~>rm:t
~und~!rons.
In addition to
permit should 'be issued. The Director
tile generd conditions set forth in Part
shall consider the general criteria in
t j uE this st~bchapter,every permit
8 13.21(bl of this subchapter end shall
issued under this paragraph shall be
issue the Pcmit if he find8 that: li) The
sr~hjectto !he special condition that the
taking wiIl be incidental: {ii) the
escape of living wildlife covered by the
applicant will, to the maximum extent
permit shall be immediately reported to
practicable, minimize and mitigate the
the Service office designated in the
of such
(iiilthe applicant
permit.
will ensure that adequate funding for the
(I)
Dura!ion ofpermi~s.
The duration
conservation plan and procedures to
of Permits issued under this paragraph
deal with unforeseen circumstances will
sha: t be desima~edon the face of the
be provided: {ivjl &e taking wi:I nor
I
permil.
appreciably reduce the likelihood of the
(blla) Ap;Iication mqilirements for
surnval and recovery of the species in
: ~ e , - ~ l i for
t s ificidznfaltoking.
the wild; (v) the measures, if any.
hppl~cationsTor permits under this
required under subparagraph
paragaph must be submitted to the
@)tll(iiil[~)of this section
be met:
nlreclor, U.S. Fish and Wildlife Scrvice,
and [vi] he has received such other
Federal Wildlife Permit Office. 100Q N.
~ssurances,
as he may reqsiw that the
Clebe Road. Room 611. Arlington.
plan
be implemented, In making his
Lirglnia 22201, by the person wishing to
decision, he Dfr,uctorehafl
consider
e!lgage in the activity prohibited by
the anticipated duration and geographiG
5 17.21[c). Each application must be
scope of the app!icant's planned
submitted on an officiaI application
activities. including the amount of listed
{Form 3-2001 provided by the Service
species habitat h a t in bvoIuedand the
and must include as an attachment a11 of degree to which listed species and their
!he following information:
habitats ere affected.
(il A complete description of the
(3) Permit conditions. In addition to
activity sought to be authorized:
the genera1 conditions set forth in Part
[ii) The common and scientific names
13 of this subchapter, every permit
of the species snzgghi to be covered by
issued under this paragraph shall
the permit, as well as the number, age,
contain such terms and conditions as
and sex of such species, if known;
the Director deems ~ecessaryor
( i i i j A conservation plan that
appropriate to carry out the purposes of
specifies: (A) The impact that will Ilbly
the permit and the conservation pian
result from such taking; (B)what steps
Includi~g,but not limited to. monitoring
the applicant will lake to monitor,
and reporting requirements deemed
minimize. and mitlgate such impacts, the necessary for determining whether such
fund~ngthat will be available to
terms and conditions are being complied
implement such steps, and the
with. The Director shall rely upon
procedures to be used to deal with
existing reporting requirements to fie
unforeseen circumstances; (C] what
maximum extent practiceble.
altemahue actions ia such taking the
(41Duration qfpesmits. The duration
applicant considered and the reasons
of permits issued under this paragraph
why such alternatives are not proposed
shall be sufficient to provide adequate

assurances to the permittee to commit
fundtng necessary for the activ~ties
authorized by the permit, including
conservation activities and land use
restrictions. In determining the duration
of a permit, the Director shall consider
t h durat~on
~
of the planned activities. as
wall as the possible positive and
negative effects associated with permits
of the proposed duration on listed

species. including the extent to which

the conservation plan will enhance the
habitat of Listed species and incease
the long-tern sun-lvabitity of such
species.
(c] Objection to permit issironce. [I
) in
regard to any notice of a permit
application
in Gle Federal
Register, any interested party that
objects to the issusnce of a permit. in
whole or part. may, during the
comment
specified in the
notificationthe final 8ction to
b, taken on the app~ication.A
req,est shall be madg far each
permit application. Such a request shall
the servicebs
permit eppliation
number and state the reasons why that
p r t y believes the applicant does not

issuance crrkeriaaontalnedin

and 17.22 this subchapter or
other reasons why the
should not
gj

,,,issued.

[Z]If the Service decides to issue a
permit 'Ontray to objections received

~~~~~~~~~~~~
2iast
ten days prior to issuance of the permit,
make reasonable efforts to contact by
telephone Or other expedient
any
party who has made a request pursuant
to ~ " ' ~ 8 r atcH1l
~h
this
and
inform that perty of t h ~issuance
:
of the
permit. HoweueL the
may
reduce the timeperiod Or dia~enseIn'lbh
such nozice if it determines that time i s
Ihe essence end that delay in
issuance of the pemft would: [i) Harm
the specimen Or population involved; or
(ii) unduly hinder the action3 authorized
mderthe permit*
(3) The Service will nutify any party
filing an objection and request for notice
under paragraph [c)[1) of this section of
the final action taken on the application,
in writing. If h e Service has reduced or
dispensed with the notice period
referred to in paragraph [c][2) of this
section, i t will include its reasons
ltherefore in such written notice.
5 17.23 IAmnrdadl
4. The introductory paragraph of
5 17.23 is revised to read as follows:

Upon receipt of a complete
application, the Director may issue 3
permit authorizing any activity
otherwise proMbiied by 5 1721,in

Federal Register / Vol. 50, No. 189
accordance with the issuance criteria of
this section in order to prevent undue
economic hardship. The Director shall
publish notice in the Federal Register of
each application for a permit that is
made under this section. Each notice
shall invite the submission from
interested parties, within 30 days after
the date of the notice, of written data,
views, or arguments with respect to the
application. The 30-day period may be
waived by the Director in an emergency
situation where the life or health of an
endangered animal is threatened and no
reasonable alternative is available to
the applicant. Notice of any such waiver
shall be published in the Federal
Register within 10 days following
issuance of the permit.
I

5. 17.32 is revised to read as follows:

9 17.32 Pcnnits-gentrsl.
Upon receipt of a complete
application the Director may issue a
permit for any activity otherwise
prohibited with regard to threatened
wildlife. Such permit shall be governed
by the provisions of this section unless a
special rule applicable to the wildlife,
appearing in 8 17.40 to 17.48. of this part
provides otherwise. Permits issued
under this section must be for one of the
following purposes: Scientific purposes,
or the enhancement of propagation or
survival, or economic hardship, or
zoological exhibition, or educational
purposes, or incidental taking, or special
purposes consistent with the purposes of
the Act. Such permits may authorize a
single transaction, a series of
transactions, or a number of activities
over a specific period of time.
[a)[l)Application requirementsfor
scientificpurposes, or the enhancement
ofpropagation or survival, or economic
hardship, or zoological exhibition. or
educutionalpurposes, or special
purposes consistent with thepurposes of
the Act. Applications for permits under
this paragraph must be Submitted to the
Director, US.Fish and Wildlife Service,
Federal Wildlife Permit Office,
N.
Glebe Road, Room 611,Arlington,
Virginia 22201,by the person wishing to
engage in the prohibited activity. Each
application must be submitted on an
official application [Form 3-200)
provided by the Service, and must
include, as an attachment, as much of
the following information which relates
to the purpose for which the applicant is
requesting a permit:
(i) The Common and scientific names
of the species sought to be covered by
the permit, a s well as the number, age,
and sex of such species, and the activity
sought to be authorized [such a s taking,

Monday, September 30, 1985

exporting, selling in interstate

commerce);

(ii] A statement'as to whether, at the

time of application, the wildlife sought

to be covered by the permit [A) is still in

the wild, (B) has already been removed

from the wild, or [C) was born in

captivity:

(iii) A resume of the applicant's

attempts to obtain the wildlife sought to

be covered by the permit in a manner

which would not cause the death or

removal from the wild of such wildlife;

[iv) If the wildlife sought to be

covered by the permit has already been

removed from the wild, the country and

place where such removal occurred; if

the wildlife sought to be covered by

permit was born in captivity, the

country and place where such wildlife

was born:

. [v) A complete description and

address of the institution or other

facility where the wildlife sought to be

covered by the permit will be used,
displayed, or maintained
[vi) If the applicant seeks to have live
wildlife covered by the permit, a
complete description, including
photographs or diagrams, of the
facilities to house and/or care for the
wildlife and a resume of the experience
of those persons who will be caring for
the wildlife:
(vii] A full statement of the reasons
why the applicant is justified in
obtaining a permit including the details
of the activities sought to.be authorized
by the permit:
[viii) If the application is for the
purpose of enhancement of propagation,
a statement of the applicant's
willingness to participate in a
cooperative breeding program and to
maintain or contribute data to a
studbook
(ix) The information collection
requirements contained in this
paragraph have been approved by the
Office of Management and Budget under
44 U . S C 3507 and assigned Clearance
Number 10184022.This information is
being collected to provide information
necessary to evaluate permit
applications and make decisions,
according to criteria established in
various Federal wildlife and plant
conservation statutes and regulations,
on the issuance or denial of permits. The
obligation to respond is required to
obtain or retain a permit.
(2)Issuance criteria.Upon receiving
an application completed in accordance
with paragraph (a)(l)of this section, the
Director will decide whether or not a
permit should be issued. In making this
decision, the Director shall consider, in
addition to the general criteria in

/ Rules and Regulations

39689

8 13.21(b) of this subchapter, the
following factors:
[i) Whether the purpose for which the
permit is required is adequate to justify
removing from the wild or otherwise
changing the status of the wildlife
sought to be covered by the permit:
[ii) The probable direct and indirect
effect which issuing the permit would
have on the wild populations of the
wildlife sought to be covered by the
permit;
(iii) Whether the permit, if issued,
would in any way, directly or indirectly.
conflict with any known program
intended to enhance the survival
probabilities of the population from
which the wildlife sought to be covered
by the permit was or would be removed;
[iv] Whether the purpose for which
the permit is required would be likely to
reduce the threat of extinction facing the
species of wildlife sought to be covered
by the permit:
[v) The opinions or views of scientists
or other persons or organizations-having
expertise concerning the wildlife or
other matters germane to the
application: and
[vi) Whether the expertise, facilities,
or other resources available to the
applicant appear adequate to
successfully accomplish the objectives
stated in the application.
(3)'Permit conditions. In addition to
the general conditions set forth in Part
13 of this subchapter, every permit
issued under this paragraph shall be
subject to the special condition that the
escape of living wildlife covered by the
permit shall be immediately reported to
the Service office designated in the
permit.
(4) Dumtion ofpermits. The duration
of permits issued under this paragraph
shall be designated on the face of the
permit.
[b][l) Application requirementsfor
permits for incidental taking. [i]
Applications for permits under this
paragraph must be submitted to the
Director, US.Fish and Wildlife Service,
Federal Wildlife Permit Office, lo00 N.
Glebe Road, Room 61-1,Arlington,
Virginia 222M,by the person wishing to
engage in the activity prohibited by
$ 17.31.

[ii] The director shall publish notice in
the Federal Register of each application
for a permit that is made under this
section. Each notice shall invite the
submission from interested parties,
within 30 days after the date of the
notice, of written data, views, or
arguments with respect to the
application.
[iii) Each application must be
submitted on an official application

39tD90

...

Federal Register

Vol. 50, No. 1M

1 Rules and

Monday, September 30. 1985

degree to which Iisted species and their
[Form 3-2001 pmvided by the Service.
habitats are affected.
and must include a s an attachment, all
[3) Pennit conditions. In addition to
of the following information:
the general conditions set f o ~ t hin Part
(A) A complete description of the
13 of this subchapter, every permit
activity sought to be authorized;
issued under thig paragraph shall
(8) The common and scientific names
contaln such terns and cundizions as
of the species sought to be covered by
the Director deems necessay or
the permit. as well as the number. age,
appropriate to carry out the purposes of
and sex of such species, if knawn:
(c] A co~senrationplan that specifies: the permit and the conservation plan
including. but not limited to. monitoring
(1)The impaa that will likely result
and reporting requirements deemed
from such taking: 121 what steps the
applicant will take to monitor, minimize, necessary for determining whether such
terms and conditions are being complied
end mitigate such impacts, the funding
with. The Director shall rely upon
that will be available te implement such
existing reporting requirements to the
steps, and the procedures to be used to
deal with unforeseen circumstances; (31 maximum extent practi=ble.
whataltema~veactionstosuchteking
(41Dumti0nof~mits.neduntion
the applicant considered and the
of permits issued under this paragraph
shall be sufficient to provide adequate
reasons why such alternatives are not
assurances to the permittee to commit
proposed to be utilized end [ I ] such
other measures that the Director may
f u " d i ~necessaY
activities
authorized by the permit. including
require as being necessary or
conservation activities and land use
appropriate for purposes of the plan.
( I )The informati on collection
restrictions. determining he duration
of a permit, the Director shall consider
requirements contained in this
the duration of the planned activities. as
pragFaph have been approved by the
a s the possible positive and
Office of Management and Budget under
negative effects assocrated with permits
44 u.3.~.
3507 and assigned Clearance
of the proposed duration on listed
Number 1m-p.
This infamalion is
species. i n c l u h the extent to which
being coIlected to provide information
the conservation plan will enhance the
necessary to evaluate permit
habitat of listed species and increase
applications and make decisions,
the long-term survivability of such
accwding to criteria established in
various Federal wiIdlife and plant
species.
conservation staltutes and regulations on 8 17-81 IAmmJd]
rhe issuance o r denial of permits. fie
8.
8 27.g1, parapph (a) i s amended
obligation to respond is required to.
by replacing the phase "perapraph~(b)
obtain or retain a pennit.
thrcugb [a)" with the phrase
12)Issuance crftec'a.Upon receiving
up,,Fnphs bl haugh
an application completed in accordancs
7.Section17-81 111
by
with paragraph (bJ(1)of this section, fie rndesignating parapapha
end
sa
Director
decide wheiher Or not a
(d) and (el,wnpe;tively, and by adding
permit should be issued. The Director
the followTngnew
Ick
shall consider the general criteria in
4 13.21tb)of this subchapter and shall
P 17.61 PtoMMHonr.
issue the permit if he finds that: [i) The
*
*
taking will b e incidental: [ii) the
fc)Remove and reduce to possession.
applicant will. to the maximum extant
(I)It is unIawful to remove and reduce
prscticeble. minimize and mitigate the
to possession any endangered plant
impacts of such taking; {iii) the applicant from am
under Federal jurisdiction.
will ensure that adequate funding for the
(2) Nqwithstandirq! paragraph (c](1)
conserration plan and procedures to
of this section, any employee or agent of
deal with unforeseen cIrcumntancea will the Service,any other Federal land
be provided: (iv) the taking will not
management agency, or a State
appwciahly reduce the likelihood of the
canservatiw ageng, who is designated
s w i v e l and recovery of the species in
by that agency for such purpoaea, may,
the wild: (v] the measures. if any.
when acting in the courae af official
required under subparagraph
duties, remove and reduce ao possession
(bl(llliiil@l will be met: and tvil he has endawered plants from areas under
received auch other assurances as he
federal jurisdiction without a permit if
may require thst the plan will be
such action is necessary to: ti] Care for a
implemented. In making hi8 decision, the damaged or diseased specimen: [ii]
Director shall also consider the
dispose of a desd fipeclrnen:or (iiif
anticipated duration and geographic
salvege a dead specimen which may be
scope of the applicant's planned
useful for scientific s!udy.
activ~ties.including the amount of listed
(3) Any removal and reduction to
species habitat that ie involved and the
possession pursuant to paragraph ( c ) / 2 )

Regulations

of this section must be reported in
writing to the US,Fish and Wildlife
Service. Division of Lerv Enforcement.
P.O. Box 2 m , Washington, D.C.20005.
within 5 days. The specimen map b d ~
be retained, d i s p ~ a e dof, or salvaged in
accordance with written directions from
the Service.
(4) Notwithstanding paragraph (c)[r)
of t h i s section. any qualified employee
or agent of a State conservation agency
which is a party to e Cooperative
Agreement with the Service in
accordance with section 6fc) of the Act.

who is designated by that agency for
such purposes, may. when acting in the
course of oflicial duties, remove and

educeto to possession fro mare asunder

Federal iufisdiction those endangered
plants which are cavered by an
approved cooperative agreement for
conservation programs in accordance
with the Cooperative Agreement.
provided that such removal i s not
reasonably anticipated to result in: (i)
The death or permanent damage of Ye
specimens: [ii) the removal of the
specimen from the State where the
removal occurred: or (iii) the
introduction of the specimen SO
removed or of any ~ r o ~ a ~ uderived
les
from such a specimen. into an area
beyond the historical range of the
species.
*

8, In 8 17,62, is

amended by
mdesiaating paragraphs fallll(ivl
hmWh tall11(c*i) a3 paragraphs
[a:{l)(v) thmugh (a](l][viii]and by
adding new paragraphs [a][l)[iv).
[a](z][v], and (a]/3](iii) to read as

foilows:
8 17.6~ P

~
+hm
~
~ P
-.
for Ute anhamemmt ot p r m t l m m
#unrlvat

(a)

[I] *

(iv)if the activities w d d involve
to passeeeion of
under
county*Or
jurisdiction.the year*
any other description such as place
name, township, and range designation
that
precisely place Ihelocation
where the pmpoeed removal and
reduction to possession will occur, the
of the
entity h a v ' ~
jurisdiction over h e area, and the name.
flfle-address. ~ n phone
d
number of the
PeEO" in charge of the *re%.

and

a plant from

(2) *
(v) If the activities would Involve

removal and reduction to posse~lonof
seeds from en area under Federal
jurisdiction. the year, State. cnunty or

. Federal Rmtm

J Vol.

1BB f Monday, September 3Q,X
W

Rules and Regulations
.-

any other description such as phce
name, township. end range designation
that will precisely place the location
where the proposed removal and
reduction lo possession will occur, the
name of the Federai entity having
jurisdiction over the area and the name,
title, address, and phone number of the
person in charge of the area.

(31
Iiii] The information wlleetion
requirements contained in this wetion
have been approved by the Office of
Management end Budget under 44 U.S.C
3507 end aseigned Clearance Number
1 0 1 M 2 2 . This information is being

collected to provide information
necessary to evaluate permit
applications and make decisions,
according to criteria established in
various Federal wildlife and plant
conservation statutes and regulation^,
on the issuance or denial of pemits. Tbe
obligation to respond is required to
obtain or retain 9 permit.

name of the Federal entity having
jurisdiction over the ares and Phe name.
title, address, and phone number of the
pemon in charge of the area.
*

(21

[iv]If the activities wonld involve
removal and reduction to possession of
seeds fmm an area under Federal
jurisdiction, the year,State. county. or

any other description such ns place
name. township, and range designation
that will precisely place the location
where the proposed removal and
reduction to possession will occur, the
name of the Federal enttty having
jurisdiction over the awn end !he name,
title, address, and phone number of the
person in charge of the area.
(31

(iii) The information colleetim
mquirements contained in this aectim
have been approved by the OFfice of
Management and Budget under 44 U.S.C.

redesignating paragraph {b) am [c) and
adding the following new paragraph [b]:

3507 and a s s h e d Clearance Number
1 0 1 M 2 2 . T G information
~
is being
coHected to provide information
necessary to evaluate permit

[b) In addition to any provisions of
this Part 17, any employee or agent of
the Service or of a State Conaematton
Agency which is operating a
conservation program pursuant to the
terms of a Cooperative Agreement with
the Senice in accordance with section
6(c] of the Act. who ie designated by
that agency for such purposes, may,
when acting in the course of officiak

Acting Deputy R m i # & t r t ~ & q ~ F i n h
end Wildlife ondPorks.
[FRDoc. W1W Piled W-85&4S
: am)

9. Section 17.n i~
amended by

duties, remove and reduce to possession
from m a s under Federal jurisdiction
those threatened species of plants w h i d
are covered by an approved
Cooperative Agreement to carry out
canserration programs.

10, In section 17.72.is amended by

redesignating paragraphs IeKIHiv]
through (a)[l](vil as paragraphs [sl[lMv)
through (a)[l](vii) and 'byadding new
paragraphs (a)[l)[iv). {a)[2)(iv], and
(a)[3){iii] to read as follows:
f l7.72 -I-

[a]

[I)*

.
'*

(iv) If the activities w d d Involve
removal and reduction to potmession of
a plant from an area under Federal:

jurisdiction, the year. State. county or
any other.deseription such aa place
name. township, and range designation
that will preciseFy place the location
where the proposed r e m d and
reduction to pwsession wilI occur, the

applications and make decisions,
.
according to criteria eetablished in
varioue Federal wildlife and plant
~ o n ~ e r ~ astatutes
t i ~ n and regulations,
on the issuance or denial of perrnita. Tbe
obligation to respond is required to
obtain or retain a permit.
*
*
.
*
.
Wed:Augugt 221 W .
P. -1
Smith.

3S9l

APPENDIX 2:

Reference List of Publications On
HCPs and Conservation Biology

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: l.
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
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.
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

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.

2.0

PURPOSES OF THE PROGRAM

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.

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

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.

7.0

SPECIES OF CONCERN

Species to be specifically addressed in the Endangered Species Element and any areaspecific 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
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.

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.

Date

By
Regional Director,
U.S. Fish and Wildlife Service,
Portland, Oregon

Date
State Director,
U.S. Bureau of Land Management,
Sacramento, California

Date
Director
California Department of Fish and Game
Sacramento, California

Date

By
Executive Director,
California Energy Commission,
Sacramento, California

Date
Director,
California Department of Conservation,
Division of Oil and Gas,
Sacramento, California

Date
Chairman,
Kern County Board of Supervisors
Bakersfield, California

APPENDIX 4:

"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.

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:

3.0

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.

HABITAT CONSERVATION PLAN
Pursuant to the provisions of Section 10(a)(1)(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.

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:

9.0

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.

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

of the HCP and of this Agreement regarding the establishment and maintenance of habitat
for the Plan Species shall likewise, to the extent permitted by law, be permanent and extend
beyond the terms of this Agreement.
10.0

11.0

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].

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.

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.

Describe the adaptive management process agreed to by the parties to ensure the
terms of the HCP are fully implemented, if applicable.

[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

11.3

12.0

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.

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.

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.

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

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.

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.

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.

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.

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

__________________________________________
Regional Director
United States Fish and Wildlife Service
[City, State]

Date ________

__________________________________________
Regional Director [if applicable]
National Marine Fisheries Service
[City, State]

Date ________

___________________________________________ Date _________
Director [if applicable]
[State] Department of Fish and Game
[City, State]
(With reference to Part [x] of this Agreement only [as applicable])

___________________________________________
[Name], President [Director, etc.]
[Company, Organization, Agency]

Date _________

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
11.4(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.

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)

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)(l). 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.

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.

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

APPENDIX 6:

FWS Guidance on Integrating HCPs With National Wildlife Refuges

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, blackcapped 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

federal register

Thursday
June 12, 1997

Part III

Department of the
Interior
Fish and Wildlife Service

Department of
Commerce
National Oceanic and Atmospheric
Administration
50 CFR Parts 13 and 17
Announcements: Draft Safe Harbor Policy
and Candidate Conservation Agreements
Draft Policy, Notices; and Safe Harbor
and Candidate Conservation Agreements;
Proposed Rule

32177

32178

Federal Register / Vol. 62, No. 113 /

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Announcement of Draft Safe Harbor
Policy
Fish and Wildlife Service,
Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Announcement of draft policy;
request for public comments.
AGENCY:

SUMMARY: The Fish and Wildlife Service
and the National Marine Fisheries
Service (Services) announce a joint Draft
Safe Harbor Policy under the
Endangered Species Act of 1973, as
amended (Act). Many endangered and
threatened species occur exclusively or
to a large extent upon privately owned
property; the involvement of the private
sector in the conservation and recovery
of species is critical to the eventual
success of these efforts. This policy
would provide incentives for private
and other non-Federal property owners
to restore, enhance or maintain habitats
for listed species. Either Service, or the
Services jointly, will closely coordinate
with the appropriate State agencies and
any affected Native American Tribal
governments before entering into Safe
Harbor Agreements (Agreements).
Under the policy, either Service, or the
Services, jointly, would provide
participating property owners with
technical assistance in the development
of Agreements and would provide
assurances that additional land-use or
resource-use restrictions as a result of
their voluntary conservation actions to
benefit covered species would not be
imposed. If the Agreement provides a
net conservation benefit to the covered
species and the property owner meets
all the terms of the Agreement, the
Services would authorize the incidental
taking of the covered species to enable
the property owner to ultimately return
the enrolled property back to agreed
upon baseline conditions. The Services
seek public comment on the draft
policy. Additionally, the Fish and
Wildlife Service (FWS) has published in
today’s Federal Register a proposed rule
that contains the necessary regulatory
changes to implement this policy. The
Services also seek public comment on
the appropriateness of allowing a
property owner to enter into a Safe
Harbor Agreement in conjunction with
a Habitat Conservation Plan (HCP)
under section 10(a)(1)(B) of the Act.

Thursday, June 12, 1997 /

Comments on the draft policy
must be received by August 11, 1997.
ADDRESSES: Send any comments or
materials concerning the Draft Safe
Harbor Policy to the Chief, Division of
Endangered Species, U.S. Fish and
Wildlife Service, 452 ARLSQ,
Washington, D.C. 20240 (Telephone
703/358–2171, Facsimile 703/358–1735)
You may examine comments and
materials received during normal
business hours in room 452, Arlington
Square Building, 4401 North Fairfax
Drive, Arlington, Virginia. You must
make an appointment to examine these
materials.
FOR FURTHER INFORMATION CONTACT: E.
LaVerne Smith, Chief, Fish and Wildlife
Service, Division of Endangered Species
(Telephone (703)358–2171) or Nancy
Chu, National Marine Fisheries Service,
Chief, Endangered Species Division
(Telephone (301) 713–1401).
DATES:

SUPPLEMENTARY INFORMATION:

Background
Much of the nation’s current and
potential fish and wildlife habitat is on
non-Federal property, owned by private
citizens, States, municipalities, Native
American Tribal governments, and other
non-Federal entities. Conservation
efforts on non-Federal property are
critical to the survival and recovery of
many endangered and threatened
species. The Services strongly believe
that a collaborative stewardship
approach to the proactive management
of listed species involving government
agencies (Federal, State, and local) and
the private sector is critical to achieving
the ultimate goal of the Endangered
Species Act (Act). The long-term
recovery of certain species can benefit
from short-term and mid-term
enhancement, restoration, or
maintenance of terrestrial and aquatic
habitats on non-Federal property.
Many property owners are willing to
voluntarily manage their property to
benefit listed fish and wildlife, provided
that such actions do not result in new
restrictions being placed on the future
use of their property. Beneficial
management could include actions to
enhance, restore, or maintain habitat
(e.g., restoring fire by prescribed
burning, restoring hydrological
conditions), so that it is suitable for
listed species. Such proactive
management actions cannot be
mandated or required by the Act. Thus,
failure to conduct habitat enhancement
or restoration activities would not
violate any of the Act’s provisions.
Although property owners recognize the
benefits of proactive habitat
conservation activities to help listed

Notices

species, some are still concerned about
additional land-use or resource-use
restrictions that may result if listed
species colonize their property or
increase in numbers or distribution
because of their conservation efforts.
Concern centers on the applicability of
the Act’s section 9 ‘‘take’’ prohibitions
if listed species occupy their property
and on future property-use restrictions
that may result from their conservationoriented property management actions.
The potential for future land- or
resource-use restrictions has led
property owners to avoid or limit
property management practices that
could enhance or maintain habitat and
benefit or attract fish and wildlife that
are currently Federally listed as
endangered or threatened.
A fundamental purpose of section 2 of
the Act, is to conserve the ecosystems
upon which endangered and threatened
species depend and to conserve listed
species. Section 9 of the Act prohibits
the ‘‘take’’ of listed fish and wildlife
species, which is defined in section
3(18) to include, among other things,
killing, harming or harassing. The Act’s
implementing regulations (50 CFR 17.3),
as promulgated by the FWS, define
‘‘harm’’ to include ‘‘significant habitat
modification or degradation where it
actually kills or injures wildlife by
significantly impairing essential
behavioral patterns, including breeding,
feeding and sheltering.’’ Regulations in
50 CFR 17.31 extend the prohibition
against take to threatened fish and
wildlife species. Consequently, property
owners whose properties support
endangered or threatened species could
violate section 9 of the Act if the
property owners significantly develop,
modify, or manage those properties in a
way that causes harm to listed species.
The Services’ draft Safe Harbor Policy
encourages property owners to
voluntarily conserve threatened and
endangered species without the risk of
further restrictions pursuant to section
9. Previously the FWS has provided safe
harbor type assurances to non-Federal
property owners based on various
authorities under the Act, including
incidental take statements under section
7(a)(2) and incidental take permits
under section 10(a)(1)(B). After further
consideration of such alternatives and
other provisions of the Act, the Services
have determined that the section
10(a)(1)(A) ‘‘enhancement of survival’’
permit provisions of the Act provide the
best mechanism to carry out the Safe
Harbor Policy and provide the necessary
assurances for participating property
owners while also providing
conservation benefits to the covered
species. Assurances already provided by

Federal Register / Vol. 62, No. 113 /
the FWS under sections 7 or 10(a)(1)(B)
would still be valid, and revision of
those proactive Agreements is
unnecessary. The Services are
developing this policy to provide
national consistency in the development
of Safe Harbor Agreements and link the
policy to an expanded enhancement of
survival permit program through section
10(a)(1)(A) of the Act.
The FWS’s proposed regulatory
changes necessary to implement this
draft policy were published in today’s
Federal Register. The proposed rule
provides the FWS’s procedures to
implement the Safe Harbor Policy as
well as other changes to Parts 13 and 17.
The National Marine Fisheries Service
will develop and propose regulatory
changes to implement this policy at a
later date.
Draft Safe Harbor Policy
Part 1. Purpose
Because many endangered and
threatened species occur exclusively, or
to a large extent, upon privately owned
property, the involvement of the private
sector in the conservation and recovery
of species is critical to the eventual
success of these efforts. Private property
owners are willing to be partners in the
conservation and recovery of fish,
wildlife, and plant species and their
habitats. However, property owners
often are reluctant to undertake
proactive activities that increase the
likelihood or extent of use of their
properties by endangered and
threatened species, due to fear of future
additional property-use restrictions.
Safe Harbor Agreements are a means of
providing an incentive to property
owners to restore, enhance, or maintain
habitats resulting in a net conservation
benefit to endangered and threatened
species. Although such Agreements may
not permanently conserve such habitats,
they nevertheless offer important shortterm and mid-term conservation
benefits. These net conservation benefits
may result from reduction of
fragmentation and increasing the
connectivity of habitats, maintaining or
increasing populations, insuring against
catastrophic events, enhancing and
restoring habitats, buffering protected
areas, and creating areas for testing and
implementing new conservation
strategies.
The purpose of the Safe Harbor Policy
is to ensure consistency in the
development of Safe Harbor
Agreements. Safe Harbor Agreements
encourage proactive species
conservation efforts by private and other
non-Federal property owners while
providing certainty relative to future

Thursday, June 12, 1997 /

property-use restrictions, if these efforts
attract listed species onto their
properties, or areas affected by actions
undertaken on their property, or
increase the numbers or distribution of
listed species already present on their
properties. These voluntary Agreements
will be developed between, either
Service, or the Services jointly, and
private and other non-Federal property
owners. The Services will closely
coordinate development of these
Agreements with the appropriate State
fish and wildlife or other agencies and
any affected Native American Tribal
governments. Collaborative stewardship
with State fish and wildlife agencies is
particularly important given the
partnerships that exist between the
States and the Services in recovering
listed species. Under a Safe Harbor
Agreement, participating property
owners would voluntarily undertake
management activities on their property
to enhance, restore, or maintain habitat
to benefit Federally-listed species.
Safe Harbor Agreements may be
initiated by property owners, or, either
Service or the Services jointly, may take
the initiative on their own or in concert
with other Federal or State agencies to
encourage property owners to
voluntarily enter Safe Harbor
Agreements for a given area, particularly
when many non-Federal parcels of
property are involved. Either Service or
the Services jointly, will work with the
participating landowner in the
development of their permit application
and the Safe Harbor Agreement. The
Services will provide the necessary
technical assistance to the landowner in
developing mutually agreeable
management actions that the landowner
is willing to voluntarily undertake or
forgo that will provide a net
conservation benefit and help the
landowner describe how these activities
will benefit covered species.
Development of an acceptable permit
application and an adequate Safe Harbor
agreement is intricately linked. Either
Service or the Services jointly will
process the participating landowner’s
permit application following the Safe
Harbor permitting process as described
in Title 50 of the Code of Federal
Regulations Part 17. During this process
all parties to the Agreement will work
in close coordination in the
development of the Agreement to ensure
that measures included in the agreement
are consistent with the terms and
conditions of the permit. Once the
permit is issued the parties to the
Agreement can finalize and sign the
Agreement.
The Services recognize that Safe
Harbor Agreements are not appropriate

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32179

under all circumstances. In particular,
in situations when property owners are
seeking immediate take authorization,
development of a Habitat Conservation
Plan (HCP) and issuance of an
incidental take permit under section
10(a)(1)(B) would be more appropriate.
Safe Harbor Agreements are also not
appropriate in situations that do not
meet the net conservation benefit
standards of this policy. For example,
where either Service or the Services
jointly, reasonably anticipate that a
proposed Agreement would only
redistribute the existing population of a
listed species or attract a species away
from a habitat that enjoys long-term
protection to a habitat without such
protection, the Services would not enter
into the Agreement. As another
example, where a species is so depleted
or its habitat so degraded that some
improvement over baseline conditions
is necessary to result in a net
conservation benefit, a Safe Harbor
Agreement may not be appropriate. For
instance, certain aquatic, riverine, and/
or riparian species may present a
challenge in reaching a net conservation
benefit since returning to the baseline
conditions could have serious negative
effects and would negate or outweigh
the benefits achieved through the
Agreement. In these cases, if a net
conservation benefit cannot be achieved
after taking into consideration the return
to the baseline conditions, the Services
will not enter into a Safe Harbor
Agreement unless the Services and the
property owner agree to appropriate
conditions that provide such a benefit.
Availability of resources will also be
a governing factor for the Services. The
Services expect the interest in Safe
Harbor Agreements to rise and the
demand for technical assistance to
property owners to increase. Safe
Harbor Agreements are developed using
limited funds appropriated for recovery
activities. Priority will, therefore, be
given to Agreements that provide the
greatest contribution to the recovery of
multiple listed species. Another
governing factor will be whether there is
sufficient information to develop sound
conservation measures. The Services
will work with State, Tribal, and other
interested parties to fill information
gaps for species requirements that have
not been adequately documented in the
scientific literature.
Part 2. Definitions
The following definitions apply for
the purposes of this policy.
‘‘Baseline conditions’’ for covered
species means population estimates and
distribution (if available or
determinable) and/or habitat

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characteristics of enrolled property that
sustain seasonal or permanent use, at
the time the Safe Harbor Agreement is
executed between either Service or the
Services jointly and the property owner.
‘‘Covered species’’ means a species
that is the intended subject of a Safe
Harbor Agreement. Covered species are
limited to species that are Federally
listed as endangered or threatened.
‘‘Enhancement of Survival Permit’’
means a permit issued under the
authority of section 10(a)(1)(A) of the
Act.
‘‘Enrolled property’’ means all private
or non-Federal property or waters
covered by a Safe Harbor Agreement to
which safe harbor assurances apply and
on which incidental taking is authorized
under the enhancement of survival
permit.
‘‘Management activities’’ are
voluntary conservation actions to be
undertaken by a property owner that
either Service or the Services jointly
believe will benefit the status of the
covered species.
‘‘Net conservation benefit’’ means the
cumulative results of the management
activities identified in an Agreement
that provide for an increase in a species’
population and/or the enhancement,
restoration or maintenance of covered
species’ suitable habitat within the
enrolled property, taking into account
the length of the Agreement and the
incidental taking allowed by the permit.
Net conservation benefits must be
sufficient to contribute to the recovery
of the covered species if undertaken by
other property owners similarly situated
within the range of the covered species.
‘‘Property owner’’ includes, but is not
limited to, private individuals,
organizations, businesses, Native
American Tribal governments, State and
local governments, and other nonFederal entities.
‘‘Safe Harbor Agreement’’ means an
Agreement signed by either Service, or
both Services jointly and a property
owner and any other cooperator, if
appropriate, that: (a) Sets forth specific
management activities that the private
or non-Federal property owner will
voluntarily undertake or forgo that will
provide a net conservation benefit to
covered species; and (b) provides the
property owner with the Safe Harbor
assurances described within the
Agreement and authorized in the
enhancement of survival permit.
‘‘Safe Harbor Assurances’’ are
assurances provided in the Agreement
and authorized in the enhancement of
survival permit for covered species, by
either Service, or both jointly, to a nonFederal property owner. These
assurances would allow the property

Thursday, June 12, 1997 /

owner to alter or modify enrolled
property, even if such alteration or
modification will result in the
incidental take of a listed species that
would return the species back to the
originally agreed upon baseline
conditions. Such assurances may apply
to whole parcels, or portions thereof, of
the property owner’s property as
designated in the Agreement. These
assurances are dependent upon
compliance with the property owners’
obligations in the Agreement and in the
enhancement of survival permit.
Part 3. Cooperation and Coordination
With the States and Tribes
Coordination with the appropriate
State agencies and any affected Tribal
governments is critical for the success of
the Services’ collaborative stewardship
approach to recovery through these Safe
Harbor Agreements, which is the
underlying principle of the Safe Harbor
Policy. Coordination among the State
fish and wildlife agencies, Tribal
governments, the Services, and the
property owners are key to effectively
implementing a successful Safe Harbor
Agreement. This coordination allows
the special local knowledge of all
appropriately affected entities to be
considered in the Agreements. The
Services will work in close partnership
with State agencies on matters involving
the distribution of materials describing
the Safe Harbor Agreement policies and
programs, the determination of
acceptable baseline conditions and
development of appropriate monitoring
efforts. Because of the Services’ trust
responsibilities, the Services will also
closely coordinate and consult with any
affected Tribal government which has a
treaty right to any fish or wildlife
resources covered by a Safe Harbor
Agreement.
Part 4. Species Net Benefit From Safe
Harbor Agreements
Before entering into any Safe Harbor
Agreement, either Service, or the
Services jointly, must make a written
finding that all covered species would
receive a net conservation benefit from
management actions undertaken
pursuant to the Agreement. Net
conservation benefits must contribute to
the recovery of the covered species.
Although a Safe Harbor Agreement does
not have to provide permanent
conservation for enrolled property,
Agreements must nevertheless be of
sufficient design and duration to
provide a net conservation benefit to all
covered listed species.
Conservation benefits from Safe
Harbor Agreements may include
reduction of habitat fragmentation rates;

Notices

the maintenance, restoration or
enhancement of habitats; increase in
habitat connectivity; maintenance or
increase of population numbers or
distribution; reduction of the effects of
catastrophic events; establishment of
buffers for protected areas; and
establishment of areas to test and
develop new and innovative
conservation strategies. The Services
believe a ‘‘net conservation benefit’’ test
is necessary to justify the issuance of an
enhancement of survival permit under
section 10(a)(1)(A) of the Act. The
contribution to the recovery of listed
species by Safe Harbor Agreements must
be evaluated carefully, since realized
benefits from these agreements will be
affected by the duration of the
Agreement.
The Services believe that there are
many listed species that will benefit
from management actions carried out for
the duration of Safe Harbor Agreements
even if there is a return to baseline
conditions. Returning the habitat or
population numbers to the baseline
conditions must be possible without
negating the net conservation benefit
provided by the Agreement. If this net
conservation benefit standard cannot be
met, then the Services will not enter
into the Agreement. For example, where
the Services reasonably anticipate that a
proposed Agreement would only
redistribute the existing population of a
listed species or attract a species away
from a habitat that enjoys long-term
protection to a habitat without such
protection, the Services would not enter
into the Agreement. Aquatic, riverine,
and/or riparian species may present an
additional challenge in reaching a net
conservation benefit since returning to
the baseline conditions could have a
serious negative effect and would negate
or outweigh the benefits achieved
through the Agreement. In these cases,
if a net conservation benefit cannot be
achieved, and still allow for the return
to the baseline conditions, the Services
will not enter into a Safe Harbor
Agreement.
Part 5. Standards for and Development
of a Safe Harbor Agreement and Permit
Issuance Under Section 10(a)(1)(A) of
the Act
A property owner may obtain a permit
to incidentally take a listed species of
fish and wildlife above the agreed upon
baseline conditions of the Safe Harbor
Agreement, if the Agreement satisfies
the following requirements:
The Agreement must—
(1) Specify the species and/or habitats
and identify the enrolled property
covered by the Agreement;

Federal Register / Vol. 62, No. 113 /
(2) Describe the agreed upon baseline
conditions for each of the covered
species within the enrolled property;
(3) Identify management actions that
would accomplish the expected net
conservation benefits to the species and
the agreed upon timeframes for these
management actions to remain in effect
in order to achieve the anticipated net
conservation benefits;
(4) Describe the anticipated results of
the management actions and any
incidental take associated with the
management actions;
(5) Incorporate a notification
requirement, where appropriate and
feasible, to provide either Service, or
Services jointly, or appropriate State
agencies with a reasonable opportunity
to rescue individual specimens of a
covered species before any authorized
incidental taking occurs;
(6) Describe the nature of the expected
incidental take upon termination of the
Agreement (i.e., back to baseline
conditions);
(7) Satisfy other requirements of
section 10 of the Act; and
(8) Identify the responsible parties
that will monitor maintenance of
baseline conditions, implementation of
terms and conditions of the Agreement,
and any incidental take as authorized in
the permit.
Issuance of a Safe Harbor permit by
the Services is subject to consultation
under the intra-Service consultation
provisions of section 7 of the Act.
Part 6. Baseline Conditions
Either Service, or the Services jointly,
the property owner, and any other
cooperator(s) must accurately describe
the baseline conditions for the property
and species covered by the Safe Harbor
Agreement to ensure that the Agreement
will not reduce current protection for
covered species that presently may use
the enrolled property, or result in
additional restrictions for such species
beyond the baseline conditions. The
baseline conditions must reflect the
known biological and habitat
characteristics that are necessary to
support existing levels of use of the
property by species covered in the
Agreement. However, in light of
circumstances beyond the control of the
property owner (e.g., loss of nest trees
due to storm damage), the parties to the
Agreement may revise the baseline
conditions to reflect the new
circumstances and may develop a new
baseline upon which all parties agree.
(A) Determining the Baseline Conditions
This Policy requires a full description
of baseline conditions for any species
covered in an Agreement (see Part 5

Thursday, June 12, 1997 /

above). Either Service or the Services
jointly, or appropriate State or Tribal
agencies, with the concurrence of the
participating property owner, will
describe the baseline conditions for the
enrolled property in terms appropriate
for the covered species such as: number
and location of individual animals, if
available or determinable; necessary
habitat characteristics that support the
species covered by the Agreement; and
other appropriate attributes. On-site
inspections, maps, aerial photographs,
remote sensing, or other similar means
can help determine baseline conditions.
To the extent determinable, the parties
to the Agreement must identify and
agree on the level of occupation
(permanent or seasonal) by covered
species on the enrolled property. For
species that are extremely difficult to
survey and quantify, an estimate or an
indirect measure (e.g., number of
suitable acres of habitat needed to
sustain a member of the species) is
acceptable. Either Service or the
Services jointly, will develop the
estimate following a protocol agreed
upon by all parties to the Agreement.
Baseline conditions are then set, based
upon the agreed upon measurements or
estimates. Either Service or the Services
jointly, the property owner or the
property owner and any other
appropriate agency or government
acting in cooperation with either
Service or the Services jointly, may
determine the baseline conditions.
When either Service does not directly
determine the baseline conditions, they
must review and concur with the
determination before entering into an
Agreement. Formulation of baseline
conditions can incorporate information
provided by the property owner, any
other appropriate agency, or species
experts, as appropriate.
(B) Plants
The Act’s ‘‘take’’ prohibitions
generally do not apply to listed plant
species on private property. Therefore,
the incidental take assurances provided
in this policy are usually not necessary
for listed plant species. However, the
Services strongly encourage and often
enter into Agreements with non-Federal
property owners to restore and enhance
habitats for listed plants.
Either Service or the Services jointly,
must review the effects of their own
actions (e.g., issuance of a permit) on
listed plants, even when those plants
are found on private property under
section 7 of the Act. In approving an
enhancement of survival permit and
entering into a Safe Harbor Agreement,
either Service or the Services jointly,
must also confirm under section 7 that

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32181

the Agreement will not ‘‘jeopardize the
continued existence’’ of listed plants. In
the interest of conserving listed plants
and complying with their
responsibilities under section 7, either
Service or the Services jointly, may
negotiate with the property owner to
voluntarily assist the Services in
restoring or enhancing listed plant
habitats present within the enrolled
property.
(C) Future Section 7 Considerations and
Assurances
Before entering into a Safe Harbor
Agreement, the either Service or the
Services jointly, must conduct an intraService section 7 review. During that
process, either Service or the Services
jointly, must determine that future
property use changes within the
enrolled property and incidental take
consistent with the established baseline
conditions will neither jeopardize listed
species of fish and wildlife or plants,
nor destroy or adversely modify critical
habitat at the time of signing the
Agreement. If a future Federal nexus to
the enrolled property prompts the need
for a section 7 review and take of the
listed species above the baseline
conditions is likely, either Service or the
Services jointly, will issue a nonjeopardy biological opinion and
incidental take statement to the Federal
action agency. As required by section 7
and its implementing regulations, either
Service or the Services jointly, will also
provide the Federal agency with
reasonable and prudent measures that
are necessary or appropriate to
minimize the effects of the action. Those
measures will only require
implementation of the same terms and
conditions provided to the participating
landowner in his/her Safe Harbor
Agreement and associated 10(a)(1)(a)
permit. This approach is warranted and
consistent with section 7 consultation
procedures because the effects of any
incidental take consistent with the
established baseline conditions would
have been previously considered during
the Services’ intra-agency section 7
review for the proposed Agreement.
Part 7. Assurances to Property Owners
A property owner who enters an
Agreement and wishes to return
enrolled property to the baseline
conditions would need to show that the
agreed upon baseline conditions were
maintained and that activities identified
in the Agreement as necessary to
achieve the net conservation benefit
were carried out for the duration of the
agreement. If the property owner carried
out the management actions and
complied with the permit and the

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Agreement conditions, the property
owner would be authorized to utilize
his/her property in a manner which
returns the enrolled property to baseline
conditions.
Part 8. Occupation by Non-Covered or
Newly Listed Species
After an Agreement is signed and an
enhancement of survival permit is
issued, a species not addressed in the
Agreement may occupy enrolled
property. If either Service or the
Services jointly, conclude that the
species is present as a direct result of
the property owner’s conservation
actions taken under the Agreement,
either Service or the Services, will:
(1) At the request of the property
owner, amend the Agreement to reflect
the changed circumstances and revise
the baseline condition description, as
appropriate; and
(2) Review and revise the permit, as
applicable, to address the presence of
additional listed species on enrolled
property.
Assurances in the permit may not
necessarily be extended to a noncovered species if the species was
specifically excluded from the original
Agreement as a result of the
participating property owner’s request,
or its presence is a result of activities
not directly attributable to the property
owner. In these cases, enhancement or
maintenance actions that are specific to
the non-covered species under
consideration must be developed, and
baseline conditions determined that will
provide a net conservation benefit to
that species.
Any substantial change to a Safe
Harbor Agreement or a revision to an
enhancement of survival permit because
of non-covered species would be subject
to the same review process (i.e., section
7 of the Act or public review) as the
original Safe Harbor agreement and
enhancement of survival permit.
Part 9. National Environmental Policy
Act Compliance
The National Environmental Policy
Act of 1969 (NEPA), as amended, and
the regulations of the Council on
Environmental Quality (CEQ) require all
Federal agencies to examine the
environmental impact of their actions,
to analyze a full range of alternatives,
and to utilize public participation in the
planning and implementation of their
actions. The purpose of the NEPA
process is to help Federal agencies make
better decisions and to ensure that those
decisions are based on an understanding
of environmental consequences. Federal
agencies can satisfy NEPA requirements
by either a Categorical Exclusion,

Thursday, June 12, 1997 /

Environmental Assessment (EA), or
Environmental Impact Statement (EIS),
depending on the effects of their
proposed action.
Either Service or the Services jointly,
will review each permit action for other
significant environmental, economic,
social, historical or cultural impact, or
for significant controversy (516 DM 2,
Appendix 2 for FWS and NOAA’s
Environmental Review Procedures and
NOAA Administrative Order Series
216–6). If either Service or the Services
jointly, expect that significant impact
could occur, the issuance of a permit
would require preparation of an EA or
EIS. General guidance on when the
Services exclude an action categorically
and when and how to prepare an EA or
EIS is found in the FWS’s
Administrative Manual (30 AM 3) and
NOAA Administrative Order Series
216–6. If a Safe Harbor Agreement/
permit is not expected to individually or
cumulatively have a significant impact
on the quality of the human
environment, then the Agreement/
permit may be categorically excluded.
Part 10. Transfer of Ownership
If a property owner who is party to a
Safe Harbor Agreement transfers
ownership of the enrolled property,
either Service or the Services, will
regard the new owner as having the
same rights and obligations with respect
to the enrolled property as the original
property owner if the new property
owner agrees to become a party to the
original Agreement. Actions taken by
the new participating property owner
that result in the incidental take of
species covered by the Agreement
would be authorized if the new property
owner maintains the baseline
conditions. The new property owner,
however, would neither incur
responsibilities under the Agreement
nor receive any assurances relative to
section 9 restrictions from the
Agreement unless the new property
owner becomes a party to the
Agreement.
A Safe Harbor Agreement must
commit the participating property
owner to notify the Services of any
transfer of ownership at the time of the
transfer of any property subject to the
Agreement. This will allow the Services
to contact the new property owner to
explain the prior Safe Harbor Agreement
and to determine whether the new
property owner would like to continue
the original Agreement or enter a new
Agreement. When a new property owner
continues an existing Safe Harbor
Agreement, either Service or the
Services jointly, will honor the baseline

Notices

conditions for the enrolled property
under consideration.
Part 11. Property Owner Discretion
Nothing in this policy prevents a
participating property owner from
implementing management actions not
described in the Agreement, so long as
such actions maintain the baseline
conditions. Either Service or the
Services jointly, will provide technical
advice, to the maximum extent
practicable, to the property owner when
requested.
Part 12. Discretion of All Parties
Nothing in this policy compels any
party to enter a Safe Harbor Agreement
at any time. Entering a Safe Harbor
Agreement is voluntary and presumes
that the Agreement will serve the
interests of all affected parties. Unless
specifically noted, an Agreement does
not otherwise create or waive any legal
rights of any party to the Agreement.
Part 13. Scope of Policy
This policy applies to all federallylisted species of fish and wildlife
administered by either Service or the
Services jointly, as provided in the Act
and its implementing regulations.
Required Determinations
A major purpose of this proposed
policy is the facilitation of voluntary
cooperative programs for the proactive
management of non-Federal lands and
waters for the benefit of listed species.
From the Federal Government’s
perspective, implementation of this
policy would result in minor
expenditures (e.g., providing technical
assistance in the development of sitespecific management plans). The
benefits derived from such management
actions on non-Federal lands and waters
would significantly advance the
recovery of listed species. Non-Federal
program participants would be provided
regulatory certainty as a result of their
voluntary management actions. In some
cases, such participants may incur
minor expenditures to carry out some
management actions on their lands or
involving their water. The Services have
determined that the proposed policy
would not result in significant costs of
implementation to the Federal
Government or to non-Federal program
participants.
The Director of the Fish and Wildlife
Service certified to the Chief Counsel for
Advocacy of the Small Business
Administration that a review under the
Regulatory Flexibility Act of 1980 (5
U.S.C. 601 et seq.) has revealed that this
policy would not have a significant
effect on a substantial number of small

Federal Register / Vol. 62, No. 113 /
entities, which includes businesses,
organizations, or governmental
jurisdictions. Because of the completely
voluntary nature of the Safe Harbor
program, no significant effects are
expected on non-Federal cooperators
exercising their option to enter into a
Safe Harbor Agreement. Therefore, this
policy would have minimal effect on
such entities.
This policy has been determined to be
not significant for purposes of Executive
Order 12866. Therefore, it was not
subject to review by the Office of
Management and Budget.
The Services have determined and
certify pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that
this proposed policy will not impose a
cost of $100 million or more in any
given year on local or State governments
or private entities. The Departments
have determined that these proposed
policy meets the applicable standards
provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
The Services have examined this
proposed policy under the Paperwork
Reduction Act of 1995 and found it to
contain no requests for additional
information or increase in the collection
requirement other than those already
approved under the Paperwork
Reduction Act of 1995 for incidental
take permits with OMB approval #1018–
0022 which expires July 31, 1997. The
Service requested renewal of the OMB
approval and in accordance with 5 CFR
1320 will not continue to collect the
information, if the approval has expired,
until OMB approval has been obtained.
The Department has determined that
the issuance of the proposed policy is
categorically excluded under the
Department of Interior’s NEPA
procedures in 516 DM 2, Appendix
1.10. NMFS concurs with the
Department of Interior’s determination
that the issuance of the proposed policy
qualifies for a categorical exclusion and
falls within the categorical exclusion
criteria in NOAA 216–3 Administrative
Order, Environmental Review
Procedure.
Public Comments Solicited
The Services request comments on
their Draft Safe Harbor Policy.
Particularly sought are comments on the
procedures or methods for enhancing
the utility of the Safe Harbor Policy in
carrying out the purposes of the Act.
The Services also are interested in the
views of interested parties on the
appropriateness of linking ‘‘Safe
Harbor’’ Agreements to incidental take
permits issued under section 10(a)(1)(B)
of the Act. In certain situations, HCP
permittees might be willing to conduct

Thursday, June 12, 1997 /

activities that would enhance listed
species populations above their
mitigation obligations under an
incidental take permit or HCP. The
Services are interested in ideas,
comments, and suggestions on this
concept. The Services also are
requesting ideas, comments or
suggestions on how to delineate the
baseline conditions for a Safe Harbor
Agreement that is linked to an HCP
incidental take permit. After
consideration of all comments received
on this question, the Services will
decide whether it is appropriate to
utilize Safe Harbor Agreements in
connection with HCPs.
If the Services decide that it is
appropriate to provide these assurances
to incidental take permittees, the
Services will publish a proposed policy
on how best to provide such assurances.
In addition, situations may arise
where a property owner may want to
recover or conserve numerous species,
both listed and unlisted on their
property, and may want to enter into
both a Safe Harbor Agreement and a
Candidate Conservation Agreement. The
Services are also seeking comments, and
are interested in ideas and suggestions
on the ways to streamline and combine
these processes when developing these
two types of agreements with the same
property owner.
The Services will take into
consideration the comments and any
additional information received by the
Services by August 11, 1997. To ease
review and consideration of submitted
comments, the Services prefer that
reviewers organize their comments by
part (e.g., Part 1. Purpose, Part 2.
Definitions, and linking Safe Harbor
Agreements with HCP permits).
Dated: May 27, 1997.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
Dated: June 2, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries,
National Oceanic and Atmospheric
Administration.
[FR Doc. 97–15250 Filed 6–9–97; 1:26 pm]
BILLING CODE 4310–55–P

Notices

32183

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Announcement of Draft Policy for
Candidate Conservation Agreements
Fish and Wildlife Service,
Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Announcement of draft policy;
request for public comments.
AGENCY:

The Fish and Wildlife Service
and the National Marine Fisheries
Service (Services) announce a joint Draft
Policy for Candidate Conservation
Agreements (Agreements) under the
Endangered Species Act of 1973, as
amended (Act). This policy would
provide incentives for private and other
non-Federal property owners, and State
and local land managing agencies, to
restore, enhance, or maintain habitats
for proposed, candidate and certain
other unlisted species. Candidate
Conservation Agreements would be
developed by participating property
owners or State or local land managing
agencies to remove the need to list the
covered species as threatened or
endangered under the Act. The Services
will coordinate closely with the
appropriate State agencies and any
affected Native American Tribal
governments before entering into
Candidate Conservation Agreements
with property owners to conserve
covered species.
Under this policy, either Service, or
the Services jointly, would provide
participating property owners and State
and local land managing agencies with
technical assistance in the development
of Candidate Conservation Agreements
and would provide assurances that, if
covered species are eventually listed,
the property owners or agencies would
not be required to do more than those
actions agreed to in the Candidate
Conservation Agreement. If a species is
listed, incidental take authorization
would be provided to allow the property
owner or agency to implement
management activities that may result in
take of individuals or modification of
habitat consistent with those levels
agreed upon and specified in the
Agreement.
Published concurrently in this
Federal Register are the Fish and
Wildlife Service’s (FWS) proposed
regulations necessary to implement this
policy. The Services seek public
comment on this proposed draft policy.
SUMMARY:

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.

TABLE OF CONTENTS
1.0 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.0 PURPOSE AND NEED FOR ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3.0 DESCRIPTION OF THE AFFECTED ENVIRONMENT . . . . . . . . . . . . . . . . . . . . . .
3.1 VEGETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.2 WILDLIFE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.3 THREATENED OR ENDANGERED SPECIES . . . . . . . . . . . . . . . . . . . . . . . . .
3.4 WETLANDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.5 GEOLOGY/SOILS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.6 LAND USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.7 AIR QUALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.8 WATER RESOURCES AND WATER QUALITY . . . . . . . . . . . . . . . . . . . . . . . .
3.9 CULTURAL RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2
2
3
4
4
4
4
4
5
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1 ALTERNATIVE 1- PROPOSED (PREFERRED) ALTERNATIVE . . . . . . . . . . .
5.1.1 Onsite Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.1 Vegetation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.2 Wildlife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.3 Endangered Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.4 Assessment of Take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.5 Wetlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.6 Geology/Soils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.7 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.8 Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.9 Air and Water Quality Impacts . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.1.10 Cultural Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2 Offsite Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2.1 Vegetation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2.2 Wildlife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2.3 Endangered Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2.4 Wetlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2.5 Geology/Soils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2.6 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2.7 Air and Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6
6
6
6
6
6
7
7
7
8
8
8
8
9
9
9
9
9
9
9
9

5.1.2.8 Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.2.9 Cultural Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.3 Cumulative Impacts Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.3.1 Vegetation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.3.2 Wildlife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.3.3 Threatened or Endangered Species . . . . . . . . . . . . . . . . . . . . .
5.1.3.4 Wetlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.3.5 Geology and Soils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.3.6 Land Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.3.7 Air and Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1.3.8 Cultural Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ALTERNATIVE 2 - ALTERNATE SITE LOCATION . . . . . . . . . . . . . . . . . . .
ALTERNATIVE 3 - ALTERNATIVE SITE LAYOUT . . . . . . . . . . . . . . . . . . .
ALTERNATIVE 4 - WAIT ON THE REGIONAL 10(a)(1)(B) PERMIT . . . . . .
ALTERNATIVE 5 - NO ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10
10
10
10
10
10
11
11
11
11
11
11
12
12
12

6.0 HABITAT CONSERVATION PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.1 AMENDMENT PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.2 AMENDMENTS TO THE DEVELOPMENT PLANS . . . . . . . . . . . . . . . . . . . .
6.3 MINOR AMENDMENTS TO THE HCP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.4 ALL OTHER AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12
13
13
14
15

5.2
5.3
5.4
5.5

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)(1)(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 secundiflora).

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 floridanus), 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.

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.

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.
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

acres on (LOCATION), Austin, Travis County, Texas. The anticipated
family residence on
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

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.

Figure 3. (APPLICANT’S NAME) lot and approximate location of proposed construction.

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.

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.

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

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.
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
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 goldencheeked 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.

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.

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.

APPENDIX 9:

FWS Fish and Wildlife Permit Application Form
(Form 3-200)
With Endangered/Threatened Species Attachment, Privacy Act Notices, FOIA Notice,
Application Fee Notice, and Instructions
and
NMFS Incidental Take Application Instructions

Expires (2/28/01)
OMB No. 1018-0094

Department of the Interior
U.S. Fish and Wildlife Service
FEDERAL FISH AND WILDLIFE LICENSE/PERMIT APPLICATION FORM
RETURN TO:

Type of Activity:
3-200-56 NATIVE ENDANGERED AND THREATENED
SPECIES - INCIDENTAL TAKE

COMPLETE IF APPLYING AS AN INDIVIDUAL

1. Name:
2. Street address:

3. County:

4. City, State, Zip code:
5. Date of birth:

6. Social Security No.:

7. Occupation:

8. List any business, agency, organizational, or institutional affiliation associated with the wildlife to be covered by this license or permit:

9. Home telephone number:

10. Work telephone number:

11. Fax number:

12. E:mail address:

COMPLETE IF APPLYING AS A BUSINESS, CORPORATION, PUBLIC AGENCY OR INSTITUTION

1. Name of business, agency or institution:

2. Tax identification no.:

3. Street address:

4. County:

5. City, State, Zip code:
6. Describe the type of business, agency, or institution:
7. Name and title of person responsible for permit (president, principal officer, director, etc.):
8. Home telephone number:

9. Work telephone number:

10. Fax number:

11. E:mail address:

ALL APPLICANTS COMPLETE

1. Do you currently have or have you had any Federal Fish and Wildlife License or Permit? Yes
If yes, list license or permit numbers:

2. Have you obtained any required state or foreign government approval to conduct the activity you propose? Yes
If yes, provide a copy of the license or permit.

Not required

3. Enclose check or money order payable to the U.S. FISH AND WILDLIFE SERVICE in the amount of $25.
Institutions which qualify under 50 CFR 13.11(d)(3) may be exempt from fees.
4. ATTACHMENTS: Complete the additional pages of this application. Application will not be considered complete without these pages.
Incomplete applications may be returned.
5. CERTIFICATION: I hereby certify that I have read and am familiar with the regulations contained in Title 50, Part 13, of the Code of Federal
Regulations and the other applicable parts in subchapter B of Chapter I of Title 50, and I further certify that the information submitted in this
application for a license or permit is complete and accurate to the best of my knowledge and belief. I understand that any false statement herein
may subject me to the criminal penalties of 18 U.S.C. 1001.
6. Signature (in ink) of applicant or person responsible for permit in Block A or B

7. Date:

Form 3-200-56 Rev. (2/98)
Page 1 of 2

Form # 3-200-56

Page 2 of 2
Endangered Species Incidental Take Permits

For Incidental Take Permit applications, the following specific information must be provided in
addition to the general information on page one of this application:
1.

Physical address or location of activities: Section/Township/Range, County tax parcel
number, or other formal legal description.

A complete description of activity(ies) to be authorized.

The common and scientific names of the species sought to be covered by the permit, as
well as, the number, age, and sex of such species, if known.

A conservation plan that specifies:

The impact that will likely result from the incidental taking.

What steps will be taken to monitor, minimize, and mitigate such impacts, the
funding that will be available to implement such steps, and the procedures to deal
with unforseen circumstances.

What alternative actions to such incidental taking have been considered and the
reasons why these alternatives are not proposed for use.

A certification notice that states: By submitting this application and receiving an
incidental take permit pursuant to Section 10(a)(1)(B) of the Endangered Species Act, the
landowner/permittee agrees that he/she owns the lands indicated in this application, or has
sufficient authority or rights over these lands to implement the measures of the Habitat
Conservation Plan. Further, upon receipt of the incidental take permit, the permittee
signing Form 3-200 will conduct the activities as specified in the Habitat Conservation
Plan and implementation agreement according to the terms and conditions, of the permit
and supporting documents.

The public reporting burden for these reporting requirements is estimated to be 2.5 hours,
including time for reviewing instructions, gathering and maintaining data, and completing and
reviewing the forms. Comments regarding the burden estimate or any other aspect of the
reporting requirement(s) should be directed to the Service Information Collection Clearance
Officer, MS 224 ARLSQ, Fish and Wildlife Service, Washington, DC 20240, or the Office of
Management and Budget, Attention: Desk Officer for the Department of the Interior;
Washington, DC 20503.
An agency may not conduct and a person is not required to respond to a collection of information
unless a currently valid OMB control number is displayed.

NOTICE TO:
APPLICANTS FOR FEDERAL FISH AND WILDLIFE LICENCES/PERMITS

PRIVACY ACT- NOTICE
In accordance with the Privacy Act of 1974 (S U.S.C. 552a), please be advised that:
1.

The gathering of information on fish and wildlife is authorized by:
(a) Bald Eagle Protection Act (16 U.S.C. 663a); (b) Endangered Species Act of 1973 (16
U.S.C. 1539); (c) Migratory Bird Treaty Act (16 U.S.C. 703-711); (d) Marine Mammal
Protection Act of 1972 (16 U.S.C. 1371-1383); (e) Lacey Act (18 U.S.C. 42 & 4 4);
and (f) Title 50, Part 13, Code of the Code of Federal Regulations.

Submission of requested information is required in order to process applications for
licenses or permits authorized under the above acts. With the exception of your social
security number, failure to provide all requested information may be sufficient cause for
the U.S. Fish and Wildlife Service to deny a permit.

Applications for licenses or permits authorized under the Endangered Species Act of 1973
(16 U.S.C. 1539) and the Marine Mammal Protection Act of 1972 (16 U.S.C.
1371-1383) may be published in the Federal Register as required by the two acts.

In the event a violation of a statute, regulations, rule, order, or license, whether civil,
criminal, or regulatory in nature is discovered during the application review process,
the requested information may be transferred to the appropriate Federal, State, local,
or foreign agency charged with investigating or prosecuting such violations.

In the event of litigation involving the records or the subject matter of the records, the
requested information may be transferred to the U.S. Department of Justice or
appropriate law enforcement authorities.

Information provided in the application may be disclosed to subject matter experts, and
State and other Federal agencies, for the sole purpose of obtaining advise relevant to
issuance of the permit.

For individuals, personal information such as home address and telephone number,
financial data, and personal identifiers (social security number, birth date, etc.) will be
removed prior to any release of the application.

FREEDOM OF INFORMATION ACT- NOTICE
8.

For organizations, businesses, or individuals operating as a business (i.e., permittees not
covered by the Privacy Act), we request that you identify any information that should be

considered privileged and confidential business information to allow the Service to meet
its responsibilities under FOIA. Confidential business information must be clearly marked
"Business Confidential" at the top of the letter or page and each succeeding page, and
must be accompanied by a nonconfidential summary of the confident information. The
nonconfidential summary and remaining documents may be made available to the public
under FOIA [43 CFR 2.13(c)(4), 43 CFR 2.15(d)(1)(i)].

NOTICE TO:
APPLICANTS FOR FEDERAL FISH AND WILDLIFE LICENSES/PERMITS (CONT.)

APPLICATION FEE- NOTICE
There is a $25.00 processing fee for incidental take permit applications under the Endangered
Species Act [50 CFR 17.22(b) and 50 CFR 17.32(b)]. The fee applies to permit applications,
renewals, and amendments.
A check (it does not need to be certified) or money order should be made payable to the "U.S.
Fish and Wildlife Service". The processing fee will not be refunded if the permit application is
abandoned or the permit is issued or denied. The fee may be refunded if the permit application is
withdrawn in writing before significant processing has occurred.
Fee Exemption: State or local government agencies or individuals or institutions under contract to
such agencies for proposed activities are exempt from paying this fee. Until further notice, the fee
will be waived for public institutions. As defined in 50 CFR 10.12, the term "public" as used in
reference to museums, zoological parks, and scientific institutions, refers to such as are open to
the general public and are privately owned and organized but are not operated for profit.

APPENDIX 10:

Genral Permit Conditions
50 CFR Part 13 (FWS)
50 CFR Part 217, 220, 222 (NMFS)

§ 12.42

50 CFR Ch. I (10–1–98 Edition)

(g) If the Solicitor decides that relief
should not be granted, the Solicitor
shall so notify the petitioner in writing, stating in the notification the reasons for denying relief. The petitioner
may then file a supplemental petition,
but no supplemental petition shall be
considered unless it is received within
60 days from the date of the Solicitor’s
notification denying the original petition.

shall constitute final administrative
action on the matter.
[47 FR 56861, Dec. 21, 1982]

Subpart F—Return of Property
§ 12.51 Return procedure.
If, at the conclusion of the appropriate proceedings, seized property is
to be returned to the owner or consignee, the Solicitor or Service shall
issue a letter or other document authorizing its return. This letter or
other document shall be delivered personally or sent by registered or certified mail, return receipt requested,
and shall identify the owner or consignee, the seized property, and, if appropriate, the bailee of the seized property. It shall also provide that upon
presentation of the letter or other document and proper identification, and
the signing of a receipt provided by the
Service, the seized property is authorized to be released, provided it is properly marked in accordance with applicable State or Federal requirements.

[45 FR 17864, Mar. 19, 1980, as amended at 47
FR 56861, Dec. 21, 1982]

§ 12.42 Recovery
costs.

certain

storage

If any wildlife, plant, or evidentiary
item is seized and forfeited under the
Endangered Species Act, 16 U.S.C. 1531
et seq., any person whose act or omission was the basis for the seizure may
be charged a reasonable fee for expenses to the United States connected
with the transfer, board, handling, or
storage of such property. If any fish,
wildlife or plant is seized in connection
with a violation of the Lacey Act
Amendments of 1981, 16 U.S.C. 3371, et
seq., any person convicted thereof, or
assessed a civil penalty therefor, may
be assessed a reasonable fee for expenses of the United States connected
with the storage, care and maintenance
of such property. Within a reasonable
time after forfeiture, the Service shall
send to such person by registered or
certified mail, return receipt requested, a bill for such fee. The bill
shall contain an itemized statement of
the applicable costs, together with instructions on the time and manner of
payment. Payment shall be made in accordance with the bill. The recipient of
any assessment of costs under this section who has an objection to the reasonableness of the costs described in
the bill may, within 30 days of the date
on which he received the bill, file written objections with the Regional Director of the Fish and Wildlife Service for
the Region in which the seizure occurred. Upon receipt of the written objections, the appropriate Regional Director will promptly review them and
within 30 days mail his final decision
to the party who filed objections. In all
cases, the Regional Director’s decision

PART 13—GENERAL PERMIT
PROCEDURES
Subpart A—Introduction
Sec.
13.1 General.
13.2 Purpose of regulations.
13.3 Scope of regulations.
13.4 Emergency variation from requirements.
13.5 Information collection requirements.

Subpart B—Application for Permits
13.11 Application procedures.
13.12 General information requirements on
applications for permits.

Subpart C—Permit Administration
13.21 Issuance of permits.
13.22 Renewal of permits.
13.23 Amendment of permits.
13.24 Right of succession by certain persons.
13.25 Permits not transferable; agents.
13.26 Discontinuance of permit activity.
13.27 Permit suspension.
13.28 Permit revocation.
13.29 Review procedures.

Subpart D—Conditions
13.41
13.42

Humane conditions.
Permits are specific.

U.S. Fish and Wildlife Serv., Interior

§ 13.5

13.43 Alteration of permits.
13.44 Display of permit.
13.45 Filing of reports.
13.46 Maintenance of records.
13.47 Inspection requirement.
13.48 Compliance with conditions of permit.
13.49 Surrender of permit.
13.50 Acceptance of liability.

dangered Wildlife and Plants’’ (part 17),
‘‘Marine Mammals’’ (part 18), ‘‘Migratory Birds’’ (part 21), ‘‘Eagles’’ (part 22)
and ‘‘Endangered Species Convention’’
(part 23). As used in this part 13, the
term ‘‘permit’’ shall refer to either a license, permit, or certificate as the context may require.

AUTHORITY: 16 U.S.C. 668a, 704, 712, 742j–1,
1382, 1538(d), 1539, 1540(f), 3374, 4901–4916; 18
U.S.C. 42; 19 U.S.C. 1202; E.O. 11911, 41 FR
15683; 31 U.S.C. 9701.

[42 FR 10465, Feb. 22, 1977, as amended at 42
FR 32377, June 24, 1977; 45 FR 56673, Aug. 25,
1980]

SOURCE: 39 FR 1161, Jan. 4, 1974, unless otherwise noted.

§ 13.4 Emergency variation from requirements.
The Director may approve variations
from the requirements of this part
when he finds that an emergency exists
and that the proposed variations will
not hinder effective administration of
this subchapter B, and will not be unlawful.

Subpart A—Introduction
§ 13.1 General.
Each person intending to engage in
an activity for which a permit is required by this subchapter B shall, before commencing such activity, obtain
a valid permit authorizing such activity. Each person who desires to obtain
the permit privileges authorized by
this subchapter must make application
for such permit in accordance with the
requirements of this part 13 and the
other regulations in this subchapter
which set forth the additional requirements for the specific permits desired.
If the activity for which permission is
sought is covered by the requirements
of more than one part of this subchapter, the requirements of each part
must be met. If the information required for each specific permitted activity is included, one application will
be accepted for all permits required,
and a single permit will be issued.

§ 13.5 Information collection requirements.
(a) The Office of Management and
Budget approved the information collection requirements contained in this
part 13 under 44 U.S.C. and assigned
OMB Control Number 1018–0092. The
Service may not conduct or sponsor,
and you are not required to respond, to
a collection of information unless it
displays a currently valid OMB control
number. We are collecting this information to provide information necessary to evaluate permit applications.
We will use this information to review
permit applications and make decisions, according to criteria established
in various Federal wildlife conservation statutes and regulations, on the
issuance, suspension, revocation, or denial permits. You must respond to obtain or retain a permit.
(b) We estimate the public reporting
burden for these reporting requirements to vary from 15 minutes to 4
hours per response, with an average of
0.803 hours per response, including time
for reviewing instructions, gathering
and maintaining data, and completing
and reviewing the forms. Direct comments regarding the burden estimate
or any other aspect of these reporting
requirements to the Service Information Collection Control Officer, MS–222
ARLSQ, U.S. Fish and Wildlife Service,
Washington, DC 20240, or the Office of
Management and Budget, Paperwork

§ 13.2 Purpose of regulations.
The regulations contained in this
part provide uniform rules, conditions,
and procedures for the application for
and the issuance, denial, suspension,
revocation, and general administration
of all permits issued pursuant to this
subchapter B.
[54 FR 38147, Sept. 14, 1989]

§ 13.3 Scope of regulations.
The provisions in this part are in addition to, and are not in lieu of, other
permit regulations of this subchapter
and apply to all permits issued thereunder, including ‘‘Import and Marking’’ (part 14), ‘‘Feather Imports’’ (part
15), ‘‘Injurious Wildlife’’ (part 16), ‘‘En-

§ 13.11

50 CFR Ch. I (10–1–98 Edition)

Reduction Project (1018–0092), Washington, DC 20603.

dangered species and marine mammal
permits should submit applications to
the Office of Management Authority
which are postmarked at least 90 calendar days prior to the requested effective date. Applicants for all other permits should submit applications to the
issuing office which are postmarked at
least 60 days prior to the requested effective date.
(d) Fees. (1) Unless otherwise exempted by this paragraph, applicants for
issuance or renewal of permits must
pay the required permit processing fee
at the time of application. Applicants
should pay fees by check or money
order made payable to ‘‘U.S. Fish and
Wildlife Service.’’ The Service will not
refund any application fee under any
circumstances if the Service has processed the application. However, the
Service may return the application fee
if the applicant withdraws the application before the Service has significantly processed it.
(2) Except as provided in paragraph
(d)(4) of this section the fee for processing any application is $25.00. If regulations in this subchapter require more
than one type of permit for an activity,
and the permits are issued by the same
office, the issuing office may issue one
consolidated permit authorizing the
activity. The issuing office may charge
only the highest single fee for the activity permitted.
(3) A fee shall not be charged to any
Federal, State or local government
agency, nor to any individual or institution under contract to such agency
for the proposed activities. The fee
may be waived or reduced for public institutions (see 50 CFR 10.12). Proof of
such status must accompany the application.
(4) Nonstandard fees.

[63 FR 52634, Oct. 1, 1998]

Subpart B—Application for Permits
§ 13.11 Application procedures.
The Service may not issue a permit
for any activity authorized by this subchapter B unless the applicant has filed
an application in accordance with the
following procedures. Applicants do not
have to submit a separate application
for each permit unless otherwise required by this subchapter.
(a) Forms. Applications must be submitted in writing on a Federal Fish
and Wildlife License/Permit Application (Form 3–200) or as otherwise specifically directed by the Service.
(b) Forwarding instructions. Applications for permits in the following categories should be forwarded to the
issuing office indicated below.
(1) Migratory bird banding permits
(50 CFR 21.22)—Bird Banding Laboratory, Office of Migratory Bird Management, U.S. Fish and Wildlife Service,
Laurel, Maryland 20708. (Special application forms must be used for bird
banding permits. They may be obtained
by writing to the Bird Banding Laboratory).
(2) Exception to designated port (50
CFR part 14), import/export license (50
CFR 14.93), migratory bird permit,
other than banding (50 CFR part 21)
and Bald or Golden eagle permits (50
CFR part 22)—Assistant Regional Director for Law Enforcement of District
in which the applicant resides (see 50
CFR 10.22 for addresses and boundaries
of the Law Enforcement Districts).
(3) Feather quota (50 CFR part 15), injurious wildlife (50 CFR part 16), endangered and threatened species (50 CFR
part 17), marine mammal (50 CFR part
18) and permits and certificates for the
Convention on International Trade in
Endangered Species (CITES) (50 CFR
part 23)—U.S. Fish and Wildlife Service, Federal Wildlife Permit Office,
P.O. Box 3654, Arlington, Virginia 22203.
(c) Time notice. The Service will process all applications as quickly as possible. However, it cannot guarantee
final action within the time limits the
applicant requests. Applicants for en-

Type of permit
Import/Export License (Section 14.93) ................
Marine Mammal (Section 18.31) .........................
Migratory Bird-Banding or Marking (21.22) .........
Bald or Golden Eagles (Part 22) .........................

Fee
$50.
$100.
None.
None.

(e) Abandoned or incomplete applications. Upon receipt of an incomplete or
improperly executed application, or if
the applicant does not submit the proper fees, the issuing office will notify
the applicant of the deficiency. If the

U.S. Fish and Wildlife Serv., Interior

§ 13.12

applicant fails to supply the correct information to complete the application
or to pay the required fees within 45
calendar days of the date of notification, the Service will consider the application abandoned. The Service will
not refund any fees for an abandoned
application.

chapter B of chapter I of title 50, Code of
Federal Regulations, and I further certify
that the information submitted in this application for a permit is complete and accurate
to the best of my knowledge and belief. I understand that any false statement herein
may subject me to suspension or revocation
of this permit and to the criminal penalties
of 18 U.S.C. 1001.

[47 FR 30785, July 15, 1982, as amended at 50
FR 52889, Dec. 26, 1985; 54 FR 4031, Jan. 27,
1989; 54 FR 38147, Sept. 14, 1989; 61 FR 31868,
June 21, 1996]

(6) Desired effective date of permit
except where issuance date is fixed by
the part under which the permit is
issued;
(7) Date;
(8) Signature of the applicant; and
(9) Such other information as the Director determines relevant to the processing of the application.
(b) Additional information required on
permit applications. As stated in paragraph (a)(3) of this section certain additional information is required on all
applications. These additional requirements may be found by referring to the
section of this subchapter B cited after
the type of permit for which application is being made:

§ 13.12 General information requirements on applications for permits.
(a) General information required for
all applications. All applications must
contain the following information:
(1) Applicant’s full name, mailing address, telephone number(s), and,
(i) If the applicant is an individual,
the date of birth, height, weight, hair
color, eye color, sex, and any business
or institutional affiliation of the applicant related to the requested permitted
activity; or
(ii) If the applicant is a corporation,
firm, partnership, association, institution, or public or private agency, the
name and address of the president or
principal officer and of the registered
agent for the service of process;
(2) Location where the requested permitted activity is to occur or be conducted;
(3) Reference to the part(s) and section(s) of this subchapter B as listed in
paragraph (b) of this section under
which the application is made for a
permit or permits, together with any
additional justification, including supporting documentation as required by
the referenced part(s) and section(s);
(4) If the requested permitted activity involves the import or re-export of
wildlife or plants from or to any foreign country, and the country of origin, or the country of export or re-export restricts the taking, possession,
transportation, exportation, or sale of
wildlife or plants, documentation as indicated in § 14.52(c) of this subchapter
B;
(5) Certification in the following language:

Type of permit
Importation at nondesignated ports:
Scientific .......................................................
Deterioration prevention ...............................
Economic hardship .......................................
Marking of package or container:
Symbol marking ............................................
Import/export license ....................................
Feather import quota: Importation or entry .........
Injurious wildlife: Importation or shipment ...........
Endangered wildlife and plant permits:
Similarity of appearance ...............................
Scientific, enhancement of propagation or
survival, incidental taking for wildlife ........
Scientific, propagation, or survival for plants
Economic hardship for wildlife ......................
Economic hardship for plants .......................
Threatened wildlife and plant permits:
Similarity of appearance ...............................
General for wildlife ........................................
American alligator–buyer or tanner ..............
General for plants .........................................
Marine mammals permits:
Scientific research ........................................
Public display ................................................
Migratory bird permits:
Banding or marking ......................................
Scientific collecting .......................................
Taxidermist ...................................................
Waterfowl sale and disposal ........................
Special aviculturist ........................................
Special purpose ............................................
Falconry ........................................................
Raptor propagation permit ............................
Depredation control ......................................
Eagle permits:
Scientific or exhibition ...................................
Indian religious use ......................................
Depredation control ......................................
Falconry purposes ........................................

I hereby certify that I have read and am familiar with the regulations contained in
title 50, part 13, of the Code of Federal Regulations and the other applicable parts in sub-

Section
14.31
14.32
14.33
14.83
14.93
15.21
16.22
17.52
17.22
17.62
17.23
17.63
17.52
17.32
17.42(a)
17.72
18.31
18.31
21.22
21.23
21.24
21.25
21.26
21.27
21.28
21.30
21.41
22.21
22.22
22.23
22.24

§ 13.21

50 CFR Ch. I (10–1–98 Edition)
Type of permit

Take of golden eagle nests ..........................
Endangered Species Convention permits ...........

(1) A conviction, or entry of a plea of
guilty or nolo contendere, for a felony
violation of the Lacey Act, the Migratory Bird Treaty Act, or the Bald and
Golden Eagle Protection Act disqualifies any such person from receiving or
exercising the privileges of a permit,
unless such disqualification has been
expressly waived by the Director in response to a written petition.
(2) The revocation of a permit for
reasons found in § 13.28 (a)(1) or (a)(2)
disqualifies any such person from receiving or exercising the privileges of a
similar permit for a period of five years
from the date of the final agency decision on such revocation.
(3) The failure to pay any required
fees or assessed costs and penalties,
whether or not reduced to judgement
disqualifies such person from receiving
or exercising the privileges of a permit
as long as such moneys are owed to the
United States. This requirement shall
not apply to any civil penalty presently subject to administrative or judicial appeal; provided that the pendency
of a collection action brought by the
United States or its assignees shall not
constitute an appeal within the meaning of this subsection.
(4) The failure to submit timely, accurate, or valid reports as required
may disqualify such person from receiving or exercising the privileges of a
permit as long as the deficiency exists.
(d) Use of supplemental information.
The issuing officer, in making a determination under this subsection, may
use any information available that is
relevant to the issue. This may include
any prior conviction, or entry of a plea
of guilty or nolo contendere, or assessment of civil or criminal penalty for a
violation of any Federal or State law
or regulation governing the permitted
activity. It may also include any prior
permit revocations or suspensions, or
any reports of State or local officials.
The issuing officer shall consider all
relevant facts or information available,
and may make independent inquiry or
investigation to verify information or
substantiate qualifications asserted by
the applicant.
(e) Conditions of issuance and acceptance. (1) Any permit automatically incorporates within its terms the conditions and requirements of subpart D of

Section
22.25
23.15

[39 FR 1161, Jan. 4, 1974, as amended at 42 FR
10465, Feb. 22, 1977; 42 FR 32377, June 24, 1977;
44 FR 54006, Sept. 17, 1979; 44 FR 59083, Oct.
12, 1979; 45 FR 56673, Aug. 25, 1980; 45 FR 78154,
Nov. 25, 1980; 46 FR 42680, Aug. 24, 1981; 48 FR
31607, July 8, 1983; 48 FR 57300, Dec. 29, 1983;
50 FR 39687, Sept. 30, 1985; 50 FR 45408, Oct.
31, 1985; 54 FR 38147, Sept. 14, 1989]

Subpart C—Permit Administration
§ 13.21 Issuance of permits.
(a) No permit may be issued prior to
the receipt of a written application
therefor, unless a written variation
from the requirements, as authorized
by § 13.4, is inserted into the official file
of the Bureau. An oral or written representation of an employee or agent of
the United States Government, or an
action of such employee or agent, shall
not be construed as a permit unless it
meets the requirements of a permit as
defined in 50 CFR 10.12.
(b) Upon receipt of a properly executed application for a permit, the Director shall issue the appropriate permit unless:
(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 required, or
has made false statements as to any
material fact, in connection with his
application;
(3) The applicant has failed to demonstrate a valid justification for the
permit and a showing of responsibility;
(4) The authorization requested potentially threatens a wildlife or plant
population, or
(5) The Director finds through further inquiry or investigation, or otherwise, that the applicant is not qualified.
(c) Disqualifying factors. Any one of
the following will disqualify a person
from receiving permits issued under
this part.

U.S. Fish and Wildlife Serv., Interior

§ 13.24

this part and of any part(s) or section(s) specifically authorizing or governing the activity for which the permit is issued.
(2) Any person accepting and holding
a permit under this subchapter B acknowledges the necessity for close regulation and monitoring of the permitted activity by the Government. By
accepting such permit, the permittee
consents to and shall allow entry by
agents or employees of the Service
upon premises where the permitted activity is conducted at any reasonable
hour. Service agents or employees may
enter such premises to inspect the location; any books, records, or permits
required to be kept by this subchapter
B; and any wildlife or plants kept
under authority of the permit.
(f) Term of permit. Unless otherwise
modified, a permit is valid during the
period specified on the face of the permit. Such period shall include the effective date and the date of expiration.
(g) Denial. The issuing officer may
deny a permit to any applicant who
fails to meet the issuance criteria set
forth in this section or in the part(s) or
section(s) specifically governing the
activity for which the permit is requested.

the Service has acted on such person’s
application for renewal.
(d) Denial. The issuing officer may
deny renewal of a permit to any applicant who fails to meet the issuance criteria set forth in § 13.21 of this part, or
in the part(s) or section(s) specifically
governing the activity for which the
renewal is requested.
[54 FR 38148, Sept. 14, 1989]

§ 13.23 Amendment of permits.
(a) Permittee’s request. Where circumstances have changed so that a permittee desires to have any condition of
his permit modified, such permittee
must submit a full written justification and supporting information in
conformity with this part and the part
under which the permit was issued.
(b) Service reservation. The Service reserves the right to amend any permit
for just cause at any time during its
term, upon written finding of necessity.
(c) Change of name or address. A permittee is not required to obtain a new
permit if there is a change in the legal
individual or business name, or in the
mailing address of the permittee. A
permittee is required to notify the
issuing office within 10 calendar days
of such change. This provision does not
authorize any change in location of the
conduct of the permitted activity when
approval of the location is a qualifying
condition of the permit.

[39 FR 1161, Jan. 4, 1974, as amended at 42 FR
32377, June 24, 1977; 47 FR 30785, July 15, 1982;
54 FR 38148, Sept. 14, 1989]

§ 13.22 Renewal of permits.
(a) Application for renewal. Applicants
for renewal of a permit must submit a
written application at least 30 days
prior to the expiration date of the permit. Applicants must certify in the
form required by § 13.12(a)(5) that all
statements and information in the
original application remain current
and correct, unless previously changed
or corrected. If such information is no
longer current or correct, the applicant
must provide corrected information.
(b) Renewal criteria. The Service shall
issue a renewal of a permit if the applicant meets the criteria for issuance in
§ 13.21(b) and is not disqualified under
§ 13.21(c).
(c) Continuation of permitted activity.
Any person holding a valid, renewable
permit, who has complied with this
section, may continue the activities
authorized by the expired permit until

[54 FR 38148, Sept. 14, 1989]

§ 13.24 Right of succession by certain
persons.
(a) Certain persons, other than the
permittee are granted the right to
carry on a permitted activity for the
remainder of the term of a current permit provided they comply with the provisions of paragraph (b) of this section.
Such persons are the following:
(1) The surviving spouse, child, executor, administrator, or other legal
representative of a deceased permittee;
and
(2) A receiver or trustee in bankruptcy or a court designated assignee
for the benefit of creditors.
(b) In order to secure the right provided in this section the person or persons desiring to continue the activity

§ 13.25

50 CFR Ch. I (10–1–98 Edition)

shall furnish the permit to the issuing
officer for endorsement within 90 days
from the date the successor begins to
carry on the activity.

regulations governing the conduct of
the permitted activity. The issuing officer may also suspend all or part of
the privileges authorized by a permit if
the permittee fails to pay any fees,
penalties or costs owed to the Government. Such suspension shall remain in
effect until the issuing officer determines that the permittee has corrected
the deficiencies.
(b) Procedure for suspension. (1) When
the issuing officer believes there are
valid grounds for suspending a permit
the permittee shall be notified in writing of the proposed suspension by certified or registered mail. This notice
shall identify the permit to be suspended, the reason(s) for such suspension, the actions necessary to correct
the deficiencies, and inform the permittee of the right to object to the proposed suspension. The issuing officer
may amend any notice of suspension at
any time.
(2) Upon receipt of a notice of proposed suspension the permittee may
file a written objection to the proposed
action. Such objection must be in writing, must be filed within 45 calendar
days of the date of the notice of proposal, must state the reasons why the
permittee objects to the proposed suspension, and may include supporting
documentation.
(3) A decision on the suspension shall
be made within 45 days after the end of
the objection period. The issuing officer shall notify the permittee in writing of the Service’s decision and the
reasons therefore. The issuing officer
shall also provide the applicant with
the information concerning the right
to request reconsideration of the decision under § 13.29 of this part and the
procedures for requesting reconsideration.

[54 FR 38149, Sept. 14, 1989]

§ 13.25 Permits
not
transferable;
agents.
(a) Permits issued under this part are
not transferable or assignable. Some
permits authorize certain activities in
connection with a business or commercial enterprise and in the event of any
lease, sale, or transfer of such business
entity, the successor must obtain a
permit prior to continuing the permitted activity. However, certain limited rights of succession are provided
in § 13.24.
(b) Except as otherwise stated on the
face of the permit, any person who is
under the direct control of the permittee, or who is employed by or under
contract to the permittee for purposes
authorized by the permit, may carry
out the activity authorized by the permit, as an agent for the permittee.
[54 FR 38149, Sept. 14, 1989]

§ 13.26 Discontinuance of permit activity.
When a permittee, or any successor
to a permittee as provided for by § 13.24,
discontinues activities authorized by a
permit, the permittee shall within 30
calendar days of the discontinuance return the permit to the issuing office together with a written statement surrendering the permit for cancellation.
The permit shall be deemed void and
cancelled upon its receipt by the
issuing office. No refund of any fees
paid for issuance of the permit or for
any other fees or costs associated with
a permitted activity shall be made
when a permit is surrendered for cancellation for any reason prior to the expiration date stated on the face of the
permit.

[54 FR 38149, Sept. 14, 1989]

§ 13.28

Permit revocation.

(a) Criteria for revocation. A permit
may be revoked for any of the following reasons:
(1) The permittee willfully violates
any Federal or State statute or regulation, or any Indian tribal law or regulation, or any law or regulation of any
foreign country, which involves a violation of the conditions of the permit

[54 FR 38149, Sept. 14, 1989]

§ 13.27 Permit suspension.
(a) Criteria for suspension. The privileges of exercising some or all of the
permit authority may be suspended at
any time if the permittee is not in
compliance with the conditions of the
permit, or with any applicable laws or

U.S. Fish and Wildlife Serv., Interior

§ 13.29

or of the laws or regulations governing
the permitted activity; or
(2) The permittee fails within 60 days
to correct deficiencies that were the
cause of a permit suspension; or
(3) The permittee becomes disqualified under § 13.21(c) of this part; or
(4) A change occurs in the statute or
regulation authorizing the permit that
prohibits the continuation of a permit
issued by the Service; or
(5) The population(s) of the wildlife
or plant that is subject of the permit
declines to the extent that continuation of the permitted activity would
be detrimental to maintenance or recovery of the affected population.
(b) Procedure for revocation. (1) When
the issuing officer believes there are
valid grounds for revoking a permit,
the permittee shall be notified in writing of the proposed revocation by certified or registered mail. This notice
shall identify the permit to be revoked,
the reason(s) for such revocation, the
proposed disposition of the wildlife, if
any, and inform the permittee of the
right to object to the proposed revocation. The issuing officer may amend
any notice of revocation at any time.
(2) Upon receipt of a notice of proposed revocation the permittee may
file a written objection to the proposed
action. Such objection must be in writing, must be filed within 45 calendar
days of the date of the notice of proposal, must state the reasons why the
permittee objects to the proposed revocation, and may include supporting
documentation.
(3) A decision on the revocation shall
be made within 45 days after the end of
the objection period. The issuing officer shall notify the permittee in writing of the Service’s decision and the
reasons therefore, together with the information concerning the right to request and the procedures for requesting
reconsideration.
(4) Unless a permittee files a timely
request for reconsideration, any wildlife held under authority of a permit
that is revoked must be disposed of in
accordance with instructions of the
issuing officer. If a permittee files a
timely request for reconsideration of a
proposed revocation, such permittee
may retain possession of any wildlife
held under authority of the permit

until final disposition of the appeal
process.
[54 FR 38149, Sept. 14, 1989]

§ 13.29 Review procedures.
(a) Request for reconsideration. Any
person may request reconsideration of
an action under this part if that person
is one of the following:
(1) An applicant for a permit who has
received written notice of denial;
(2) An applicant for renewal who has
received written notice that a renewal
is denied;
(3) A permittee who has a permit
amended, suspended, or revoked, except for those actions which are required by changes in statutes or regulations, or are emergency changes of
limited applicability for which an expiration date is set within 90 days of the
permit change; or
(4) A permittee who has a permit
issued or renewed but has not been
granted authority by the permit to perform all activities requested in the application, except when the activity requested is one for which there is no
lawful authority to issue a permit.
(b) Method of requesting reconsideration. Any person requesting reconsideration of an action under this part
must comply with the following criteria:
(1) Any request for reconsideration
must be in writing, signed by the person requesting reconsideration or by
the legal representative of that person,
and must be submitted to the issuing
officer.
(2) The request for reconsideration
must be received by the issuing officer
within 45 calendar days of the date of
notification of the decision for which
reconsideration is being requested.
(3) The request for reconsideration
shall state the decision for which reconsideration is being requested and
shall state the reason(s) for the reconsideration, including presenting any
new information or facts pertinent to
the issue(s) raised by the request for
reconsideration.
(4) The request for reconsideration
shall contain a certification in substantially the same form as that provided by § 13.12(a)(5). If a request for reconsideration does not contain such
certification, but is otherwise timely

§ 13.41

50 CFR Ch. I (10–1–98 Edition)

and appropriate, it shall be held and
the person submitting the request shall
be given written notice of the need to
submit the certification within 15 calendar days. Failure to submit certification shall result in the request being
rejected as insufficient in form and
content.
(c) Inquiry by the Service. The Service
may institute a separate inquiry into
the matter under consideration.
(d) Determination of grant or denial of
a request for reconsideration. The issuing
officer shall notify the permittee of the
Service’s decision within 45 days of the
receipt of the request for reconsideration. This notification shall be in
writing, shall state the reasons for the
decision, and shall contain a description of the evidence which was relied
upon by the issuing officer. The notification shall also provide information
concerning the right to appeal, the official to whom an appeal may be addressed, and the procedures for making
an appeal.
(e) Appeal. A person who has received
an adverse decision following submission of a request for reconsideration
may submit a written appeal to the Regional Director for the region in which
the issuing office is located, or to the
Director for offices which report directly to the Director. An appeal must
be submitted within 45 days of the date
of the notification of the decision on
the request for reconsideration. The
appeal shall state the reason(s) and
issue(s) upon which the appeal is based
and may contain any additional evidence or arguments to support the appeal.
(f) Decision on appeal. (1) Before a decision is made concerning the appeal
the appellant may present oral arguments before the Regional Director or
the Director, as appropriate, if such official judges oral arguments are necessary to clarify issues raised in the
written record.
(2) The Service shall notify the appellant in writing of its decision within 45
calendar days of receipt of the appeal,
unless extended for good cause and the
appellant notified of the extension.
(3) The decision of the Regional Director or the Director shall constitute

the final administrative decision of the
Department of the Interior.
[54 FR 38149, Sept. 14, 1989]

Subpart D—Conditions
§ 13.41

Humane conditions.

Any live wildlife possessed under a
permit must be maintained under humane and healthful conditions.
[54 FR 38150, Sept. 14, 1989]

§ 13.42

Permits are specific.

The authorizations on the face of a
permit which set forth specific times,
dates, places, methods of taking, numbers and kinds of wildlife or plants, location of activity, authorize certain
circumscribed transactions, or otherwise permit a specifically limited matter, are to be strictly construed and
shall not be interpreted to permit similar or related matters outside the scope
of strict construction.
[39 FR 1161, Jan. 4, 1974, as amended at 42 FR
32377, June 24, 1977]

§ 13.43

Alteration of permits.

Permits shall not be altered, erased,
or mutilated, and any permit which
has been altered, erased, or mutilated
shall immediately become invalid. Unless specifically permitted on the face
thereof, no permit shall be copied, nor
shall any copy of a permit issued pursuant to this subchapter B be displayed, offered for inspection, or otherwise used for any official purpose for
which the permit was issued.
§ 13.44

Display of permit.

Any permit issued under this part
shall be displayed for inspection upon
request to the Director or his agent, or
to any other person relying upon its
existence.
§ 13.45

Filing of reports.

Permittees may be required to file
reports of the activities conducted
under the permit. Any such reports
shall be filed not later than March 31
for the preceding calendar year ending
December 31, or any portion thereof,
during which a permit was in force, unless the regulations of this subchapter

U.S. Fish and Wildlife Serv., Interior

Pt. 14

B or the provisions of the permit set
forth other reporting requirements.

all appeal procedures have been exhausted.

§ 13.46 Maintenance of records.

[54 FR 38150, Sept. 14, 1989]

From the date of issuance of the permit, the permittee shall maintain complete and accurate records of any taking, possession, transportation, sale,
purchase, barter, exportation, or importation of plants obtained from the
wild (excluding seeds) or wildlife pursuant to such permit. Such records shall
be kept current and shall include
names and addresses of persons with
whom any plant obtained from the wild
(excluding seeds) or wildlife has been
purchased, sold, bartered, or otherwise
transferred, and the date of such transaction, and such other information as
may be required or appropriate. Such
records shall be legibly written or reproducible in English and shall be
maintained for five years from the date
of expiration of the permit.

§ 13.50 Acceptance of liability.
Any person holding a permit under
subchapter B assumes all liability and
responsibility for the conduct of any
activity conducted under the authority
of such permit.
[54 FR 38150, Sept. 14, 1989]

PART 14—IMPORTATION, EXPORTATION, AND TRANSPORTATION
OF WILDLIFE
Subpart A—Introduction
Sec.
14.1
14.2
14.3
14.4

Purpose of regulations.
Scope of regulations.
Information collection requirements.
Definitions.

Subpart B—Importation and Exportation at
Designated Ports

[39 FR 1161, Jan. 4, 1974, as amended at 42 FR
32377, June 24, 1977; 54 FR 38150, Sept. 14, 1989]

14.11 General restrictions.
14.12 Designated ports.
14.13 Emergency diversion.
14.14 In-transit shipments.
14.15 Personal baggage and household effects.
14.16 Border ports.
14.17 Personally owned pet birds.
14.18 Marine mammals.
14.19 Special ports.
14.20 Exceptions by permit.
14.21 Shellfish and fishery products.
14.22 Certain antique articles.
14.23 Live farm-raised fish and farm-raised
fish eggs.
14.24 Scientific specimens.

§ 13.47 Inspection requirement.
Any person holding a permit under
this subchapter B shall allow the Director’s agent to enter his premises at
any reasonable hour to inspect any
wildlife or plant held or to inspect,
audit, or copy any permits, books, or
records required to be kept by regulations of this subchapter B.
[39 FR 1161, Jan. 4, 1974, as amended at 42 FR
32377, June 24, 1977]

§ 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
under authority of such permit must
comply with all conditions of the permit and with all appllicable laws and
regulations governing the permitted
activity.

14.31 Permits to import or export wildlife at
nondesignated port for scientific purposes.
14.32 Permits to import or export wildlife at
nondesignated port to minimize deterioration or loss.
14.33 Permits to import or export wildlife at
nondesignated port to alleviate undue
economic hardship.

[54 FR 38150, Sept. 14, 1989]

§ 13.49 Surrender of permit.

Subpart D

Any person holding a permit under
subchapter B shall surrender such permit to the issuing officer upon notification that the permit has been suspended or revoked by the Service, and

[Reserved]

Subpart E—Inspection and Clearance of
Wildlife
14.51
14.52

Inspection of wildlife.
Clearance of imported wildlife.

National Marine Fisheries Service/NOAA, Commerce

§ 217.1

fication, is not considered a substantive modification.
(b) If the National Marine Fisheries
Service determines that an emergency
exists that poses a significant risk to
the well-being of the species or stocks
of marine mammals specified in
§ 216.151, or that significantly and detrimentally alters the scheduling of explosives detonation within the area
specified in § 216.151, the Letter of Authorization issued pursuant to § 216.106,
or renewed pursuant to this section
may be substantively modified without
prior notice and an opportunity for
public comment. A notice will be published in the FEDERAL REGISTER subsequent to the action.

taking and a description of any measures that will be taken in the following
year to prevent exceeding the authorized incidental take level.
(5) Results of any population assessment studies made on marine mammals in the Outer Sea Test Range during the previous year.
§ 216.156 Renewal of Letter of Authorization.
(a) A Letter of Authorization issued
under § 216.106 for the activity identified in § 216.151(a) will be renewed annually upon:
(1) Timely receipt of the reports required under § 216.155(f) and (g), which
have been reviewed by the Assistant
Administrator for Fisheries, NOAA,
and determined to be acceptable;
(2) A determination that the maximum incidental take authorizations in
§ 216.151(b) will not be exceeded; and
(3) A determination that the mitigation
measures
required
under
§ 216.153(b) and the Letter of Authorization have been undertaken.
(b) If a species’ annual authorization
is exceeded, the National Marine Fisheries Service will review the documentation submitted with the annual
report required under § 216.155(g), to determine that the taking is not having
more than a negligible impact on the
species or stock involved.
(c) Notice of issuance of a renewal of
the Letter of Authorization will be
published in the FEDERAL REGISTER.

[59 FR 5126, Feb. 3, 1994. Redesignated and
amended at 61 FR 15887, 15891, Apr. 10, 1996]

Subparts O–Q [Reserved]
PART 217—GENERAL PROVISIONS
Subpart A—Introduction
Sec.
217.1
217.2
217.3
217.4

Purpose of regulations.
Scope of regulations.
Other applicable laws.
When regulations apply.

Subpart B—Definitions
217.12

Definitions.

Subpart C—Addresses

[59 FR 5126, Feb. 3, 1994. Redesignated and
amended at 61 FR 15887, 15890–15891, Apr. 10,
1996]

217.21 Assistant Administrator.
217.22 Office of Marine Mammals and Endangered Species.
217.23 Enforcement Division.

§ 216.157 Modifications to Letter of Authorization.

AUTHORITY: 16 U.S.C. 742a et seq., 1361 et
seq., and 1531–1544, unless otherwise noted.

(a) In addition to complying with the
provisions of § 216.106, except as provided in paragraph (b) of this section,
no substantive modification, including
withdrawal or suspension, to the Letter of Authorization issued pursuant to
§ 216.106 and subject to the provisions of
this subpart shall be made until after
notice and an opportunity for public
comment. For purposes of this paragraph, renewal of a Letter of Authorization under § 216.146, without modi-

Subpart A—Introduction
§ 217.1

Purpose of regulations.

The regulations of parts 216 through
227 are promulgated to implement the
following statutes enforced by the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce, which regulate the taking, possession, transportation, sale, purchase,

§ 217.2

50 CFR Ch. II (10–1–98 Edition)
(a) Civil penalty proceedings. Except as
otherwise provided in § 218.25, the civil
penalty assessment procedures contained in parts 216 through 227 of this
chapter shall apply only to any proceeding instituted by notice of violation dated subsequent to the effective
date of these regulations, regardless of
when the act or omission which is the
basis of a civil penalty proceeding occurred.
(b) [Reserved]

barter, exportation, and importation of
wildlife.
(Endangered Species Act of 1973, section
11(f), 87 Stat. 884, Pub. L. 93–205; Fish and
Wildlife Act of 1956, 16 U.S.C. 742a–1)
[39 FR 41370, Nov. 27, 1974, as amended at 52
FR 24250, June 29, 1987]

§ 217.2 Scope of regulations.
The various provisions of parts 216
through 227 of this chapter are interrelated, and particular note should be
taken that the parts must be construed
with reference to each other. The regulations in parts 216 through 227 apply
only for fish or wildlife under the jurisdictional responsibilities of the Secretary of Commerce for the purpose of
carrying out the Endangered Species
Act of 1973 (see part 222, § 222.23(a)). Endangered species of fish or wildlife
other than those covered by these regulations are under the jurisdiction of
the Secretary of the Interior. For rules
and procedures relating to such species, see 50 CFR parts 10 through 17.

[39 FR 41370, Nov. 27, 1974, as amended at 52
FR 24250, June 29, 1987]

Subpart B—Definitions
§ 217.12

Definitions.

Accelerator funnel means a device
used to accelerate the flow of water
through a shrimp trawl net.
Act means the Endangered Species
Act of 1973, as amended (Pub. L.
93–205).
Approved TED means:
(1) A hard TED that complies with
the generic design criteria set forth in
50 CFR 227.72(e)(4)(i). (A hard TED may
be modified as specifically authorized
by 50 CFR 227.72(e)(4)(iv)); or
(2) A soft TED that complies with the
provisions of 50 CFR 227.72(e)(4)(iii); or
(3) A special hard TED which complies with the provisions of 50 CFR
227.72(e)(4)(ii).
Assistant Administrator means the Assistant Administrator for Fisheries of
the National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of Commerce, or his authorized representative.
Atlantic Area means all waters of the
Atlantic Ocean south of 36°33′00.8″ N.
latitude (the line of the North Carolina/Virginia border) and adjacent seas,
other than waters of the Gulf Area, and
all waters shoreward thereof (including
ports).
Atlantic Shrimp Fishery-Sea Turtle
Conservation Area (Atlantic SFSTCA)
means the inshore and offshore waters
extending to 10 nautical miles (18.5 km)
offshore along the coast of the States
of Georgia and South Carolina from the
Georgia-Florida border (defined as the
line along 30°42′45.6′′ N. lat.) to the
North Carolina-South Carolina border

[39 FR 41370, Nov. 27, 1974, as amended at 52
FR 24250, June 29, 1987]

§ 217.3 Other applicable laws.
No statute or regulation of any State
shall be construed to relieve a person
from the restrictions, conditions, and
requirements contained in parts 216
through 227 of this chapter. In addition, nothing in parts 216 through 227 of
this chapter, nor any permit issued
under parts 217 through 228 of this
chapter, shall be construed to relieve a
person from any other requirements
imposed by a statute or regulation of
any State or of the United States, including any applicable health, quarantine, agricultural, or customs laws
or regulations, or other National Marine Fisheries Service enforced statutes or regulations.
[39 FR 41370, Nov. 27, 1974, as amended at 52
FR 24250, June 29, 1987]

§ 217.4 When regulations apply.
The regulations of parts 216 through
227 of this chapter shall apply to all
matters, including the processing of
permits, arising after the effective date
of such regulations, with the following
exception:

National Marine Fisheries Service/NOAA, Commerce
(defined as the line extending in a direction of 135°34′55′′ from true north
from the North Carolina-South Carolina land boundary, as marked by the
border station on Bird Island at 33°
51′07.9′′ N. lat., 078°32′32.6′′ W. long.).
Authorized officer means:
(1) Any commissioned, warrant, or
petty officer of the U.S. Coast Guard;
(2) Any special agent or enforcement
officer of the National Marine Fisheries Service;
(3) Any officer designated by the head
of a Federal or state agency that has
entered into an agreement with the
Secretary or the Commandant of the
Coast Guard to enforce the provisions
of the Act; or
(4) Any Coast Guard personnel accompanying and acting under the direction of any person described in paragraph (1) of this definition.
Bait shrimper means a shrimp trawler
that fishes for and retains its shrimp
catch alive for the purpose of selling it
for use as bait.
Commercial activity means all activities of industry and trade, including,
but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating
such buying and selling: Provided, however, That it does not include the exhibition of commodities by museums or
similar cultural or historical organizations.
Country of exportation means the last
country from which the animal was exported before importation into the
United States.
Country of origin means the country
where the animal was taken from the
wild, or the country of natal origin of
the animal.
Fish or wildlife means any member of
the animal kingdom, including without
limitation any mammal, fish, bird (including any migratory, nonmigratory,
or endangered bird for which protection is also afforded by treaty or other
international agreement), amphibian,
reptile, mollusk, crustacean, arthropod
or other invertebrate, and includes any
part, product, egg, or offspring thereof,
or the dead body or parts thereof.
Fishing, or to fish, means:
(1) The catching taking or harvesting
of fish or wildlife;

§ 217.12

(2) The attempted catching, taking,
or harvesting of fish or wildlife;
(3) Any other activity that can reasonably be expected to result in the
catching, taking, or harvesting of fish
or wildlife; or
(4) Any operations on any waters in
support of, or in preparation for, any
activity described in paragraphs (1)
through (3) of this definition.
Footrope means a weighted rope or
cable attached to the lower lip (bottom
edge) of the mouth of a trawl net along
the forwardmost webbing.
Footrope length means the distance
between the points at which the ends of
the footrope are attached to the trawl
net, measured along the forwardmost
webbing.
Foreign commerce includes, among
other things, any transaction (1) between persons within one foreign country, or (2) between persons in two or
more foreign countries, or (3) between
a person within the United States and
a person in one or more foreign countries, or (4) between persons within the
United States, where the fish or wildlife in question are moving in any
country or countries outside the
United States.
Four-seam, straight-wing trawl means
a design of shrimp trawl in which the
main body of the trawl is formed from
a top panel, a bottom panel, and two
side panels of webbing. The upper and
lower edges of the side panels of webbing are parallel over the entire length.
Four-seam, tapered-wing trawl means a
design of shrimp trawl in which the
main body of the trawl is formed from
a top panel, a bottom panel, and two
side panels of webbing. The upper and
lower edges of the side panels of webbing converge toward the rear of the
trawl.
Gulf Area means all waters of the
Gulf of Mexico west of 81° W. longitude
(the line at which the Gulf Area meets
the Atlantic Area) and all waters
shoreward thereof (including ports).
Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA) means the
offshore waters extending to 10 nautical miles (18.5 km) offshore along the
coast of the States of Texas and Louisiana from the South Pass of the Mississippi River (west of 89°08.5′ W. long.)
to the U.S.-Mexican border.

§ 217.12

50 CFR Ch. II (10–1–98 Edition)

Hard TED means a rigid deflector
grid and associated hardware designed
to be installed in a trawl net forward of
the codend for the purpose of excluding
sea turtles from the net.
Headrope means a rope that is attached to the upper lip (top edge) of the
mouth of a trawl net along the
forewardmost webbing.
Headrope length means the distance
between the points at which the ends of
the headrope are attached to the trawl
net, measured along the forewardmost
webbing.
Import means to land on, bring into,
or introduce into, or attempt to land
on, bring into, or introduce into any
place subject to the jurisdiction of the
United States, whether or not such
landing, bringing, or introduction constitutes an importation within the
meaning of the tariff laws of the
United States.
Inshore means marine and tidal waters landward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea,
1972), as depicted or noted on nautical
charts published by the National Oceanic and Atmospheric Administration
(Coast Charts, 1:80,000 scale) and as described in 33 CFR part 80.
Leatherback conservation zone means
all inshore and offshore waters bounded
on the south by a line along 28°24.6′ N.
lat. (Cape Canaveral, FL), and bounded
on the north by a line along 36°30.5′ N.
lat. (North Carolina-Virginia border).
Length in reference to a shrimp
trawler, means the distance from the
tip of the vessel’s bow to the tip of its
stern.
North Carolina restricted area means
that portion of the offshore waters
bounded on the north by a line along
34°17.6′ N. latitude (Rich Inlet, North
Carolina) and 34°35.7′ N. latitude
(Browns Inlet, North Carolina) to a distance of 1 nautical mile seaward of the
72 COLREGS demarcation line (International Regulations for Preventing
Collisions at Sea, 1972).
Offshore means marine and tidal waters seaward of the 72 COLREGS demarcation line (International Regulations for Preventing Collisions at Sea,
1972), as depicted or noted on nautical
charts published by the National Oceanic and Atmospheric Administration

(Coast Charts, 1:80,000 scale) and as described in 33 CFR part 80.
Permit or ‘‘Certificate of exemption’’
means any document so designated by
the National Marine Fisheries Service
and signed by an authorized official of
the National Marine Fisheries Service,
including any document which modifies, amends, extends or renews any
permit or certificate of exemption.
Person means 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 or political subdivision thereof, or of any foreign government.
Possession means the detention and
control, or the manual or ideal custody
of anything which may be the subject
of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who
exercises it in one’s place and name.
Possession includes the act or state of
possessing and that condition of facts
under which one can exercise his power
over a corporeal thing at his pleasure
to the exclusion of all other persons.
Possession includes constructive possession which means not actual but assumed to exist, where one claims to
hold by virtue of some title, without
having actual custody.
Pre-Act endangered species part means
any sperm whale oil, including derivatives and products thereof, which was
lawfully held within the United States
on December 28, 1973 in the course of a
commercial activity; or any finished
scrimshaw product, if such product or
the raw material for such product was
lawfully held within the United States
on December 28, 1973, in the course of a
commercial activity.
Pusher-head trawl (chopsticks) means
a trawl that is spread by poles suspended in a ‘‘V’’ configuration from the
bow of the trawler.
Right whale, as used in subpart D of
this part, means any whale that is a
member of the western North Atlantic
population of the northern right whale
species (Eubalaena glacialis).
Scrimshaw product means any art
form which involves the substantial
etching or engraving of designs upon,

National Marine Fisheries Service/NOAA, Commerce
or the substantial carving of figures,
patterns, or designs from any bone or
tooth of any marine mammal of the
order Cetacea. For purposes of this
part, polishing or the adding of minor
superficial markings does not constitute substantial etching, engraving
or carving.
Secretary means the Secretary of
Commerce or his authorized representative.
Shrimp means any species of marine
shrimp (Order Crustacea) found in the
Atlantic Area or the Gulf Area, including, but not limited to:
(1) Brown shrimp (Penaeus aztecus);
(2) White shrimp (P. setiferus);
(3) Pink shrimp (P. duorarum);
(4) Rock shrimp (Sicyonia brevirostris);
(5) Royal red shrimp (Hymenopenaeus
robustus); and
(6) Seabob shrimp (Xiphopenaeus
kroyeri).
Shrimp trawler means any vessel that
is equipped with one or more trawl nets
and that is capable of, or used for, fishing for shrimp, or whose on-board or
landed catch of shrimp is more than 1
percent, by weight, of all fish comprising its on-board or landed catch.
Skimmer trawl means a trawl that extends from the outrigger of a vessel
with a cable and a lead weight holding
the trawl mouth open.
Soft TED means a panel of polypropylene or polyethylene netting designed to be installed in a trawl net
forward of the codend for the purpose
of excluding sea turtles from the net.
State means any State of the United
States, the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam,
and the Trust Territory of the Pacific
Islands.
Stretched mesh size means the distance between the centers of the two
opposite knots in the same mesh when
pulled taut.
Summer flounder means the species
Paralichthys dentatus.
Summer flounder fishery-sea turtle protection area means:
(1) All offshore waters, bounded on
the north by a line along 37°05′ N. latitude (Cape Charles, VA) and bounded
on the south by a line along 33°35′ N.
latitude (North Carolina-South Caro-

§ 217.12

lina border), except as provided in
paragraph (2) of this definition.
(2) [Reserved]
Summer flounder trawler means any
vessel that is equipped with one or
more bottom trawl nets, and that is capable of, or used for, fishing for flounder, or whose on-board or landed catch
of flounder is more than 100 pounds
(45.4 kg).
Take means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture,
or collect, or attempt to harass, harm,
pursue, hunt, shoot, wound, kill, trap,
capture, or collect.
Taper, in reference to the webbing
used in trawls, means the angle of a
cut used to shape the webbing, expressed as the ratio between the cuts
that reduce the width of the webbing
by cutting into the panel of webbing
through one row of twine (bar cuts) and
the cuts that extend the length of the
panel of webbing by cutting straight
aft through two adjoining rows of
twine (point cuts). For example, sequentially cutting through the lengths
of twine on opposite sides of a mesh,
leaving an uncut edge of twines all
lying in the same line, produces a relatively strong taper called ‘‘all-bars’’;
making a sequence of 4-bar cuts followed by 1-point cut produces a more
gradual taper called ‘‘4 bars to 1 point’’
or ‘‘4b1p’’; similarly, making a sequence of 2-bar cuts followed by 1-point
cut produces a still more gradual taper
called ‘‘2b1p’’; and making a sequence
of cuts straight aft does not reduce the
width of the panel and is called a
‘‘straight’’ or ‘‘all-points’’ cut.
Taut means a condition in which
there is no slack in the net webbing.
TED (turtle excluder device) means a
device designed to be installed in a
trawl net forward of the codend for the
purpose of excluding sea turtles from
the net.
Test net, or try net, means a net pulled
for brief periods of time just before, or
during, deployment of the primary
net(s) in order to test for shrimp concentrations or determine fishing conditions (e.g., presence or absence of bottom debris, jellyfish, bycatch, seagrasses, etc.).
Tongue means any piece of webbing
along the top, center, leading edge of a
trawl, whether lying behind or ahead of

§ 217.21

50 CFR Ch. II (10–1–98 Edition)
742b); sec. 11(f), Endangered Species Act of
1973, Pub. L. 93–205, 87 Stat. 884 (16 U.S.C.
1540).

the headrope, to which a towing bridle
can be attached for purposes of pulling
the trawl net and/or adjusting the
shape of the trawl.
Transportation means to ship, convey,
carry or transport by any means whatever, and deliver or receive for such
shipment, conveyance, carriage, or
transportation.
Triple-wing trawl means a trawl with
a tongue on the top, center, leading
edge of the trawl and an additional
tongue along the bottom, center, leading edge of the trawl.
Two-seam trawl means a design of
shrimp trawl in which the main body of
the trawl is formed from a top panel
and a bottom panel of webbing that are
directly attached to each other down
the sides of the trawl.
Underway, with respect to a vessel,
means that the vessel is not at anchor,
or made fast to the shore, or aground.
United States means the several
States of the United States of America,
the District of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and
the Trust Territory of the Pacific Islands.
Vessel includes every description of
watercraft, including nondisplacement
craft and seaplanes, used or capable of
being used as a means of transportation on water.
Vessel restricted in her ability to maneuver has the meaning specified for
this term at 33 U.S.C. 2003(g).
Whoever means the same as person.
Wildlife means the same as fish or
wildlife.
Wing net (butterfly trawl) means a
trawl with a rigid frame, rather than
trawl door, holding the trawl mouth
open.

SOURCE: 45 FR 57133, Aug. 27, 1980, unless
otherwise noted.

§ 217.21 Assistant Administrator.
Mail forwarded to the Assistant Administrator for Fisheries should be addressed:
Assistant Administrator for Fisheries, F
National Marine Fisheries Service
Washington, DC 20235.

§ 217.22 Office of Marine Mammals and
Endangered Species.
Mail in regard to permits should be
addressed to:
Office of Marine Mammals and Endangered
Species, F/MM
National Marine Fisheries Service
Washington, DC 20235.

§ 217.23 Enforcement Division.
Mail in regard to enforcement and
certificates of exemption should be addressed to:
Enforcement Division, F/CM5
National Marine Fisheries Service
Washington, DC 20235.

PART 220—GENERAL PERMIT
PROCEDURES
Subpart A—Introduction
Sec.
220.1 General.
220.2 Purpose of regulations.
220.3 Scope of regulations.
220.4 Emergency variation from
ments.

require-

Subpart B—Application for Permits
220.11
220.12
220.13

(Sec. 3(d), Fish and Wildlife Act of 1956, as
amended, 88 Stat. 92 (16 U.S.C. 742b); sec.
11(f), Endangered Species Act of 1973, Pub. L.
93–205, 87 Stat. 884 (16 U.S.C. 1540))

Procedure for obtaining a permit.
[Reserved]
Abandoned application.

Subpart C—Permit Administration

[45 FR 57132, Aug. 27, 1980]

220.21 Issuance of permits.
220.22 Duration of permit.
220.23 [Reserved]
220.24 Renewal of permit.
220.25 Permits not transferable; agents.
220.26 Right of succession by certain persons.
220.27 Change of mailing address.
220.28 Change in name.
220.29–220.30 [Reserved]
220.31 Discontinuance of activity.

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 217.12, see the List of CFR
Sections Affected in the Finding Aids section of this volume.

Subpart C—Addresses
AUTHORITY: Sec. 3(d), Fish and Wildlife Act
of 1956, as amended, 88 Stat. 92 (16 U.S.C.

National Marine Fisheries Service/NOAA, Commerce
Subpart D—Conditions

§ 220.3

Scope of regulations.

The provisions in this part are in addition to, and are not in lieu of, other
permit regulations of parts 217 through
222 of this chapter and apply to all permits issued thereunder, including ‘‘Endangered Fish or Wildlife’’ (part 222).

220.42 Permits are specific.
220.43 Alteration of permits.
220.44 Display of permit.
220.45 Filing of reports.
220.46 Maintenance of records.
220.47 Inspection requirement.

Subpart E—Permits Involving Endangered
or Threatened Sea Turtles
220.50
220.51
220.52
220.53

§ 220.13

§ 220.4 Emergency variation from requirements.

Purpose.
Permit applications.
Issuance of permits.
Other requirements.

The Director may approve variations
from the requirements of this part
when he finds that an emergency exists
and that the proposed variations will
not hinder effective administration of
parts 217 through 222 of this chapter,
and will not be unlawful.

AUTHORITY: Endangered Species Act of
1973, sec. 11(f), 87 Stat. 884, Pub. L. 93–205; act
of August 31, 1951, Ch. 376. Title 5, sec. 501, 65
Stat. 290 (31 U.S.C. 483a).
SOURCE: 39 FR 41373, Nov. 27, 1974, unless
otherwise noted.

Subpart B—Application for Permits

Subpart A—Introduction

§ 220.11 Procedure for obtaining a permit.

§ 220.1 General.
Each person intending to engage in
an activity for which a permit is required by parts 217 through 222 of this
chapter or the Endangered Species Act
of 1973 shall, before commencing such
activity, obtain a valid permit authorizing such activity. Each person who
desires to obtain the permit privileges
authorized by parts 217 through 222 of
this chapter must make application for
such permit in accordance with the requirements of this part 220 of this
chapter and the other regulations in
parts 217 through 222 of this chapter
which set forth the additional requirements for the specific permits desired.
If the activity for which permission is
sought is covered by the requirements
of more than one part of parts 217
through 222 of this chapter, the requirements of each part must be met.
If the information required for each
specific permitted activity is included,
one application may be accepted for all
permits required, and a single permit
may be issued.

The following general procedures
apply to applications for permits:
(a) Forms. Applications must be submitted by letter containing all necessary information, attachments, certification, and signature. In no case
will oral or telephone applications be
accepted.
(b) Forwarding instructions. Applications must be submitted to the Director, National Marine Fisheries Service.
The address is listed in § 217.21.
(c) Time requirement. Applications
must be received by the appropriate official of the National Marine Fisheries
Service at least 90 calendar days prior
to the date on which the applicant desires to have the permit made effective. The National Marine Fisheries
Service will, in all cases, attempt to
process applications deemed sufficient
in the shortest possible time. The National Marine Fisheries Service does
not, however, guarantee 90 days
issuance after publication in the FEDERAL REGISTER of receipt of a permit
application and some permits cannot
be issued within that time period.

§ 220.2 Purpose of regulations.
The regulations contained in this
part will provide uniform rules and
procedures for application, issuance,
renewal, conditions, and general administration of permits issuable pursuant to parts 217 through 222 of this
chapter.

§ 220.12

[Reserved]

§ 220.13

Abandoned application.

Upon receipt of an insufficiently or
improperly executed application, the

§ 220.21

50 CFR Ch. II (10–1–98 Edition)

applicant shall be notified of the deficiency in the application. If the applicant fails to supply the deficient information or otherwise fails to correct the
deficiency within 60 days following the
date of notification, the application
shall be considered abandoned.

ministrative decision of the Department.
[39 FR 41373, Nov. 27, 1974, as amended at 49
FR 1042, Jan. 6, 1984]

§ 220.22

Duration of permit.

Permits shall entitle the person to
whom issued to engage in the activity
specified in the permit, within the limitations of the applicable statute and
regulations contained in parts 217
through 222 of this chapter for the period stated on the permit, unless sooner modified, suspended, or revoked pursuant to subpart D of 15 CFR part 904.

Subpart C—Permit Administration
§ 220.21 Issuance of permits.
(a) No permit may be issued prior to
the receipt of a written application
therefor, unless a written variation
from the requirements, as authorized
by § 220.4 is inserted into the official
file of the National Marine Fisheries
Service. Any representation of an employee or agent of the United States
Government shall not be construed as a
permit
unless
it
meets
the
requirements of a permit as defined in
50 CFR 217.12.
(b) The Director shall issue the appropriate permit unless—
(1) Denial of a permit has been made
pursuant to subpart D of 15 CFR part
904;
(2) The applicant has failed to disclose material information required, or
has made false statements as to any
material fact, in connection with his
application;
(3) The applicant has failed to demonstrate a valid justification for the
permit or a showing of responsibility;
(4) The authorization requested potentially threatens a wildlife population, or
(5) The Director finds through further inquiry or investigation, or otherwise, that the applicant is not qualified.
(c) Each permit shall bear a serial
number. Such number may be reassigned to the permittee to whom issued
so long as he maintains continuity of
renewal.
(d) The applicant shall be notified in
writing of the denial of any permit request, and the reasons therefor. If authorized in the notice of denial, the applicant may submit further information, or reasons why the permit should
not be denied. Such further submissions shall not be considered a new application. The final action by the Director shall be considered the final ad-

[49 FR 1042, Jan. 6, 1984]

§ 220.23

[Reserved]

§ 220.24

Renewal of permit.

Where the permit is renewable and a
permittee intends to continue the activity described in the permit during
any portion of the year ensuing its expiration, he shall, unless otherwise notified in writing by the Director, file a
request for permit renewal, together
with a certified statement that the information in his original application is
still currently correct, or a statement
of all changes in the original application, accompanied by any required fee
at least 30 days prior to the expiration
of his permit. Any person holding a
valid renewable permit, who has complied with the foregoing provision of
this section, may continue such activities as were authorized by his expired
permit until his renewal application is
acted upon.
§ 220.25 Permits
agents.

not

transferable;

(a) Permits issued under parts 220
through 222 are not transferable or assignable. Some permits authorize certain activities in connection with a
business or commercial enterprise and
in the event of any lease, sale, or transfer of such business entity, the successor must obtain a permit prior to continuing the permitted activity. However, certain limited rights of succession are provided in § 220.26.
(b) Except as otherwise stated on the
face of a permit, any person who is
under the direct control of the permittee, or who is employed by or under

National Marine Fisheries Service/NOAA, Commerce
contract to the permittee for the purposes authorized by the permit, may
carry out the activity authorized by
the permit.

§§ 220.29–220.30
§ 220.31

§ 220.45
[Reserved]

Discontinuance of activity.

When any permittee discontinues his
activity, he shall, within 30 days thereof, mail his permit and a request for
cancellation to the issuing officer, and
said permit shall be deemed void upon
receipt. No refund of any part of an
amount paid as a permit fee shall be
made where the operations of the permittee are, for any reason, discontinued during the tenure of an issued
permit.

§ 220.26 Right of succession by certain
persons.
(a) Certain persons, other than the
permittee, are granted the right to
carry on a permitted activity for the
remainder of the term of a current permit provided they comply with the provisions of paragraph (b) of this section.
Such persons are the following:
(1) The surviving spouse, child, executor, administrator, or other legal
representative of a deceased permittee;
and
(2) A receiver or trustee in bankruptcy or a court designated assignee
for the benefit of creditors.
(b) In order to secure the right provided in this section, the person or persons desiring to continue the activity
shall furnish the permit to the issuing
officer for endorsement within 90 days
from the date the successor begins to
carry on the activity.

Subpart D—Conditions
§ 220.42

Permits are specific.

The authorizations on the face of a
permit which set forth specific times,
dates, places, methods of taking, numbers and kinds of fish or wildlife, location of activity, authorize certain circumscribed transactions, or otherwise
permit a specifically limited matter,
are to be strictly construed and shall
not be interpreted to permit similar or
related matters outside the scope of
strict construction.

§ 220.27 Change of mailing address.

§ 220.43

During the term of his permit, a permittee may change his mailing address
without procuring a new permit. However, in every case notification of the
new mailing address must be forwarded
to the issuing official within 30 days
after such change. This section does
not authorize the change of location of
the permitted activity for which an
amendment must be obtained.

Alteration of permits.

Permits shall not be altered, erased,
or mutilated, and any permit which
has been altered, erased, or mutilated
shall immediately become invalid.
§ 220.44

Display of permit.

Any permit issued under parts 220
through 222 shall be displayed for inspection upon request to the Director
or his agent, or to any other person relying upon its existence.

§ 220.28 Change in name.
A permittee continuing to conduct a
permitted activity is not required to
obtain a new permit by reason of a
mere change in trade name under
which a business is conducted or a
change of name by reason of marriage
or legal decree: Provided, That such
permittee must furnish his permit to
the issuing official for endorsement
within 30 days from the date the permittee begins conducting the permitted activity under the new name.

§ 220.45

Filing of reports.

§ 220.46

50 CFR Ch. II (10–1–98 Edition)
cies) or 50 CFR 17.32(a) (Threatened
Species) as appropriate. Applications
involving activities under the jurisdiction of the National Marine Fisheries
Service (NMFS) as defined in 50 CFR
222.23(a) and 50 CFR 227.4 shall be forwarded by the WPO to NMFS.

§ 220.46 Maintenance of records.
From the date of issuance of the permit, the permittee shall maintain complete and accurate records of any taking, possession, transportation, sale,
purchase, barter, exportation, or importation of fish or wildlife pursuant to
such permit. Such records shall be kept
current and shall include names and
addresses of persons with whom any
fish or wildlife has been purchased,
sold, bartered, or otherwise transferred, and the date of such transaction, and such other information as
may be required or appropriate. Such
records, unless otherwise specified,
shall be entered in books, legibly written in the English language. Such
records shall be retained for 5 years
from the date of issuance of the permit.

§ 220.52

Issuance of permits.

(a) Applications under the jurisdiction of the WPO shall be reviewed and
acted upon in accordance with 50 CFR
17.22 or 50 CFR 17.32 as appropriate.
(b) NMFS shall make a complete review of applications forwarded to it by
the WPO in accordance with § 220.51 and
determine the appropriate action to be
taken in accordance with 50 CFR
220.21(b) and 222.23(c). In instances
where the application involves activities solely within NMFS jurisdiction,
NMFS shall issue permits or letters of
denial and provide WPO with copies of
its actions.
(c) Where a permit application involves activities under both NMFS and
FWS jurisdiction, each agency will
process the application for activities
under its jurisdiction. WPO will issue
either a permit or a letter of denial.
(d) Where a permit application for activities under NMFS jurisdiction also
requires a permit under the Convention
on International Trade in Endangered
Species of Wild Fauna and Flora (TIAS
8249, July 1, 1975) (CITES) (50 CFR part
23), NMFS will process the application
for activities under its jurisdiction.
WPO will issue the final document by
means of a combination ESA/CITES
permit or a letter of denial.

§ 220.47 Inspection requirement.
Any person holding a permit under
parts 217 through 222 of this chapter
shall allow the Director’s agent to
enter his premises at any reasonable
hour to inspect any fish or wildlife held
or to inspect, audit, or copy any permits, books, or records required to be
kept by regulations of parts 217
through 222 of this chapter or by the
Endangered Species Act of 1973.

Subpart E—Permits Involving Endangered or Threatened Sea
Turtles
SOURCE: 43 FR 32809, July 28, 1978, unless
otherwise noted.

§ 220.50 Purpose.
This subpart establishes procedures
for issuance of permits for scientific
purposes or to enhance the propagation
or survival of ‘‘endangered’’ or ‘‘threatened’’ sea turtles and zoological exhibition or educational purposes for
‘‘threatened’’ sea turtles.

§ 220.53

Other requirements.

Permits issued by NMFS under this
subpart shall be administered and comply with the provisions of 50 CFR parts
217 through 227 as appropriate.

PART 221—DESIGNATED PORTS

§ 220.51 Permit applications.
Applications for permits to take, import, export or engage in any other
prohibited activity involving any species of sea turtle listed in 50 CFR 17.11
shall be submitted to the Wildlife Permit Office (WPO) of the U.S. Fish and
Wildlife Service in accordance with either, 50 CFR 17.22(a) (Endangered Spe-

AUTHORITY: Endangered Species Act of
1973, sec. 11(f), 87 Stat. 884, Pub. L. 93–205.

§ 221.1 Importation and exportation at
designated ports.
Any fish or wildlife (other than shellfish and fishery products which (a) are

National Marine Fisheries Service/NOAA, Commerce

222.12–2 Change of address.
222.12–3 Certain continuance of business.
222.12–4 Change in trade name.
222.12–5 State or other law.
222.12–6 Right of entry and examination.
222.12–7 Records.
222.12–8 Record of receipt and disposition.
222.12–9 Importation.
222.13 Exportation.
222.13–1 Procedure by exporter.
222.13–2 Action by Customs.
222.13–3 Transportation to effect exportation.
222.13–4 Burden of proof; presumption.

not endangered or not threatened species, and (b) are imported for purposes
of human or animal consumption or
taken in waters under the jurisdiction
of the United States or on the high
seas for recreational purposes) which is
subject to the jurisdiction of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce and is intended for importation
into or exportation from the United
States, shall not be imported or exported except at a port or ports designated by the Secretary of the Interior. The Secretary of the Interior may
permit the importation or exportation
at nondesignated ports in the interest
of the health or safety of the fish or
wildlife or for other reasons if he deems
it appropriate and consistent with the
purpose of facilitating enforcement of
the Endangered Species Act and reducing the costs thereof. Importers and exporters are advised to see 50 CFR part
14 for importation and exportation requirements and information.

Subpart C—Endangered Fish or Wildlife
Permits
222.21 General permit requirement.
222.22 Permits for the incidental taking of
endangered species.
222.23 Permits for scientific purposes or to
enhance the propagation or survival of
the affected endangered species.
222.24 Procedures for issuance of permits.
222.25 Applications for modification of permit by permittee.
222.26 Amendment of permits by NMFS.
222.27 Procedures for suspension, revocation, or modification of permits.
222.28 Possession of permits.

[39 FR 41375, Nov. 27, 1974]

Subpart D—Special Prohibitions
222.31 Approaching humpback whales in Hawaii.
222.32 Approaching North Atlantic right
whales.
222.33 Special prohibitions relating to endangered Steller sea lion protection.

PART 222—ENDANGERED FISH OR
WILDLIFE
Subpart A—Introduction
Sec.
222.1
222.2
222.3

§ 222.1

Purpose of regulations.
Scope of regulations.
Definitions.

Subpart E—Incidental Capture of
Endangered Sea Turtles
222.41 Policy regarding incidental capture
of sea turtles.
222.42 Special prohibitions relating to
leatherback sea turtles.

Subpart B—Certificates of Exemption for
Pre-Act Endangered Species Parts
222.11–1 General certificate of exemption requirements.
222.11–2 Application renewal procedure.
222.11–3 Application renewal requirements.
222.11–4 Procedures for issuance of renewals
of certificates of exemption.
222.11–5 Application for modification of certificate of exemption by holder.
222.11–6 Amendment of certificates of exemption.
222.11–7 Procedures for suspension, revocation, or modification of certificates of
exemption.
222.11–8 Purchaser provisions.
222.11–9 Duration of certificate of exemption.
222.12 Locations covered by certificate of
exemption.
222.12–1 Certificate of exemption not transferable; exception.

AUTHORITY: 16 U.S.C. 1531–1543 and 16 U.S.C.
1361 et seq.

Subpart A—Introduction
§ 222.1 Purpose of regulations.
The regulations contained in this
part identify the species or subspecies
of fish or wildlife determined to be endangered under either the Endangered
Species Conservation Act of 1969 or the
Endangered Species Act of 1973, and
presently deemed endangered species
under the Endangered Species Act of
1973, which are under the jurisdiction
of the Secretary of Commerce, and establish procedures and criteria for

§ 222.2

50 CFR Ch. II (10–1–98 Edition)
that an applicant must submit when
applying for an incidental take permit.
Conservation plans also are known as
‘‘habitat
conservation
plans’’
or
‘‘HCPs.’’
Operating conservation program means
those conservation management activities which are expressly agreed upon
and described in a conservation plan or
its Implementing Agreement, if any,
and which are to be undertaken for the
affected species when implementing an
approved conservation plan, including
measures to respond to changed circumstances.
Properly implemented conservation plan
means any conservation plan, Implementing Agreement and permit whose
commitments and provisions have been
or are being fully implemented by the
permittee.
Unforeseen
circumstances
means
changes in circumstances affecting a
species or geographic area covered by a
conservation plan that could not reasonably have been anticipated by plan
developers and NMFS at the time of
the conservation plan’s negotiation
and development, and that result in a
substantial and adverse change in the
status of the covered species.

issuance of permits for the taking, importation, exportation, or otherwise
prohibited acts, involving endangered
fish or wildlife. The regulations of this
part implement, in part, the Endangered Species Act of 1973, 87 Stat. 884,
Pub. L. 93–205, as amended.
[45 FR 57133, Aug. 27, 1980]

§ 222.2 Scope of regulations.
(a) The regulations of this part apply
only to endangered fish or wildlife.
(b) The provisions in this part are in
addition to, and are not in lieu of,
other regulations of parts 217 through
222 of this chapter which may require a
permit or prescribe additional restrictions or conditions for the taking, importation, exportation, and interstate
transportation of fish or wildlife. (See
also parts 220 and 221 of this chapter.)
[45 FR 57133, Aug. 27, 1980]

§ 222.3 Definitions.
These definitions apply only to
§ 222.22:
Adequately covered means, with respect to species listed pursuant to section 4 of the ESA, that a proposed conservation plan has satisfied the permit
issuance
criteria
under
section
10(a)(2)(B) of the ESA for the species
covered by the plan and, with respect
to unlisted species, that a proposed
conservation plan has satisfied the permit issuance criteria under section
10(a)(2)(B) of the ESA that would otherwise apply if the unlisted species covered by the plan were actually listed.
For the Services to cover a species
under a conservation plan, it must be
listed on the section 10(a)(1)(B) permit.
Changed circumstances means changes
in circumstances affecting a species or
geographic area covered by a conservation plan that can reasonably be anticipated by plan developers and NMFS
and that can be planned for (e.g., the
listing of new species, or a fire or other
natural catastrophic event in areas
prone to such events).
Conserved habitat areas means areas
explicitly designated for habitat restoration, acquisition, protection, or
other conservation purposes under a
conservation plan.
Conservation plan means the plan required by section 10(a)(2)(A) of the ESA

[63 FR 8872, Feb. 23, 1998]

Subpart B—Certificates of Exemption for Pre-Act Endangered
Species Parts
SOURCE: 45 FR 57134, Aug. 27, 1980, unless
otherwise noted.

§ 222.11–1 General certificate
emption requirements.

ex-

(a) The Assistant Administrator, pursuant to the provisions of the Endangered Species Act, and pursuant to the
provisions of this paragraph, may exempt any pre-Act endangered species
part from one or more of the following:
(1) The prohibition, as set forth in
section 9(a)(1)(A) of the Act, to export
any such species part from the United
States;
(2) The prohibitions, as set forth in
section 9(a)(1)(E) of the Act, to deliver,
receive, carry, transport, or ship in
interstate or foreign commerce, by any
means whatsoever and in the course of

National Marine Fisheries Service/NOAA, Commerce

§ 222.11–3

tion requested is not applicable, put
‘‘N.A.’’) and such other information
that the Assistant Administrator may
require.

a commercial activity any such species
part;
(3) The prohibitions, as set forth in
section 9(a)(1)(F) of the Act, to sell or
offer for sale in interstate or foreign
commerce any such species part.
(b) No person shall engage in any of
the above activities involving any preAct endangered species part without a
valid certificate of exemption, or evidence of a right thereunder, issued pursuant to this subpart B.
(c) After January 31, 1984, no person
may export; deliver, receive, carry,
transport or ship in interstate or foreign commerce in the course of a commercial activity; or sell or offer for
sale in interstate or foreign commerce
any pre-Act finished scrimshaw product unless that person has been issued
a valid certificate of exemption and the
product or the raw material for such
product was held by such certificate
holder on October 13, 1982.

[45 FR 57134, Aug. 27, 1980]

§ 222.11–3 Application
renewal
requirements.
(a) The following information will be
used as the basis for determining
whether an application for renewal of a
certificate of exemption is complete:
(1) Title: Application for Renewal of
Certificate of Exemption Under Pub. L.
97–304.
(2) The date of application.
(3) The identity of the applicant including complete name, original certificate of exemption number, current
address, and telephone number, including zip and area codes. If the applicant
is a corporation, partnership, or association set forth the details.
(4) The period of time for which a renewal of the certificate of exemption is
requested; however, no renewal of certificate of exemption, or right claimed
thereunder, shall be effective after the
close of the three-year period beginning on the date of the expiration of
the previous renewal of the certificate
of exemption.
(5)(i) A complete and detailed updated inventory of all pre-Act endangered species parts for which the applicant seeks exemption. Each item on
the inventory must be identified by the
following information: a unique serial
number; the weight of the item in
grams, to the nearest whole gram; and
a description in detail sufficient to permit ready identification of the item.
Small lots, not exceeding five pounds
(2,270 grams), of scraps or raw material,
which may include or consist of one or
more whole raw whale teeth, may be
identified by a single serial number and
total weight. All finished scrimshaw
items subsequently made from a given
lot of scrap may be identified by the
lot serial number plus additional digits
to signify the piece number of the individual finished item. Identification
numbers will be in the following format: 00–000000–0000. The first two digits
will be the last two digits of the appropriate certificate of exemption number;
the next six digits, the serial number of
the individual piece or lot of scrap or

[45 FR 57134, Aug. 27, 1980, as amended at 50
FR 12808, Apr. 1, 1985]

§ 222.11–2 Application renewal procedure.
(a) Any person to whom a certificate
of exemption has been issued by the
National Marine Fisheries Service and
who desires to obtain a renewal of such
certificate of exemption may make application therefor to the Assistant Administrator. The sufficiency of the application shall be determined by the
Assistant Administrator in accordance
with the requirements of this part and,
in that connection, he may waive any
requirement for information, or require
any elaboration for further information deemed necessary.
(b) One copy of a completed application for renewal shall be submitted to
the Assistant Administrator for Fisheries, National Marine Fisheries Service, Washington, DC 20235.
(c) The outside of the envelope should
be marked, ATTENTION: Enforcement
Division, ‘‘Certificate of Exemption
Request.’’ Assistance may be obtained
by writing or calling the Enforcement
Division, NMFS, in Washington, DC
(AC 202, 634–7265). At least 15 days
should be allowed for processing. An
application for a certificate of exemption shall provide the information contained in § 222.11–3 (when the informa-

§ 222.11–4

50 CFR Ch. II (10–1–98 Edition)
by the Assistant Administrator which
the Assistant Administrator deems sufficient, he shall, as soon as practicable,
issue a certificate of renewal to the applicant.

raw material; and the last four digits,
where applicable, the piece number of
an item made from a lot of scrap or
raw material. The serial numbers for
each certificate holder’s inventory
must begin with 000001, and piece numbers, where applicable, must begin with
0001 for each separate lot.
(ii) Identification numbers may be affixed to inventory items by any means,
including, but not limited to, etching
the number into the item, attaching a
label or tag bearing the number to the
item, or sealing the item in a plastic
bag, wrapper or other container bearing the number. Provided that, the
number must remain affixed to the
item until it is sold to an ultimate
user, as defined in § 222.11–8(b) of this
part.
(iii) No renewals will be issued for
scrimshaw products in excess of any
quantities declared in the original application for a certificate of exemption.
(6) A certification in the following
language:

§ 222.11–5 Application for modification
of certificate of exemption by holder.
Where circumstances have changed
so that an applicant or certificate of
exemption holder desires to have any
material term or condition of his application or certificate modified, he must
submit in writing full justification and
supporting information in conformance
with the provisions of this part.
§ 222.11–6 Amendment of certificates
of exemption.
All certificates are issued subject to
the condition that the Assistant Administrator reserves the right to
amend the provisions of a certificate of
exemption for just cause at any time.
Such amendments take effect on the
date of notification, unless otherwise
specified.

I hereby certify that the foregoing information is complete, true, and correct to the
best of my knowledge and belief. I understand that this information is submitted for
the purpose of obtaining a renewal of my certificate of exemption under the Endangered
Species Act of 1973, as amended by Pub. L.
94–359, 90 Stat. 911, Pub. L. 96–159, 93 Stat.
1225, Pub. L. 97–304, 95 Stat. 715, and the Department of Commerce regulations issued
thereunder, and that any false statement
may subject me to the criminal penalties of
18 U.S.C. 1001, or to the penalties under the
Endangered Species Act of 1973.

§ 222.11–7 Procedures for suspension,
revocation, or modification of certificates of exemption.
Any violation of the applicable provisions of parts 217 through 222 of this
chapter, or of the Act, or of a condition
of the certificate of exemption may
subject the certificate holder to the
following:
(a) The penalties provided in the Act;
and
(b) Suspension, revocation, or modification of the certificate of exemption,
as provided in subpart D of 15 CFR part
904.

(7) Signature of the applicant.
(b) Upon receipt of an incomplete or
improperly executed application for renewal, the applicant shall be notified
by Certified Mail of the deficiency in
the application for renewal. If the application for renewal is not corrected
and received by the Assistant Administrator within 30 days following the
date of receipt of notification, the application for renewal shall be considered as having been abandoned.

[49 FR 1042, Jan. 6, 1984]

§ 222.11–8

Purchaser provisions.

(a) Any person granted a certificate
of exemption, including a renewal,
under this subpart, upon a sale of any
exempted pre-Act endangered species
part, must provide the purchaser in
writing with a description (including
full identification number) of the part
sold, and must inform the purchaser in
writing of the purchaser’s obligation

[45 FR 57134, Aug. 27, 1980, as amended at 50
FR 12808, Apr. 1, 1985]

§ 222.11–4 Procedures for issuance of
renewals of certificates of exemption.
Whenever application for a renewal
of a certificate of exemption is received

National Marine Fisheries Service/NOAA, Commerce

§ 222.12–2

under paragraph (b) of this section, including the address given in the certificate to which the purchaser’s report is
to be sent.
(b) Any purchaser of pre-Act endangered species parts included in a valid
certificate of exemption, unless an ultimate user, must within 30 days after
the receipt of such parts submit a written report to the address given in the
certificate specifying the quantity of
such parts or products received, the
name and address of the seller, a copy
of the invoice or other document showing the serial numbers, weight, and descriptions of the parts or products received, the date on which such parts or
products were received, and the intended use of such parts by the purchaser. An ultimate user, for purposes
of this paragraph, means any person
who acquired such endangered species
part or product for his own consumption or personal use (including as
gifts), and not for resale.
(c) After January 31, 1984, no purchaser may export; deliver, receive,
carry or transport in interstate or foreign commerce in the course of a commercial activity; or sell or offer for
sale in interstate or foreign commerce
any endangered species part or product
even though such part or product was
acquired under a certificate of exemption either prior to or subsequent to
that date.

§ 222.12 Locations covered by certificate of exemption.

[50 FR 12808, Apr. 1, 1985]

§ 222.12–2

§ 222.11–9 Duration of certificate of exemption.

A certificate of exemption holder
may during the term of the certificate
of exemption move his business or activity to a new location at which he intends regularly to carry on such business or activity, without obtaining a
new certificate of exemption. However,
in every case, notification of the new
location of the business or activity
must be given in writing within 10 days
of such move to the Assistant Administrator. In each instance, the certificate
of exemption must be endorsed by the
Assistant Administrator. After endorsement of the certificate of exemption the Assistant Administrator will
provide an amended certificate of exemption to the person to whom issued.

The certificate of exemption covers
the business or activity specified in the
certificate of exemption at the address
described therein. No certificate of exemption is required to cover a separate
warehouse facility used by the certificate of exemption holder solely for
storage of pre-Act endangered species
parts, if the records required by this
subpart are maintained at the address
specified in the certificate of exemption which is served by the warehouse
or storage facility.
[50 FR 12809, Apr. 1, 1985]

§ 222.12–1 Certificate of exemption not
transferable; exception.
Certificates of exemption issued
under this subpart are not transferable:
Provided, That in the event of the lease,
sale or other transfer of the operations
or activity authorized by the certificate of exemption the successor is not
required by this subpart to obtain a
new certificate of exemption prior to
commencing such operations or activity. In such case, the successor will be
treated as a purchaser and must comply with the record and reporting requirements set forth in § 222.11–8.
[45 FR 57134, Aug. 27, 1980, as amended at 50
FR 12809, Apr. 1, 1985]

A certificate of exemption is valid
only if renewed in accordance with the
procedures set forth in § 222.11–3 of this
part. All certificates so renewed will be
valid for a period beginning April 1,
1985, and ending no later than March
31, 1988. A renewed certificate of exemption entitles the holder to engage
in the business or activity specified in
the certificate of exemption, within
the limitations of the Act and the regulations contained in this subpart, for
the period stated in the certificate of
exemption, unless sooner terminated.
[50 FR 12808, Apr. 1, 1985, as amended at 50
FR 25713, June 21, 1985]

Change of address.

§ 222.12–3

50 CFR Ch. II (10–1–98 Edition)

§ 222.12–3 Certain continuance of business.
A certificate of exemption holder
who requests that his certificate of exemption be amended by the Assistant
Administrator for corrections or endorsement in compliance with the provisions contained in this subpart, may
continue his operations while awaiting
action by the Assistant Administrator.

form, and shall be retained at the address shown on the certificate of exemption, or at the principal address of
a purchaser in the manner prescribed
by this subpart.

§ 222.12–4 Change in trade name.
A certificate holder continuing to
conduct business at the location shown
on his certificate of exemption is not
required to obtain a new certificate of
exemption by reason of a change in
trade name under which he conducts
his business: Provided, That such certificate of exemption holder requests in
writing that his certificate of exemption be endorsed to reflect such change
of name to the Assistant Administrator within 30 days from the date the
certificate of exemption holder begins
his business under the new name.

(a) Holders of certificates of exemption must maintain records of all preAct endangered species parts they receive, sell, transfer, distribute or dispose of otherwise. Purchasers of preAct endangered species parts, unless
ultimate users, must similarly maintain records of all such parts or products they receive.
(b) Such records as referred to in
paragraph (a) of this section may consist of invoices or other commercial
records which must be filed in an orderly manner separate from other commercial records maintained, and be
readily available for inspection. Such
records must (1) show the name and address of the purchaser, seller, or other
transferor; (2) show the type, quantity,
and identity of the part or product; (3)
show the date of such sale or transfer;
and (4) be retained, in accordance with
the requirements of this subpart, for a
period of not less than three years following the date of sale or transfer.
Each pre-Act endangered species part
will be identified by its number on the
updated inventory required to renew a
certificate of exemption.
(c)(1) Each certificate of exemption
holder must submit a quarterly report
(to the address given in the certificate)
containing all record information required by paragraph (b) on all transfers
of pre-Act endangered species parts
made in the previous calendar quarter,
or such other record information the
Assistant Administrator may specify
from time to time.
(2) Quarterly reports are due on January 15, April 15, July 15, and October
15. The first report is due on October
15, 1985.
(d) The Assistant Administrator may
authorize the record information to be
submitted in a manner other than that
prescribed in paragraph (b) of this section when it is shown by the record

[45 FR 57134, Aug. 27, 1980, as amended at 50
FR 12809, Apr. 1, 1985]

§ 222.12–8 Record of receipt and disposition.

§ 222.12–5 State or other law.
A certificate of exemption issued
under this subpart confers no right or
privilege to conduct a business or an
activity contrary to State or other
law. Similarly, compliance with the
provisions of any State or other law affords no immunity under any Federal
laws or regulations of any other Federal Agency.
§ 222.12–6 Right of entry and examination.
Any person authorized to enforce the
Act may enter during business hours
the premises, including places of storage, of any holder of a certificate of exemption or of any purchaser for the
purpose of inspecting or examining any
records or documents required to be
kept by such certificate of exemption
holder or successor under this subpart,
and any endangered species parts at
such premises of location.
[45 FR 57134, Aug. 27, 1980, as amended at 50
FR 12809, Apr. 1, 1985]

§ 222.12–7 Records.
The records pertaining to pre-Act endangered species parts prescribed by
this subpart shall be in permanent

National Marine Fisheries Service/NOAA, Commerce

§ 222.21

holder that an alternate method of reporting is reasonably necessary and
will not hinder the effective administration or enforcement of this subpart.

the port of exportation, and must precede or accompany the shipment in
order to permit appropriate inspection
prior to lading.

[45 FR 57134, Aug. 27, 1980, as amended at 50
FR 12809, Apr. 1, 1985]

§ 222.13–2 Action by Customs.
Upon receipt of a certificate of exemption authorizing the exportation of
pre-Act endangered species parts or
scrimshaw products, the District Director of Customs may order such inspection as deemed necessary prior to lading of the merchandise. If satisfied that
the shipment is proper and agrees with
the information contained in the certificate, and any endorsement thereto,
the District Director of Customs will
clear the merchandise for export. The
certificate, and any endorsements, will
be forwarded to the Chief, Enforcement
Division, F/CM5 National Marine Fisheries Service, Washington, DC 20235.

§ 222.12–9 Importation.
No pre-Act endangered species part
shall be imported into the United
States, and a certificate of exemption
issued in accordance with the provisions of this subpart confers no right or
privilege to import into the United
States any such part.
§ 222.13 Exportation.
(a) Any person desiring to export
from the United States any pre-Act endangered species part or scrimshaw
product, must possess a valid certificate of exemption issued in accordance
with the provisions of this subpart.
(b) In addition to other information,
which may be required by this subpart,
the exporter will notify the Assistant
Administrator by letter which shall
show the name and address of the foreign consignee, the intended port of exportation, and a complete description
of the parts to be exported. Such information should reach the Assistant Administrator not less than 10 days prior
to shipment.
(c) No pre-Act endangered species
part or scrimshaw product which is to
be exported from the United States
under a certificate of exemption issued
therefor, shall be exported except at a
port or ports designated by the Secretary of the Interior. The Secretary of
the Interior may permit the exportation at non-designated ports for any
reason if he deems it appropriate and
consistent with the purposes of the Endangered Species Act, as amended, or it
will facilitate the administration or
enforcement of the Act and reducing
the costs thereof. Exporters are advised
to see 50 CFR part 14 for a listing of the
designated ports.

§ 222.13–3 Transportation to effect exportation.
Notwithstanding any provision of
this subpart, it shall not be required
that authorization be obtained from
the Assistant Administrator for the
transportation in interstate or foreign
commerce of pre-Act endangered species parts to effect an exportation of
such parts authorized under the provisions of this subpart.
§ 222.13–4 Burden of proof; presumption.
Any person claiming the benefit of
any exemption or certificate of exemption under the Act or regulations, shall
have the burden of proving that the exemption or certificate is applicable,
has been granted, and was valid and in
force at the time of the alleged violation.

Subpart C—Endangered Fish or
Wildlife Permits
SOURCE: 39 FR 41375, Nov. 27, 1974, unless
otherwise noted.

§ 222.13–1 Procedure by exporter.
Shipment may not be made until the
requirements of § 222.13 are met by the
exporter. A copy of the certificate of
exemption, and any endorsements
thereto, must be sent by the exporter
to the District Director of Customs at

§ 222.21 General permit requirement.
No person shall take, import, export,
or engage in any other prohibited activity involving, any species or subspecies of fish or wildlife which the
Secretary has determined to be endangered under the Endangered Species

§ 222.22

50 CFR Ch. II (10–1–98 Edition)

Act of 1973, as evidenced by its inclusion on the list of endangered fish or
wildlife (see 50 CFR chapter I, part 17)
or which the Secretary of the Interior
determined to be endangered under the
Endangered Species Conservation Act
of 1969 and which are now under the jurisdictional responsibilities of the Secretary of Commerce, without a valid
permit issued pursuant to this part.

(ii) Application for a General Incidental Take Permit under the Endangered Species Act of 1973.
(2) The name, address and telephone
number of the applicant. If the applicant is a partnership, corporate entity
or is representing a group or organization, the applicable details.
(3) The species or stocks, by common
and scientific name, and a description
of the status, distribution, seasonal
distribution, habitat needs, feeding
habits and other biological requirements of the affected species or stocks.
(4) A detailed description of the proposed activity, including the anticipated dates, duration and specific location. If the request is for a general incidental take permit, an estimate of the
total level of activity expected to be
conducted.
(5) A conservation plan, based on the
best scientific and commercial data
available, which specifies
(i) The anticipated impact (i.e.,
amount, extent and type of anticipated
taking) of the proposed activity on the
species or stocks;
(ii) The anticipated impact of the
proposed activity on the habitat of the
species or stocks and the likelihood of
restoration of the affected habitat;
(iii) The steps (specialized equipment, methods of conducting activities, or other means) that will be taken
to monitor, minimize and mitigate
such impacts, and the funding available to implement such measures; and
(iv) The alternative actions to such
taking that were considered and the
reasons why those alternatives are not
being used.
(v) A list of all sources of data used
in preparation of the plan, including
reference reports, environmental assessments and impact statements, and
personal communications with recognized experts on the species or activity
who may have access to data not published in current literature.
(c) Issuance criteria. (1) In determining whether to issue a permit, the Assistant Administrator will consider the
following:
(i) The status of the affected species
or stocks;
(ii) The potential severity of direct,
indirect and cumulative impacts on the

(Pub. L. 94–359)
[41 FR 36028, Aug. 26, 1976]

§ 222.22 Permits for the incidental taking of endangered species.
(a) Scope. (1) The Assistant Administrator may issue permits to take endangered marine species incidentally
to an otherwise lawful activity under
section 10(a)(1)(B) of the Endangered
Species Act of 1973. The regulations in
this section apply only to those endangered species under the jurisdiction of
the Secretary of Commerce identified
in § 222.23(a).
(2) If the applicant represents an individual or a single entity, such as a
corporation, the Assistant Administrator will issue an individual incidental take permit. If the applicant represents a group or organization whose
members conduct the same or a similar
activity in the same geographical area
with similar impacts on endangered
marine species, the Assistant Administrator will issue a general incidental
take permit. To be covered by a general incidental take permit, each individual conducting the activity must
have a certificate of inclusion issued
under paragraph (f) of this section.
(b) Permit application procedures. Applications should be sent to the Assistant Administrator for Fisheries, National Marine Fisheries Service, 1335
East West Highway, Silver Spring, MD
20910. The sufficiency of the application
will be determined by the Assistant
Administrator in accordance with the
requirements of this section. At least
120 days should be allowed for processing. Each application must be signed
and dated and include the following:
(1) The type of application, either:
(i) Application for an Individual Incidental Take Permit under the Endangered Species Act of 1973, or

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
the enhancement of propagation or survival.
17.63 Economic hardship permits.

section 4(a) of the Act and also carry
over the species and subspecies of wildlife designated as endangered under the
Endangered Species Conservation Act
of 1969 (83 Stat. 275, 16 U.S.C. 668cc–1 to
6) which are deemed endangered species
under section 4(c)(3) of the Act.

Subpart G—Threatened Plants
17.71 Prohibitions.
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.
17.81 Listing.
17.82 Prohibitions.
17.83 Interagency cooperation.
17.84 Special rules—vertebrates.
17.85 Special
rules—invertebrates.
served]
17.86 Special rules—plants. [Reserved]

§ 17.2

Scope of regulations.

(a) The regulations of this part apply
only to endangered and threatened
wildlife and plants.
(b) By agreement between the Service and the National Marine Fisheries
Service, the jurisdiction of the Department of Commerce has been specifically defined to include certain species,
while jurisdiction is shared in regard to
certain other species. Such species are
footnoted in subpart B of this part, and
reference is given to special rules of
the National Marine Fisheries Service
for those species.
(c) The provisions in this part are in
addition to, and are not in lieu of,
other regulations of this subchapter B
which may require a permit or prescribe additional restrictions or conditions for the importation, exportation,
and interstate transportation of wildlife.
(d) The examples used in this part are
provided solely for the convenience of
the public, and to explain the intent
and meaning of the regulation to which
they refer. They have no legal significance.
(e) Certain of the wildlife and plants
listed in §§ 17.11 and 17.12 as endangered
or threatened are included in Appendix
I, II or III to the Convention on International Trade in Endangered Species
of Wild Fauna and Flora. The importation, exportation and reexportation of
such species are subject to additional
regulations provided in part 23 of this
subchapter.

[Re-

Subpart I—Interagency Cooperation
17.94 Critical habitats.
17.95 Critical habitat—fish and wildlife.
17.96 Critical habitat—plants.

Subpart J—Manatee Protection Areas
17.100 Purpose.
17.101 Scope.
17.102 Definitions.
17.103 Establishment of protection areas.
17.104 Prohibitions.
17.105 Permits and exceptions.
17.106 Emergency establishment of protection areas.
17.107 Facilitating enforcement.
17.108 List of designated manatee protection areas.
AUTHORITY: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625,
100 Stat. 3500; unless otherwise noted.
SOURCE: 40 FR 44415, Sept. 26, 1975, unless
otherwise noted.

Subpart A—Introduction and
General Provisions
§ 17.1 Purpose of regulations.
(a) The regulations in this part implement the Endangered Species Act of
1973, 87 Stat. 884, 16 U.S.C. 1531–1543, except for those provisions in the Act
concerning the Convention on International Trade in Endangered Species
of Wild Fauna and Flora, for which regulations are provided in part 23 of this
subchapter.
(b) The regulations identify those
species of wildlife and plants determined by the Director to be endangered
or threatened with extinction under

[40 FR 44415, Sept. 26, 1975, as amended at 42
FR 10465, Feb. 22, 1977]

§ 17.3

Definitions.

In addition to the definitions contained in part 10 of this subchapter,
and unless the context otherwise requires, in this part 17:

U.S. Fish and Wildlife Serv., Interior

§ 17.3

Act means the Endangered Species
Act of 1973 (16 U.S.C. 1531–1543; 87 Stat.
884);
Adequately covered means, with respect to species listed pursuant to section 4 of the ESA, that a proposed conservation plan has satisfied the permit
issuance
criteria
under
section
10(a)(2)(B) of the ESA for the species
covered by the plan, and, with respect
to unlisted species, that a proposed
conservation plan has satisfied the permit issuance criteria under section
10(a)(2)(B) of the ESA that would otherwise apply if the unlisted species covered by the plan were actually listed.
For the Services to cover a species
under a conservation plan, it must be
listed on the section 10(a)(1)(B) permit.
Alaskan Native means a person defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1603(b) (85 Stat.
588)) as a citizen of the United States
who is of one-fourth degree or more
Alaska Indian (including Tsimshian Indians enrolled or not enrolled in the
Metlaktla Indian Community), Eskimo, or Aleut blood, or combination
thereof. The term includes any Native,
as so defined, either or both of whose
adoptive parents are not Natives. It
also includes, in the absence of proof of
a minimum blood quantum, any citizen
of the United States who is regarded as
an Alaska Native by the Native village
or town of which he claims to be a
member and whose father or mother is
(or, if deceased, was) regarded as Native by any Native village or Native
town. Any citizen enrolled by the Secretary pursuant to section 5 of the
Alaska Native Claims Settlement Act
shall be conclusively presumed to be an
Alaskan Native for purposes of this
part;
Authentic native articles of handicrafts
and clothing means items made by an
Indian, Aleut, or Eskimo which (a)
were commonly produced on or before
December 28, 1973, and (b) are composed
wholly or in some significant respect of
natural materials, and (c) are significantly altered from their natural form
and which are produced, decorated, or
fashioned in the exercise of traditional
native handicrafts without the use of
pantographs, multiple carvers, or similar mass copying devices. Improved
methods of production utilizing mod-

ern implements such as sewing machines or modern techniques at a tannery registered pursuant to § 18.23(c) of
this subchapter (in the case of marine
mammals) may be used so long as no
large scale mass production industry
results. Traditional native handicrafts
include, but are not limited to, weaving, carving, stitching, sewing, lacing,
beading, drawing, and painting. The
formation of traditional native groups
such as cooperatives, is permitted so
long as no large scale mass production
results;
Bred in captivity or captive-bred refers
to wildlife, including eggs, born or otherwise produced in captivity from parents that mated or otherwise transferred gametes in captivity, if reproduction is sexual, or from parents that
were in captivity when development of
the progeny began, if development is
asexual.
Captivity means that living wildlife is
held in a controlled environment that
is intensively manipulated by man for
the purpose of producing wildlife of the
selected species, and that has boundaries designed to prevent animal, eggs
or gametes of the selected species from
entering or leaving the controlled environment. General characteristics of
captivity may include but are not limited to artificial housing, waste removal, health care, protection from
predators, and artificially supplied
food.
Changed circumstances means changes
in circumstances affecting a species or
geographic area covered by a conservation plan that can reasonably be anticipated by plan developers and the
Service and that can be planned for
(e.g., the listing of new species, or a fire
or other natural catastrophic event in
areas prone to such events).
Conservation plan means the plan required by section 10(a)(2)(A) of the ESA
that an applicant must submit when
applying for an incidental take permit.
Conservation plans also are known as
‘‘habitat
conservation
plans’’
or
‘‘HCPs.’’
Conserved habitat areas means areas
explicitly designated for habitat restoration, acquisition, protection, or
other conservation purposes under a
conservation plan.

§ 17.3

50 CFR Ch. I (10–1–98 Edition)

Convention means the Convention on
International Trade in Endangered
Species of Wild Fauna and Flora, TIAS
8249.
Enhance the propagation or survival,
when used in reference to wildlife in
captivity, includes but is not limited to
the following activities when it can be
shown that such activities would not
be detrimental to the survival of wild
or captive populations of the affected
species:
(a) Provision of health care, management of populations by culling, contraception, euthanasia, grouping or handling of wildlife to control survivorship
and reproduction, and similar normal
practices of animal husbandry needed
to maintain captive populations that
are self-sustaining and that possess as
much genetic vitality as possible;
(b) Accumulation and holding of living wildlife that is not immediately
needed or suitable for propagative or
scientific purposes, and the transfer of
such wildlife between persons in order
to relieve crowding or other problems
hindering the propagation or survival
of the captive population at the location from which the wildlife would be
removed; and
(c) Exhibition of living wildlife in a
manner designed to educate the public
about the ecological role and conservation needs of the affected species.
Endangered means a species of wildlife listed in § 17.11 or a species of plant
listed in § 17.12 and designated as endangered.
Harass in the definition of ‘‘take’’ in
the Act means 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. This definition, when applied to
captive wildlife, does not include generally accepted:
(1) Animal husbandry practices that
meet or exceed the minimum standards
for facilities and care under the Animal
Welfare Act,
(2) Breeding procedures, or
(3) Provisions of veterinary care for
confining, tranquilizing, or anesthetizing, when such practices, procedures,

or provisions are not likely to to result
in injury to the wildlife.
Harm in the definition of ‘‘take’’ in
the Act means an act which actually
kills or injures wildlife. Such act 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.
Incidental taking means any taking
otherwise prohibited, if such taking is
incidental to, and not the purpose of,
the carrying out of an otherwise lawful
activity.
Industry or trade in the definition of
‘‘commercial activity’’ in the Act
means the actual or intended transfer
of wildlife or plants from one person to
another person in the pursuit of gain or
profit;
Native village or town means any community, association, tribe, clan or
group;
Operating conservation program means
those conservation management activities which are expressly agreed upon
and described in a conservation plan or
its Implementing Agreement, if any,
and which are to be undertaken for the
affected species when implementing an
approved conservation plan, including
measures to respond to changed circumstances.
Population means a group of fish or
wildlife in the same taxon below the
subspecific level, in common spatial arrangement that interbreed when mature;
Properly implemented conservation plan
means any conservation plan, Implementing Agreement and permit whose
commitments and provisions have been
or are being fully implemented by the
permittee.
Specimen means any animal or plant,
or any part, product, egg, seed or root
of any animal or plant;
Subsistence means the use of endangered or threatened wildlife for food,
clothing, shelter, heating, transportation and other uses necessary to
maintain the life of the taker of the
wildlife, or those who depend upon the
taker to provide them with such subsistence, and includes selling any edible portions of such wildlife in native
villages and towns in Alaska for native

U.S. Fish and Wildlife Serv., Interior

§ 17.4
(1) That the purposes of such holding
were not contrary to the purposes of
the Act; and
(2) That the wildlife was not held in
the course of a commercial activity.

consumption within native villages and
towns;
Threatened means a species of wildlife
listed in § 17.11 or plant listed in § 17.12
and designated as threatened.
Unforeseen
circumstances
means
changes in circumstances affecting a
species or geographic area covered by a
conservation plan that could not reasonably have been anticipated by plan
developers and the Service at the time
of the conservation plan’s negotiation
and development, and that result in a
substantial and adverse change in the
status of the covered species.
Wasteful manner means any taking or
method of taking which is likely to result in the killing or injury of endangered or threatened wildlife beyond
those needed for subsistence purposes,
or which results in the waste of a substantial portion of the wildlife, and includes without limitation the employment of a method of taking which is
not likely to assure the capture or killing of the wildlife, or which is not immediately followed by a reasonable effort to retrieve the wildlife.

Example 1. On January 25, 1974, a tourist
buys a stuffed hawksbill turtle (an endangered species listed since June, 1970), in a
foreign country. On December 28, 1973, the
stuffed turtle had been on display for sale.
The tourist imports the stuffed turtle into
the United States on January 26, 1974. This is
a violation of the Act since the stuffed turtle
was held for commercial purposes on December 28, 1973.
Example 2. On December 27, 1973 (or earlier), a tourist buys a leopard skin coat (the
leopard has been listed as endangered since
March 1972) for his wife in a foreign country.
On January 5, he imports it into the United
States. He has not committed a violation
since on December 28, 1973, he was the owner
of the coat, for personal purposes, and the
chain of commerce had ended with the sale
on the 27th. Even if he did not finish paying
for the coat for another year, as long as he
had possession of it, and he was not going to
resell it, but was using it for personal purposes, the Act does not apply to that coat.
Example 3. On or before December 28, 1973,
a hunter kills a leopard legally in Africa. He
has the leopard mounted and imports it into
the United States in March 1974. The importation is not subject to the Act. The hunter
has not engaged in a commercial activity,
even though he bought the services of a
guide, outfitters, and a taxidermist to help
him take, preserve, and import the leopard.
This applies even if the trophy was in the
possession of the taxidermist on December
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
United States in June 1974. This importation
is a violation of the Act since the leopard
was not in captivity or a controlled environment on December 28, 1973.

[40 FR 44415, Sept. 26, 1975, as amended at 42
FR 28056, June 1, 1977; 44 FR 54006, Sept. 17,
1979; 46 FR 54750, Nov. 4, 1981; 47 FR 31387,
July 20, 1982; 50 FR 39687, Sept. 30, 1985; 63 FR
8870, Feb. 23, 1998; 63 FR 48639, Sept. 11, 1998]
EFFECTIVE DATE NOTE: At 63 FR 48639,
Sept. 11, 1998, § 17.3 was amended by revising
the definition of ‘‘Harass’’, effective Oct. 13,
1998. For the convenience of the user, the superseded text is set forth as follows:
§ 17.3

Definitions.

Harass in the definition of ‘‘take’’ in the
Act means 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.

(b) Service officers or Customs officers may refuse to clear endangered or
threatened wildlife for importation
into or exportation from the United
States, pursuant to § 14.53 of this subchapter, until the importer or exporter
can demonstrate that the exemption
referred to in this section applies. Exempt status may be established by any
sufficient evidence, including an affidavit containing the following:
(1) The affiant’s name and address;
(2) Identification of the affiant;

§ 17.4 Pre-Act wildlife.
(a) The prohibitions defined in subparts C and D of this part 17 shall not
apply to any activity involving endangered or threatened wildlife which was
held in captivity or in a controlled environment on December 28, 1973: Provided,

§ 17.5

50 CFR Ch. I (10–1–98 Edition)

(3) Identification of the endangered
or threatened wildlife which is the subject of the affidavit;
(4) A statement by the affiant that to
the best of his knowledge and belief,
the endangered or threatened wildlife
which is the subject of the affidavit
was in captivity or in a controlled environment on December 28, 1973, and
was not being held for purposes contrary to the Act or in the course of a
commercial activity;
(5) A statement by the affiant in the
following language:
The foregoing is principally based on the
attached exhibits which, to the best of my
knowledge and belief, are complete, true and
correct. I understand that this affidavit is
being submitted for the purpose of inducing
the Federal Government to recognize an exempt status regarding (insert description of
wildlife), under the Endangered Species Act
of 1973 (16 U.S.C. 1531–1543), and regulations
promulgated thereunder, and that any false
statements may subject me to the criminal
penalties of 18 U.S.C. 1001.

(6) As an attachment, records or
other available evidence to show:
(i) That the wildlife in question was
being held in captivity or in a controlled environment on December 28,
1973;
(ii) The purpose for which the wildlife was being held; and
(iii) The nature of such holding (to
establish that no commercial activity
was involved).
(c) This section applies only to wildlife born on or prior to December 28,
1973. It does not apply to the progeny of
any such wildlife born after December
28, 1973.
§ 17.5 Alaska natives.
(a) The provisions of subpart C of this
part relating to the importation or the
taking of endangered wildlife, and any
provision of subpart D of this part relating to the importation or the taking
of threatened wildlife, shall not apply
to:
(1) Any Indian, Aleut, or Eskimo who
is an Alaskan native and who resides in
Alaska; or
(2) Any non-native permanent resident of an Alaskan native village who
is primarily dependent upon the taking
of wildlife for consumption or for the
creation and sale of authentic native
articles of handicrafts and clothing:

If the taking is primarily for subsistence purposes, and is not accomplished
in a wasteful manner.
(b) Edible portions of endangered or
threatened wildlife taken or imported
pursuant to paragraph (a) of this section may be sold in native villages or
towns in Alaska for native consumption within native villages and towns
in Alaska.
(c) Non-edible by-products of endangered or threatened wildlife taken or
imported pursuant to paragraph (a) of
this section may be sold in interstate
commerce when made into authentic
native articles of handicrafts and
clothing.
§ 17.6 State cooperative
[Reserved]

agreements.

§ 17.7 Raptor exemption.
(a) The prohibitions found in §§ 17.21
and 17.31 do not apply to any raptor [a
live migratory bird of the Order
Falconiformes or the Order Strigiformes,
other than a bald eagle (Haliaeetus
leucocephalus) or a golden eagle (Aquila
chrysaetos)] legally held in captivity or
in a controlled environment on November 10, 1978, or to any of its progeny,
which is:
(1) Possessed and banded in compliance with the terms of a valid permit
issued under part 21 of this chapter;
and
(2) Identified in the earliest applicable annual report required to be filed
by a permittee under part 21 of this
chapter as in a permittee’s possession
on November 10, 1978, or as the progeny
of such a raptor.
(b) This section does not apply to any
raptor intentionally returned to the
wild.
[48 FR 31607, July 8, 1983]

§ 17.8 Permit applications and information collection requirements.
(a) Address permit applications for
activities affecting species listed under
the Endangered Species Act, as amended, as follows:
(1) Address activities affecting endangered and threatened species that
are native to the United States to the
Regional Director for the Region in
which the activity is to take place.
You can find addresses for the Regional

100

U.S. Fish and Wildlife Serv., Interior

§ 17.11

Directors in 50 CFR 2.2. Send applications for interstate commerce in native
endangered and threatened species to
the Regional Director with lead responsibility for the species. To determine
the appropriate region, call the nearest
Regional Office:
Region 1 (Portland, OR): 503–231–6241
Region 2 (Albuquerque, NM): 505–248–6920
Region 3 (Twin Cities, MN): 612–713–5343
Region 4 (Atlanta, GA): 404–679–7313
Region 5 (Hadley, MA): 413–253–8628
Region 6 (Denver, CO): 303–236–8155, ext 263
Region 7 (Anchorage, AK): 907–786–3620
Headquarters (Washington, DC): 703–358–2106

(2) Submit permit applications for
activities affecting native endangered
and threatened species in international
movement or commerce, and all activities affecting nonnative endangered
and threatened species to the Director,
U.S. Fish and Wildlife Service, (Attention Office of Management Authority),
4401 N. Fairfax Drive, Room 700, Arlington, VA 22203.
(b) The Office of Management and
Budget approved the information collection requirements contained in this
part 17 under 44 U.S.C. 3507 and assigned OMB Control Numbers 1018–0093
and 1018–0094. The Service may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. We
are collecting this information to provide information necessary to evaluate
permit applications. We will use this
information to review permit applications and make decisions, according to
criteria established in various Federal
wildlife conservation statutes and regulations, on the issuance, suspension,
revocation, or denial of permits. You
must respond to obtain or retain a permit. We estimate the public reporting
burden for these reporting requirements to vary from 2 to 21⁄2 hours per
response, including time for reviewing
instructions, gathering and maintaining data, and completing and reviewing
the forms. Direct comments regarding
the burden estimate or any other aspect of these reporting requirements to
the Service Information Collection
Control Officer, MS–222 ARLSQ, U.S.
Fish and Wildlife Service, Washington,
DC 20240, or the Office of Management
and Budget, Paperwork Reduction

Project (1018–0093/0094), Washington, DC
20603.
[63 FR 52635, Oct. 1, 1998]

Subpart B—Lists
§ 17.11 Endangered and threatened
wildlife.
(a) The list in this section contains
the names of all species of wildlife
which have been determined by the
Services to be Endangered or Threatened. It also contains the names of species of wildlife treated as Endangered
or Threatened because they are sufficiently similar in appearance to Endangered or Threatened species (see
§ 17.50 et seq.).
(b) The columns entitled ‘‘Common
Name,’’ ‘‘Scientific Name,’’ and ‘‘Vertebrate Population Where Endangered
or Threatened’’ define the species of
wildlife within the meaning of the Act.
Thus, differently classified geographic
populations of the same vertebrate subspecies or species shall be identified by
their differing geographic boundaries,
even though the other two columns are
identical. The term ‘‘Entire’’ means
that all populations throughout the
present range of a vertebrate species
are listed. Although common names
are included, they cannot be relied
upon for identification of any specimen, since they may vary greatly in
local usage. The Services shall use the
most recently accepted scientific
name. In cases in which confusion
might arise, a synonym(s) will be provided in parentheses. The Services
shall rely to the extent practicable on
the International Code of Zoological Nomenclature.
(c) In the ‘‘Status’’ column the following symbols are used: ‘‘E’’ for Endangered, ‘‘T’’ for Threatened, and ‘‘E
[or T] (S/A)’’ for similarity of appearance species.
(d) The other data in the list are nonregulatory in nature and are provided
for the information of the reader. In
the annual revision and compilation of
this title, the following information
may be amended without public notice:
the spelling of species’ names, historical range, footnotes, references to certain other applicable portions of this
title, synonyms, and more current
names. In any of these revised entries,

101

U.S. Fish and Wildlife Serv., Interior
606—62
609—62
611—62
613—62
615—62
619—62
620—62
623—62
624—62
625—62
627—62
635—63
640—63
641—63
643—63
644—63

FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR

§ 17.21

4182; January 29, 1997.
5551; February 6, 1997.
14351; March 26, 1997.
27978; May 22, 1997.
31748; June 11, 1997.
33037; June 18, 1997.
33373; June 19, 1997.
40973; July 31, 1997.
42702; August 8, 1997.
54807; October 22, 1997.
61925; November 20, 1997.
19849; April 22, 1998.
43115; August 12, 1998.
44594; August 20, 1998.
49034; September 14, 1998.
49021; September 14, 1998.

EDITORIAL NOTE 1: For FEDERAL REGISTER
citations affecting the table in § 17.12(h), see
the listing above.
EDITORIAL NOTE 2: For FEDERAL REGISTER
citations affecting § 17.12, see the List of CFR
Sections Affected in the Finding Aids section of this volume.

Subpart C—Endangered Wildlife
§ 17.21 Prohibitions.
(a) Except as provided in subpart A of
this part, or under permits issued pursuant to § 17.22 or § 17.23, it is unlawful
for any person subject to the jurisdiction of the United States to commit, to
attempt to commit, to solicit another
to commit or to cause to be committed, any of the acts described in paragraphs (b) through (f) of this section in
regard to any endangered wildlife.
(b) Import or export. It is unlawful to
import or to export any endangered
wildlife. Any shipment in transit
through the United States is an importation and an exportation, whether or
not it has entered the country for customs purposes.
(c) Take. (1) It is unlawful to take endangered wildlife within the United
States, within the territorial sea of the
United States, or upon the high seas.
The high seas shall be all waters seaward of the territorial sea of the
United States, except waters officially
recognized by the United States as the
territorial sea of another country,
under international law.
(2) Notwithstanding paragraph (c)(1)
of this section, any person may take

endangered wildlife in defense of his
own life or the lives of others.
(3) Notwithstanding paragraph (c)(1)
of this section, any employee or agent
of the Service, any other Federal land
management agency, the National Marine Fisheries Service, or a State conservation agency, who is designated by
his agency for such purposes, may,
when acting in the course of his official
duties, take endangered wildlife without a permit if such action is necessary
to:
(i) Aid a sick, injured or orphaned
specimen; or
(ii) Dispose of a dead specimen; or
(iii) Salvage a dead specimen which
may be useful for scientific study; or
(iv) Remove specimens which constitute a demonstrable but nonimmediate threat to human safety, provided
that the taking is done in a humane
manner; the taking may involve killing or injuring only if it has not been
reasonably possible to eliminate such
threat by live-capturing and releasing
the specimen unharmed, in a remote
area.
(4) Any taking pursuant to paragraphs (c) (2) and (3) of this section
must be reported in writing to the U.S.
Fish and Wildlife Service, Division of
Law Enforcement, P.O. Box 19183,
Washington, DC 20036, within 5 days.
The specimen may only be retained,
disposed of, or salvaged in accordance
with directions from Service.
(5) Notwithstanding paragraph (c)(1)
of this section, any qualified employee
or agent of a State Conservation Agency which is a party to a Cooperative
Agreement with the Service in accordance with section 6(c) of the Act, who
is designated by his agency for such
purposes, may, when acting in the
course of his official duties take those
endangered species which are covered
by an approved cooperative agreement
for conservation programs in accordance with the Cooperative Agreement,
provided that such taking is not reasonably anticipated to result in:
(i) The death or permanent disabling
of the specimen;
(ii) The removal of the specimen
from the State where the taking occurred;
(iii) The introduction of the specimen
so taken, or of any progeny derived

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50 CFR Ch. I (10–1–98 Edition)

from such a specimen, into an area beyond the historical range of the species; or
(iv) The holding of the specimen in
captivity for a period of more than 45
consecutive days.
(d) Possession and other acts with unlawfully taken wildlife. (1) It is unlawful
to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any endangered wildlife which
was taken in violation of paragraph (c)
of this section.
Example A person captures a whooping
crane in Texas and gives it to a second person, who puts it in a closed van and drives
thirty miles, to another location in Texas.
The second person then gives the whooping
crane to a third person, who is apprehended
with the bird in his possession. All three
have violated the law—the first by illegally
taking the whooping crane; the second by
transporting an illegally taken whooping
crane; and the third by possessing an illegally taken whooping crane.

(2) Notwithstanding paragraph (d)(1)
of this section, Federal and State law
enforcement officers may possess, deliver, carry, transport or ship any endangered wildlife taken in violation of
the Act as necessary in performing
their official duties.
(e) Interstate or foreign commerce. It is
unlawful to deliver, receive, carry
transport, or ship in interstate or foreign commerce, by any means whatsoever, and in the course of a commercial
activity, any endangered wildlife.
(f) Sale or offer for sale. (1) It is unlawful to sell or to offer for sale in interstate or foreign commerce any endangered wildlife.
(2) An advertisement for the sale of
endangered wildlife which carries a
warning to the effect that no sale may
be consummated until a permit has
been obtained from the U.S. Fish and
Wildlife Service shall not be considered
an offer for sale within the meaning of
this section.
(g) Captive-bred wildlife. (1) Notwithstanding paragraphs (b), (c), (e) and (f)
of this section, any person may take;
export or re-import; deliver, receive,
carry, transport or ship in interstate or
foreign commerce, in the course of a
commercial activity; or sell or offer for
sale in interstate or foreign commerce
any endangered wildlife that is bred in
captivity in the United States provided

either that the wildlife is of a taxon
listed in paragraph (g)(6) of this section, or that the following conditions
are met:
(i) The wildlife is of a species having
a natural geographic distribution not
including any part of the United
States, or the wildlife is of a species
that the Director has determined to be
eligible in accordance with paragraph
(g)(5) of this section;
(ii) The purpose of such activity is to
enhance the propagation or survival of
the affected species;
(iii) Such activity does not involve
interstate or foreign commerce, in the
course of a commercial activity, with
respect to non-living wildlife;
(iv) Each specimen of wildlife to be
re-imported is uniquely identified by a
band, tattoo or other means that was
reported in writing to an official of the
Service at a port of export prior to export from the United States; and
(v) Any person subject to the jurisdiction of the United States who engages in any of the activities authorized by this paragraph does so in accordance with paragraphs (g) (2), (3)
and (4) of this section, and with all
other applicable regulations in this
Subchapter B.
(2) Any person subject to the jurisdiction of the United States seeking to engage in any of the activities authorized
by this paragraph must first register
with the Service (Office of Management Authority, U.S. Fish and Wildlife
Service, 4401 N. Fairfax Drive, Arlington, Virginia 22203). Requests for registration must be submitted on an official application form (Form 3–200-41)
provided by the Service, and must include the following information:
(i) The types of wildlife sought to be
covered by the registration, identified
by common and scientific name to the
taxonomic level of family, genus or
species;
(ii) A description of the applicant’s
experience in maintaining and propagating the types of wildlife sought to
be covered by the registration, and
when appropriate, in conducting research directly related to maintaining
and propagating such wildlife;
(iii) Photograph(s) or other evidence
clearly depicting the facilities where
such wildlife will be maintained; and

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U.S. Fish and Wildlife Serv., Interior

§ 17.21

(iv) a copy of the applicant’s license
or registration, if any, under the animal welfare regulations of the U.S. Department of Agriculture (9 CFR part 2).
(3) Upon receiving a complete application, the Director will decide whether or not the registration will be approved. In making this decision, the
Director will consider, in addition to
the general criteria in § 13.21(b) of this
subchapter, whether the expertise, facilities or other resources available to
the applicant appear adequate to enhance the propagation or survival of
the affected wildlife. Public education
activities may not be the sole basis to
justify issuance of a registration or to
otherwise establish eligibility for the
exception granted in paragraph (g)(1) of
this section. Each person so registered
must
maintain
accurate
written
records of activities conducted under
the registration, and allow reasonable
access to Service agents for inspection
purposes as set forth in §§ 13.46 and
13.47. Each person registered must submit to the Director an individual written annual report of activities, including all births, deaths and transfers of
any type.
(4) Any person subject to the jurisdiction of the United States seeking to export or conduct foreign commerce in
captive-bred endangered wildlife that
will not remain under the care of that
person must first obtain approval by
providing written evidence to satisfy
the Director that the proposed recipient of the wildlife has expertise, facilities or other resources adequate to enhance the propagation or survival of
such wildlife and that the proposed recipient will use such wildlife for purposes of enhancing the propagation or
survival of the affected species.
(5)(i) The Director will use the following criteria to determine if wildlife
of any species having a natural geographic distribution that includes any
part of the United States is eligible for
the provisions of this paragraph:
(A) Whether there is a low demand
for taking of the species from wild populations, either because of the success
of captive breeding or because of other
reasons, and
(B) Whether the wild populations of
the species are effectively protected
from unauthorized taking as a result of

the inaccessibility of their habitat to
humans or as a result of the effectiveness of law enforcement.
(ii) The Director will follow the procedures set forth in the Act and in the
regulations thereunder with respect to
petitions and notification of the public
and governors of affected States when
determining the eligibility of species
for purposes of this paragraph.
(iii) In accordance with the criteria
in paragraph (g)(5)(i) of this section,
the Director has determined the following species to be eligible for the provisions of this paragraph:
Laysan duck (Anas laysanensis).

(6) Any person subject to the jurisdiction of the United States seeking to engage in any of the activities authorized
by paragraph (g)(1) of this section may
do so without first registering with the
Service with respect to the bar-tailed
pheasant (Syrmaticus humiae), Elliot’s
pheasant (S. ellioti), Mikado pheasant
(S. mikado), brown eared pheasant
(Crossoptilon
mantchuricum),
white
eared pheasant (C. crossoptilon), cheer
pheasant (Catreus wallichii), Edward’s
pheasant (Lophura edwardsi), Swinhoe’s
pheasant (L. swinhoii), Chinese monal
(Lophophorus lhuysii), and Palawan peacock pheasant (Polyplectron emphanum);
parakeets of the species Neophema
pulchella and N. splendida; the Laysan
duck (Anas laysanensis); the whitewinged wood duck (Cairina scutulata);
and the inter-subspecific crossed or
‘‘generic’’ tiger (Panthera tigris) (i e.,
specimens not identified or identifiable
as members of the Bengal, Sumatran,
Siberian or Indochinese subspecies
(Panthera tigris tigris, P.t. sumatrae, P.t.
altaica and P.t. corbetti, respectively)
provided:
(i) The purpose of such activity is to
enhance the propagation or survival of
the affected exempted species;
(ii) Such activity does not involve
interstate or foreign commerce, in the
course of a commercial activity, with
respect to non-living wildlife;
(iii) Each specimen to be re-imported
is uniquely identified by a band, tattoo
or other means that was reported in
writing to an official of the Service at
a port of export prior to export of the
specimen from the United States;

217

§ 17.21

50 CFR Ch. I (10–1–98 Edition)

(iv) No specimens of the taxa in this
paragraph (g)(6) of this section that
were taken from the wild may be imported for breeding purposes absent a
definitive showing that the need for
new bloodlines can only be met by wild
specimens, that suitable foreign-bred,
captive individuals are unavailable,
and that wild populations can sustain
limited taking, and an import permit is
issued under § 17.22;
(v) Any permanent exports of such
specimens meet the requirements of
paragraph (g)(4) of this section; and
(vi) Each person claiming the benefit
of the exception in paragraph (g)(1) of
this section must maintain accurate
written records of activities, including
births, deaths and transfers of specimens, and make those records accessible to Service agents for inspection
at reasonable hours as set forth in
§§ 13.46 and 13.47.
[40 FR 44415, Sept. 26, 1975, as amended at 40
FR 53400, Nov. 18, 1975; 41 FR 19226, May 11,
1976; 44 FR 31580, May 31, 1979; 44 FR 54007,
Sept. 17, 1979; 58 FR 68325, Dec. 27, 1993; 63 FR
48640, Sept. 11, 1998]
EFFECTIVE DATE NOTE: At 63 FR 48640,
Sept. 11, 1998, § 17.21 was amended by revising
paragraph (g), effective Oct. 13, 1998. For the
convenience of the user the superseded text
is set forth as follows:
§ 17.21

Prohibitions.

(g) Captive-bred wildlife. (1) Notwithstanding paragraphs (b), (c), (e) and (f) of this section, any person may take; import or export;
deliver, receive, carry, transport or ship in
interstate or foreign commerce, in the
course of a commercial activity; or sell or
offer for sale in interstate or foreign commerce any endangered wildlife that is bred is
captivity in the United States, provided the
principal purpose of these activities is to facilitate captive breeding, and provided the
following conditions are met:
(i) The wildlife is a species having a natural geographic distribution not including any
part of the United States, or the wildlife is a
species that the Director has determined to
be eligible in accordance with paragraph
(g)(5) of this section;
(ii) The purpose of such activity is to enhance the propagation or survival of the affected species;
(iii) Such activity does not involve interstate or foreign commerce, in the course of a
commercial activity, with respect to non-living wildlife;

(iv) Each specimen of wildlife to be imported is uniquely identified by a band, tattoo or other means that was reported in
writing to an official of the Service at a port
of export prior to export from the United
States, and
(v) Any person subject to the jurisdiction
of the United States who engages in any of
the activities authorized by this paragraph
does so in accordance with paragraphs (g) (2),
(3) and (4) of this section.
(2) Any person subject to the jurisdiction
of the United States seeking to engage in
any of the activities authorized by this paragraph must first register with the Service
(Federal Wildlife Permit Office, U.S. Fish
and Wildlife Service, Washington, DC 20240).
Requests for registration must be submitted
on an official application form (Form 3–200)
provided by the Service, and must include
the following information:
(i) The types of wildlife sought to be covered by the registration, identified by common and scientific name to the taxonomic
level of family, genus or species;
(ii) A description of the applicant’s experience in maintaining and propagating the
types of wildlife sought to be covered by the
registration, or in conducting research directly related to maintaining and propagating such wildlife;
(iii) A description, if appropriate, of the
means by which the applicant intends to
educate the public about the ecological role
and conservation needs of the affected species;
(iv) Photograph(s) or other evidence clearly depicting the facilities where such wildlife
will be maintained; and
(v) A copy of the applicant’s license or registration, if any, under the animal welfare
regulations of the U.S. Department of Agriculture (9 CFR part 2).
(3) Upon receiving a complete application,
the Director will decide whether or not the
registration will be approved. In making his
decision, the Director will consider, in addition to the general criteria in § 13.2(b) of this
subchapter, whether the expertise, facilities
or other resources available to the applicant
appear adequate to enhance the propagation
or survival of the affected wildlife. Each person so registered must maintain accurate
written records of activities conducted under
the registration and must submit to the Director a written annual report of such activities.
(4) Any person subject to the jurisdiction
of the United States seeking to export or
conduct foreign commerce in captive-bred
endangered wildlife which will not remain
under the care of that person must first obtain approval by providing written evidence
to satisfy the Director that the proposed recipient of the wildlife has expertise, facilities or other resources adequate to enhance
the propagation or survival of such wildlife

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U.S. Fish and Wildlife Serv., Interior

§ 17.22

and that the proposed recipient will use such
wildlife for purposes of enhancing the propagation or survival of the affected species.
(5)(i) The Director shall use the following
criteria to determine if wildlife of any species having a natural geographic distribution
that includes any part of the United States
is eligible for the provisions of this paragraph:
(A) Whether there is a low demand for taking of the species from wild populations, either because of the success of captive breeding or because of other reasons, and
(B) Whether the wild populations of the
species are effectively protected from unauthorized taking as a result of the inaccessibility of their habitat to man or as a result
of the effectiveness of law enforcement.
(ii) The Director shall follow the procedures set forth in section 4(b) and section
4(f)(2)(A) of the Act and in the regulations
promulgated thereunder with respect to petitions and notification of the public and governors of affected States when determining
the eligibility of species for purposes of this
paragraph.
(iii) In accordance with the criteria in
paragraph (g)(5)(i) of this section, the Director has determined the following species to
be eligible for the provisions of this paragraph:
Laysan teal (Anas laysanensis).

§ 17.22 Permits for scientific purposes,
enhancement of propagation or survival, or for incidental taking.
Upon receipt of a complete application, the Director may issue a permit
authorizing any activity otherwise prohibited by § 17.21, in accordance with
the issuance criteria of this section, for
scientific purposes, for enhancing the
propagation or survival, or for the incidental taking of endangered wildlife.
Such permits may authorize a single
transaction, a series of transactions, or
a number of activities over a specific
period of time. (See § 17.32 for permits
for threatened species.) The Director
shall publish notice in the FEDERAL
REGISTER of each application for a permit that is made under this section.
Each notice shall invite the submission
from interested parties, within 30 days
after the date of the notice, of written
data, views, or arguments with respect
to the application. The 30-day period
may be waived by the Director in an
emergency situation where the life or
health of an endangered animal is
threatened and no reasonable alternative is available to the applicant.

Notice of any such waiver shall be published in the FEDERAL REGISTER within
10 days following issuance of the permit.
(a)(1) Application requirements for permits for scientific purposes or for the enhancement of propagation or survival. A
person wishing to get a permit for an
activity prohibited by § 17.21 submits
an application for activities under this
paragraph. The Service provides Form
3–200 for the application to which all of
the following must be attained:
(i) The common and scientific names
of the species sought to the covered by
the permit, as well as the number, age,
and sex of such species, and the activity sought to be authorized (such as
taking, exporting, selling in interstate
commerce);
(ii) A statement as to whether, at the
time of application, the wildlife sought
to be covered by the permit (A) is still
in the wild, (B) has already been removed from the wild, or (C) was born in
captivity;
(iii) A resume of the applicant’s attempts to obtain the wildlife sought to
be covered by the permit in a manner
which would not cause the death or removal from the wild of such wildlife;
(iv) If the wildlife sought to be covered by the permit has already been removed from the wild, the country and
place where such removal occurred; if
the wildlife sought to be covered by the
permit was born in captivity, the country and place where such wildlife was
born;
(v) A complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be used, displayed, or maintained;
(vi) If the applicant seeks to have
live wildlife covered by the permit, a
complete description, including photographs or diagrams, of the facilities to
house and/or care for the wildlife and a
resume of the experience of those person who will be caring for the wildlife;
(vii) A full statement of the reasons
why the applicant is justified in obtaining a permit including the details
of the activities sought to be authorized by the permit;
(viii) If the application is for the purpose of enhancement of propagation, a

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50 CFR Ch. I (10–1–98 Edition)

statement of the applicant’s willingness to participate in a cooperative
breeding program and to maintain or
contribute data to a studbook;
(2) Issuance criteria. Upon receiving
an application completed in accordance
with paragraph (a)(1) of this section,
the Director will decide whether or not
a permit should be issued. In making
this decision, the Director shall consider, in addition to the general criteria in § 13.21(b) of this subchapter, the
following factors:
(i) Whether the purpose for which the
permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife
sought to be covered by the permit;
(ii) The probable direct and indirect
effect which issuing the permit would
have on the wild populations of the
wildlife sought to be covered by the
permit;
(iii) Whether the permit, if issued,
would in any way, directly or indirectly, conflict with any known program intended to enhance the survival
probabilities of the population from
which the wildlife sought to be covered
by the permit was or would be removed;
(iv) Whether the purpose for which
the permit is required would be likely
to reduce the threat of extinction facing the species of wildlife sought to be
covered by the permit;
(v) The opinions or views of scientists
or other persons or organizations having expertise concerning the wildlife or
other matters germane to the application; and
(vi) Whether the expertise, facilities,
or other resources available to the applicant appear adequate to successfully
accomplish the objectives stated in the
application.
(3) Permit conditions. In addition to
the general conditions set forth in part
13 of this subchapter, every permit
issued under this paragraph shall be
subject to the special condition that
the escape of living wildlife covered by
the permit shall be immediately reported to the Service office designated
in the permit.
(4) Duration of permits. The duration
of permits issued under this paragraph
shall be designated on the face of the
permit.

(b)(1) Application requirements for permits for incidental taking. A person wishing to get a permit for an activity prohibited by § 17.21(c) submits an application for activities under this paragraph. The Service provides Form 3–200
for the application to which all of the
following must be attached:
(i) A complete description of the activity sought to be authorized;
(ii) The common and scientific names
of the species sought to be covered by
the permit, as well as the number, age,
and sex of such species, if known;
(iii) A conservation plan that specifies:
(A) The impact that will likely result
from such taking;
(B) What steps the applicant will
take to monitor, minimize, and mitigate such impacts, the funding that
will be available to implement such
steps, and the procedures to be used to
deal with unforeseen circumstances;
(C) What alternative actions to such
taking the applicant considered and
the reasons why such alternatives are
not proposed to be utilized; and
(D) Such other measures that the Director may require as being necessary
or appropriate for purposes of the plan;
(2) Issuance criteria. Upon receiving
an application completed in accordance
with paragraph (b)(1) of this section,
the Director will decide whether or not
a permit should be issued. The Director
shall consider the general criteria in
§ 13.21(b) of this subchapter and shall
issue the permit if he finds that: (i) The
taking will be incidental; (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (iii) the applicant
will ensure that adequate funding for
the conservation plan and procedures
to deal with unforeseen circumstances
will be provided; (iv) the taking will
not appreciably reduce the likelihood
of the survival and recovery of the species in the wild; (v) the measures, if
any,
required
under
paragraph
(b)(1)(iii)(D) of this section will be met;
and (vi) he has received such other assurances as he may require that the
plan will be implemented. In making
his decision, the Director shall also
consider the anticipated duration and
geographic scope of the applicant’s
planned
activities,
including
the

220

U.S. Fish and Wildlife Serv., Interior

§ 17.22

amount of listed species habitat that is
involved and the degree to which listed
species and their habitats are affected.
(3) Permit conditions. In addition to
the general conditions set forth in part
13 of this subchapter, every permit
issued under this paragraph shall contain such terms and conditions as the
Director deems necessary or appropriate to carry out the purposes of the
permit and the conservation plan including, but not limited to, monitoring
and reporting requirements deemed
necessary for determining whether
such terms and conditions are being
complied with. The Director shall rely
upon existing reporting requirements
to the maximum extent practicable.
(4) Duration of permits. The duration
of permits issued under this paragraph
shall be sufficient to provide adequate
assurances to the permittee to commit
funding necessary for the activities authorized by the permit, including conservation activities and land use restrictions. In determining the duration
of a permit, the Director shall consider
the duration of the planned activities,
as well as the possible positive and negative effects associated with permits of
the proposed duration on listed species,
including the extent to which the conservation plan will enhance the habitat
of listed species and increase the longterm survivability of such species.
(5) Assurances provided to permittee in
case of changed or unforeseen circumstances. The assurances in this
paragraph (b)(5) apply only to incidental take permits issued in accordance
with paragraph (b)(2) of this section
where the conservation plan is being
properly implemented, and apply only
with respect to species adequately covered by the conservation plan. These
assurances cannot be provided to Federal agencies. This rule does not apply
to incidental take permits issued prior
to March 25, 1998. The assurances provided in incidental take permits issued
prior to March 25, 1998 remain in effect,
and those permits will not be revised as
a result of this rulemaking.
(i) Changed circumstances provided for
in the plan. If additional conservation
and mitigation measures are deemed
necessary to respond to changed circumstances and were provided for in
the plan’s operating conservation pro-

gram, the permittee will implement
the measures specified in the plan.
(ii) Changed circumstances not provided
for in the plan. If additional conservation and mitigation measures are
deemed necessary to respond to
changed circumstances and such measures were not provided for in the plan’s
operating conservation program, the
Director will not require any conservation and mitigation measures in addition to those provided for in the plan
without the consent of the permittee,
provided the plan is being properly implemented.
(iii) Unforeseen circumstances. (A) In
negotiating unforeseen circumstances,
the Director will not require the commitment of additional land, water, or
financial compensation or additional
restrictions on the use of land, water,
or other natural resources beyond the
level otherwise agreed upon for the species covered by the conservation plan
without the consent of the permittee.
(B) If additional conservation and
mitigation measures are deemed necessary to respond to unforeseen circumstances, the Director may require
additional measures of the permittee
where the conservation plan is being
properly implemented, but only if such
measures are limited to modifications
within conserved habitat areas, if any,
or to the conservation plan’s operating
conservation program for the affected
species, and maintain the original
terms of the conservation plan to the
maximum extent possible. Additional
conservation and mitigation measures
will not involve the commitment of additional land, water or financial compensation or additional restrictions on
the use of land, water, or other natural
resources otherwise available for development or use under the original terms
of the conservation plan without the
consent of the permittee.
(C) The Director will have the burden
of demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available.
These findings must be clearly documented and based upon reliable technical information regarding the status
and habitat requirements of the affected species. The Director will consider, but not be limited to, the following factors:

221

§ 17.23

50 CFR Ch. I (10–1–98 Edition)

(1) Size of the current range of the affected species;
(2) Percentage of range adversely affected by the conservation plan;
(3) Percentage of range conserved by
the conservation plan;
(4) Ecological significance of that
portion of the range affected by the
conservation plan;
(5) Level of knowledge about the affected species and the degree of specificity of the species’ conservation program under the conservation plan; and
(6) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.
(6) Nothing in this rule will be construed to limit or constrain the Director, any Federal, State, local, or Tribal
government agency, or a private entity, from taking additional actions at
its own expense to protect or conserve
a species included in a conservation
plan.
(c) Objection to permit issuance. (1) In
regard to any notice of a permit application published in the FEDERAL REGISTER, any interested party that objects to the issuance of a permit, in
whole or in part, may, during the comment period specified in the notice, request notification of the final action to
be taken on the application. A separate
written request shall be made for each
permit application. Such a request
shall specify the Service’s permit application number and state the reasons
why that party believes the applicant
does not meet the issuance criteria
contained in §§ 13.21 and 17.22 of this
subchapter or other reasons why the
permit should not be issued.
(2) If the Service decides to issue a
permit contrary to objections received
pursuant to paragraph (c)(1) of this section, then the Service shall, at least
ten days prior to issuance of the permit, make reasonable efforts to contact by telephone or other expedient
means, any party who has made a request pursuant to paragraph (c)(1) of
this section and inform that party of
the issuance of the permit. However,
the Service may reduce the time period
or dispense with such notice if it determines that time is of the essence and
that delay in issuance of the permit

would: (i) Harm the specimen or population involved; or (ii) unduly hinder
the actions authorized under the permit.
(3) The Service will notify any party
filing an objection and request for notice under paragraph (c)(1) of this section of the final action taken on the
application, in writing. If the Service
has reduced or dispensed with the notice period referred to in paragraph
(c)(2) of this section, it will include its
reasons therefore in such written notice.
[50 FR 39687, Sept. 30, 1985, as amended at 63
FR 8871, Feb. 23, 1998; 63 FR 52635, Oct. 1,
1998]

§ 17.23 Economic hardship permits.
Upon receipt of a complete application, the Director may issue a permit
authorizing any activity otherwise prohibited by § 17.21, in accordance with
the issuance criteria of this section in
order to prevent undue economic hardship. The Director shall publish notice
in the FEDERAL REGISTER of each application for a permit that is made under
this section. Each notice shall invite
the submission from interested parties,
within 30 days after the date of the notice, of written data, views, or arguments with respect to the application.
The 30-day period may be waived by
the Director in an emergency situation
where the life or health of an endangered animal is threatened and no reasonable alternative is available to the
applicant. Notice of any such waiver
shall be published in the FEDERAL REGISTER within 10 days following issuance
of the permit.
(a) Application requirements. Applications for permits under this section
must be submitted to the Director by
the person allegedly suffering undue
economic hardship because his desired
activity is prohibited by § 17.21. Each
application must be submitted on an
official application form (Form 3–200)
provided by the Service, and must include, as an attachment, all of the information required in § 17.22 plus the
following additional information:
(1) The possible legal, economic or
subsistence alternatives to the activity
sought to be authorized by the permit;
(2) A full statement, accompanied by
copies of all relevant contracts and

222

U.S. Fish and Wildlife Serv., Interior

§ 17.23

correspondence, showing the applicant’s involvement with the wildlife
sought to be covered by the permit (as
well as his involvement with similar
wildlife), including, where applicable,
that portion of applicant’s income derived from the taking of such wildlife,
or the subsistence use of such wildlife,
during the calendar year immediately
preceding either the notice in the FEDERAL REGISTER of review of the status
of the species or of the proposal to list
such wildlife as endangered, whichever
is earliest;
(3) Where applicable, proof of a contract or other binding legal obligation
which:
(i) Deals specifically with the wildlife
sought to be covered by the permit;
(ii) Became binding prior to the date
when the notice of a review of the status of the species or the notice of proposed rulemaking proposing to list
such wildlife as endangered was published in the FEDERAL REGISTER,
whichever is earlier; and
(iii) Will cause monetary loss of a
given dollar amount if the permit
sought under this section is not granted.
(b) Issuance criteria. Upon receiving
an application completed in accordance
with paragraph (a) of this section, the
Director will decide whether or not a
permit should be issued under any of
the three categories of economic hardship, as defined in section 10(b)(2) of
the Act. In making his decisions, the
Director shall consider, in addition to
the general criteria in § 13.21(b) of this
subchapter, the following factors:
(1) Whether the purpose for which the
permit is being requested is adequate
to justify removing from the wild or
otherwise changing the status of the
wildlife sought to be covered by the
permit;
(2) The probable direct and indirect
effect which issuing the permit would
have on the wild populations of the
wildlife sought to be covered by the
permit;
(3) The economic, legal, subsistence,
or other alternatives or relief available
to the applicant;
(4) The amount of evidence that the
applicant was in fact party to a contract or other binding legal obligation
which;

(i) Deals specifically with the wildlife
sought to be covered by the permit;
and
(ii) Became binding prior to the date
when the notice of a review of the status of the species or the notice of proposed rulemaking proposing to list
such wildlife as endangered was published in the FEDERAL REGISTER,
whichever is earlier.
(5) The severity of economic hardship
which the contract or other binding
legal obligation referred to in paragraph (b)(4) of this section would cause
if the permit were denied;
(6) Where applicable, the portion of
the applicant’s income which would be
lost if the permit were denied, and the
relationship of that portion to the balance of his income;
(7) Where applicable, the nature and
extent of subsistence taking generally
by the applicant; and
(8) The likelihood that applicant can
reasonably carry out his desired activity within one year from the date a notice is published in the FEDERAL REGISTER to review status of such wildlife,
or to list such wildlife as endangered,
whichever is earlier.
(c) Permit conditions. In addition to
the general conditions set forth in part
13 of this subchapter, every permit
issued under this section shall be subject to the following special conditions:
(1) In addition to any reporting requirements contained in the permit
itself, the permittee shall also submit
to the Director a written report of his
activities pursuant to the permit. Such
report must be postmarked or actually
delivered no later than 10 days after
completion of the activity.
(2) The death or escape of all living
wildlife covered by the permit shall be
immediately reported to the Service’s
office designated in the permit.
(d) Duration of permits issued under
this section shall be designated on the
face of the permit. No permit issued
under this section, however, shall be
valid for more than one year from the
date a notice is published in the FEDERAL REGISTER to review status of such
wildlife, or to list such wildlife as endangered, whichever is earlier.
[40 FR 44415, Sept. 26, 1975, as amended at 40
FR 53400, Nov. 18, 1975; 40 FR 58307, Dec. 16,
1975; 50 FR 39688, Sept. 30, 1985]

223

§ 17.31

50 CFR Ch. I (10–1–98 Edition)

Subpart D—Threatened Wildlife
§ 17.31 Prohibitions.
(a) Except as provided in subpart A of
this part, or in a permit issued under
this subpart, all of the provisions in
§ 17.21 shall apply to threatened wildlife, except § 17.21(c)(5).
(b) In addition to any other provisions of this part 17, any employee or
agent of the Service, of the National
Marine Fisheries Service, or of a State
conservation agency which is operating
a conservation program pursuant to
the terms of a Cooperative Agreement
with the Service in accordance with
section 6(c) of the Act, who is designated by his agency for such purposes, may, when acting in the course
of his official duties, take those threatened species of wildlife which are covered by an approved cooperative agreement to carry out conservation programs.
(c) Whenever a special rule in §§ 17.40
to 17.48 applies to a threatened species,
none of the provisions of paragraphs (a)
and (b) of this section will apply. The
special rule will contain all the applicable prohibitions and exceptions.
[43 FR 18181, Apr. 28, 1978, as amended at 44
FR 31580, May 31, 1979]

§ 17.32 Permits—general.
Upon receipt of a complete application the Director may issue a permit
for any activity otherwise prohibited
with regard to threatened wildlife.
Such permit shall be governed by the
provisions of this section unless a special rule applicable to the wildlife, appearing in §§ 17.40 to 17.48, of this part
provides otherwise. Permits issued
under this section must be for one of
the following purposes: Scientific purposes, or the enhancement of propagation or survival, or economic hardship,
or zoological exhibition, or educational
purposes, or incidental taking, or special purposes consistent with the purposes of the Act. Such permits may authorize a single transaction, a series of
transactions, or a number of activities
over a specific period of time.
(a)(1) Application requirements for permits for scientific purposes, or the enhancement of propagation or survival, or
economic hardship, or zoological exhi-

bition, or educational purposes, or special
purposes consistent with the purposes of
the Act. A person wishing to get a permit for an activity prohibited by § 17.31
submits an application for activities
under this paragraph. The Service provides Form 3–200 for the application to
which as much of the following information relating to the purpose of the
permit must be attached:
(i) The Common and scientific names
of the species sought to be covered by
the permit, as well as the number, age,
and sex of such species, and the activity sought to be authorized (such as
taking, exporting, selling in interstate
commerce);
(ii) A statement as to whether, at the
time of application, the wildlife sought
to be covered by the permit (A) is still
in the wild, (B) has already been removed from the wild, or (C) was born in
captivity;
(iii) A resume of the applicant’s attempts to obtain the wildlife sought to
be covered by the permit in a manner
which would not cause the death or removal from the wild of such wildlife;
(iv) If the wildlife sought to be covered by the permit has already been removed from the wild, the country and
place where such removal occurred; if
the wildlife sought to be covered by
permit was born in captivity, the country and place where such wildlife was
born;
(v) A complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be used, displayed, or maintained;
(vi) If the applicant seeks to have
live wildlife covered by the permit, a
complete description, including photographs or diagrams, of the facilities to
house and/or care for the wildlife and a
resume of the experience of those persons who will be caring for the wildlife;
(vii) A full statement of the reasons
why the applicant is justified in obtaining a permit including the details
of the activities sought to be authorized by the permit;
(viii) If the application is for the purpose of enhancement of propagation, a
statement of the applicant’s willingness to participate in a cooperative
breeding program and to maintain or
contribute data to a studbook;

224

U.S. Fish and Wildlife Serv., Interior

§ 17.50

this section, all prohibitions of 50 CFR
17.31 and exemptions of 50 CFR 17.32
shall apply to the bull trout Columbia
River and Klamath River population
segments within the contiguous United
States.
(2) Exceptions. No person shall take
this species, except in accordance with
applicable State and Native American
Tribal fish and wildlife conservation
laws and regulations, as constituted in
all respects relevant to protection of
bull trout in effect on June 10, 1998.
(3) Any violation of applicable State
and Native American Tribal fish and
wildlife conservation laws or regulations with respect to the taking of this
species is also a violation of the Endangered Species Act.
(4) No person shall possess, sell, deliver, carry, transport, ship, import, or
export, any means whatsoever, any
such species taken in violation of this
section or in violation of applicable
State and Native American Tribal fish
and game laws and regulations.
(5) It is unlawful for any person to attempt to commit, solicit another to
commit, or cause to be committed, any
offense defined in paragraphs (v) (2)
through (4) of this section.
[40 FR 44415, Sept. 26, 1975]
EDITORIAL NOTE: For FEDERAL REGISTER citations to § 17.44, see the List of CFR Sections Affected in the Finding Aids section of
this volume.

§ 17.45 Special rules—snails and clams.
[Reserved]
§ 17.46 Special rules—crustaceans.
(a) Madison Cave isopod (Antrolana
lira). (1) All provisions of § 17.31 (a) and
(b) apply to this species except that it
may be taken for scientific purposes
without Federal permits issued pursuant to these regulations: Provided, that
all other Federal, State, or local laws,
regulations, ordinances or other restrictions or limitations have been
complied with.
(b) [Reserved]
[47 FR 43701, Oct. 4, 1982]

§ 17.47

[Reserved]

§ 17.48 Special rules—common sponges
and other forms. [Reserved]

Subpart E—Similarity of
Appearance
SOURCE: 42 FR 32377, June 24, 1977, unless
otherwise noted.

§ 17.50 General.
(a) Whenever a species which is not
Endangered or Threatened closely resembles an Endangered or Threatened
species, such species may be treated as
either Endangered or Threatened if the
director makes such determination in
accordance with section 4(e) of the Act
and the criteria of paragraph (b) of this
section. After the Director has made
such determination in accordance with
the notification procedures specified in
the Act, such species shall appear in
the list in § 17.11 (Wildlife) or § 17.12
(Plants) with the notation ‘‘(S/A)’’
(similarity of appearance) in the ‘‘Status’’ column, following either a letter
‘‘E’’ or a letter ‘‘T’’ to indicate whether the species is being treated as Endangered or Threatened.
(b) In determining whether to treat a
species as Endangered or Threatened
due to similarity of appearance, the Director shall consider the criteria in
section 4(e) of the Act, as indicated
below:
(1) The degree of difficulty enforcement personnel would have in distinguishing the species, at the point in
question, from an Endangered or
Threatened species (including those
cases where the criteria for recognition
of a species are based on geographical
boundaries);
(2) The additional threat posed to the
Endangered or Threatened species by
the loss of control occasioned because
of the similarity of appearance; and
(3) The probability that so designating a similar species will substantially
facilitate enforcement and further the
purposes and policy of the Act.
Example 1. The ABC sparrow is Endangered
wildlife. The ABD sparrow is a subspecies
that is so similar to the ABC sparrow that

245

§ 222.22

50 CFR Ch. II (10–1–98 Edition)

(Pub. L. 94–359)
[41 FR 36028, Aug. 26, 1976]

National Marine Fisheries Service/NOAA, Commerce
species or stocks and habitat as a result of the proposed activity;
(iii) The availability of effective
monitoring techniques;
(iv) The use of the best available
technology for minimizing or mitigating impacts; and
(v) The views of the public, scientists
and other interested parties knowledgeable of the species or stocks or
other matters related to the application.
(2) To issue the permit, the Assistant
Administrator must find that:
(i) The taking will be incidental;
(ii) The applicant will, to the maximum extent practicable, monitor, minimize and mitigate the impacts of such
taking;
(iii) The taking will not appreciably
reduce the likelihood of the survival
and recovery of the species in the wild;
(iv) The applicant has amended the
conservation plan to include any measures (not originally proposed by the applicant) that the Assistant Administrator determines are necessary or appropriate; and
(v) There are adequate assurances
that the conservation plan will be
funded and implemented, including any
measures required by the Assistant Administrator.
(d) Permit conditions. In addition to
the general conditions set forth in part
220 of this chapter, every permit issued
under this section will contain such
terms and conditions as the Assistant
Administrator deems necessary and appropriate, including, but not limited to
the following:
(1) Reporting requirements or rights
of inspection for determining whether
the terms and conditions are being
complied with;
(2) The species and number of animals covered;
(3) The authorized method of taking;
(4) The procedures to be used to handle or dispose of any animals taken;
and
(5) The payment of a fee to reimburse
the National Marine Fisheries Service
the cost of processing the application.
(e) Duration of permits. The duration
of permits issued under this section
will be such as to provide adequate assurances to the permit holder to commit funding necessary for the activities

§ 222.22

authorized by the permit, including
conservation activities. In determining
the duration of a permit, the Assistant
Administrator will consider the duration of the proposed activities, as well
as the possible positive and negative
effects associated with issuing a permit
of the proposed duration on listed species, including the extent to which the
conservation plan is likely to enhance
the habitat of the endangered species
or increase the long-term survivability
of the species.
(f) Certificates of inclusion. (1) Any individual who wishes to conduct an activity covered by a general incidental
take permit must apply to the Assistant Administrator for a certificate of
inclusion. Each application must be
signed and dated and include the following:
(i) The general incidental take permit under which the applicant wants
coverage.
(ii) The name, address and telephone
number of the applicant. If the applicant is a partnership or a corporate entity, the applicable details.
(iii) A description of the activity the
applicant seeks to have covered under
the general incidental take permit including the anticipated dates, duration, and specific location; and
(iv) A signed certification that the
applicant has read and understands the
general incidental take permit and the
conservation plan, will comply with
their terms and conditions, and will
fund and implement applicable measures of the conservation plan.
(2) To issue a certificate of inclusion,
the Assistant Administrator must find
that:
(i) The applicant will be engaged in
the activity covered by the general permit and
(ii) The applicant has made adequate
assurances that the applicable measures of the conservation plan will be
funded and implemented.
(g) Assurances provided to permittee in
case of changed or unforeseen circumstances. The assurances in this
paragraph (g) apply only to incidental
take permits issued in accordance with
paragraph (c) of this section where the
conservation plan is being properly implemented, and apply only with respect
to species adequately covered by the

§ 222.23

50 CFR Ch. II (10–1–98 Edition)

conservation plan. These assurances
cannot be provided to Federal agencies.
This rule does not apply to incidental
take permits issued prior to March 25,
1998. The assurances provided in incidental take permits issued prior to
March 25, 1998 remain in effect, and
those permits will not be revised as a
result of this rulemaking.
(1) Changed circumstances provided for
in the plan. If additional conservation
and mitigation measures are deemed
necessary to respond to changed circumstances and were provided for in
the plan’s operating conservation program, the permittee will implement
the measures specified in the plan.
(2) Changed circumstances not provided
for in the plan. If additional conservation and mitigation measures are
deemed necessary to respond to
changed circumstances and such measures were not provided for in the plan’s
operating
conservation
program,
NMFS will not require any conservation and mitigation measures in addition to those provided for in the plan
without the consent of the permittee,
provided the plan is being properly implemented.
(3) Unforeseen circumstances. (i) In negotiating unforeseen circumstances,
NMFS will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or
other natural resources beyond the
level otherwise agreed upon for the species covered by the conservation plan
without the consent of the permittee.
(ii) If additional conservation and
mitigation measures are deemed necessary to respond to unforeseen circumstances, NMFS may require additional measures of the permittee where
the conservation plan is being properly
implemented, but only if such measures are limited to modifications within conserved habitat areas, if any, or to
the conservation plan’s operating conservation program for the affected species, and maintain the original terms
of the conservation plan to the maximum extent possible. Additional conservation and mitigation measures will
not involve the commitment of additional land, water or financial compensation or additional restrictions on
the use of land, water, or other natural

resources otherwise available for development or use under the original terms
of the conservation plan without the
consent of the permittee.
(iii) NMFS will have the burden of
demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available.
These findings must be clearly documented and based upon reliable technical information regarding the status
and habitat requirements of the affected species. NMFS will consider, but
not be limited to, the following factors:
(A) Size of the current range of the
affected species;
(B) Percentage of range adversely affected by the conservation plan;
(C) Percentage of range conserved by
the conservation plan;
(D) Ecological significance of that
portion of the range affected by the
conservation plan;
(E) Level of knowledge about the affected species and the degree of specificity of the species’ conservation program under the conservation plan; and
(F) Whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.
(h) Nothing in this rule will be construed to limit or constrain the Assistant Administrator, any Federal, State,
local, or tribal government agency, or
a private entity, from taking additional actions at its own expense to
protect or conserve a species included
in a conservation plan.
[55 FR 20606, May 18, 1990, as amended at 63
FR 8872, Feb. 23, 1998]

§ 222.23 Permits for scientific purposes
or to enhance the propagation or
survival of the affected endangered
species.
(a) The Director, National Marine
Fisheries Service, may issue permits
for scientific purposes or to enhance
the propagation or survival of the affected endangered species which authorize, under such terms and conditions as he may prescribe, taking, importation, or certain other acts with
respect to endangered species otherwise prohibited by section 9 of the
Endangered Species Act of 1973. The

National Marine Fisheries Service/NOAA, Commerce

§ 222.23

sea turtle (Lepidochelys olivacea) breeding colony population on the Pacific
coast of Mexico. Of these, the National
Marine Fisheries Service has sole agency jurisdiction for sea turtles while the
turtles are in the water and the U.S.
Fish and Wildlife Service has jurisdiction for sea turtles while the turtles
are on land. Within the jurisdiction of
a State, more restrictive State laws or
regulations in regard to endangered
species shall prevail in regard to taking. Proof of compliance with applicable State laws will be required before a
permit will be issued.
(b) Application procedures. To obtain
such a permit, an application must be
made to the Director in accordance
with this subpart, except for marine
mammal permits which shall be issued
in accordance with the provisions of
part 216, subpart D of this chapter, and
sea turtle permits which shall be issued
in accordance with part 220, subpart E
of this chapter. The sufficiency of the
application shall be determined by the
Director in accordance with the requirements of this part and, in that
connection, he may waive any requirement for information, or require any
elaboration or further information
deemed necessary. The following information will be used as the basis for determining whether an application is
complete and whether a permit for scientific purposes or to enhance the
propagation or survival of the affected
endangered species should be issued by
the Director. An original and four copies of the completed application shall
be submitted to the Director, National
Marine Fisheries Service, National
Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce, Washington, DC 20235. Assistance may be obtained by writing the
Director or calling the Marine Mammal and Endangered Species Division
in Washington, DC (202–343–9445 and effective December 2, 1974, it will become
202–634–7529). At least 45 days should be
allowed for processing. An application
for a permit shall provide the following
information (when the information requested is not applicable put ‘‘N.A.’’)
and such other information that the
Director may require:
(1) Title: As applicable, either:

species listed as endangered under either the Endangered Species Conservation Act of 1969 or the Endangered Species Act of 1973 and currently under the
jurisdiction of the Secretary of Commerce
are:
Shortnose
sturgeon
(Acipenser
brevirostrum);
Totoaba
(Cynoscian macdonaldi), Snake River
sockeye salmon (Oncorhynchusnerka),
Umpqua
River
cutthroat
trout
(Oncorhynchus clarki clarki); Southern
California
steelhead
(Oncorhynchus
mykiss), which includes all naturally
spawned populations of steelhead (and
their progeny) in streams from the
Santa Maria River, San Luis Obispo
County,
California
(inclusive)
to
Malibu Creek, Los Angeles County,
California (inclusive); Upper Columbia
River steelhead (Oncorhynchus mykiss),
which includes the Wells Hatchery
stock and all naturally spawned populations of steelhead (and their progeny)
in streams in the Columbia River Basin
upstream from the Yakima River,
Washington, to the United States-Canada Border; Sacramento River winterrun chinook salmon (Oncorhynchus
tshawytscha); Western North Pacific
(Korean)
gray
whale
(Eschrichtius
robustus), Blue whale (Balaenoptera
musculus), Humpback whale (Megaptera
novaeangliae),
Bowhead
whale
(Balaenamysticetus),
Right
whales
(Eubalaena spp.), Fin or finback whale
(Balaenoptera physalus), Sei whale
(Balaenoptera borealis), Sperm whale
(Physeter catodon); Cochito (Phocoena
Sinus), Chinese river dolphin (Lipotes
vexillifer);
Indus
River
dolphin
(Platanista minor); Caribean monk seal
(Monachus tropicalis) Hawaiian monk
seal (Monachus schauinslandi); Mediterranean
monk
seal
(Monachus
monachus); Saimaa seal (Phoca hispida
saimensis); Steller sea lion (Eumetopias
jubatus), western population, which
consists of Steller sea lions from breeding colonies located west of 144° W.
long.;
Leatherback
sea
turtle
(Dermochelys
coriacea),
Pacific
hawksbill sea turtle (Eretmochelys
imbricata bissa), Atlantic hawksbill sea
turtle
(Eretmochelys
imbricata
imbricata), Atlantic ridley sea turtle
(Lepidochelys kempii). Green sea turtle
(Chelonia mydas) breeding colony populations in Florida and on the Pacific
coast of Mexico, and the olive ridley

§ 222.23

50 CFR Ch. II (10–1–98 Edition)

(i) Application for Permit for Scientific Purposes under the Endangered
Species Act of 1973; or
(ii) Application for Permit to Enhance the Propagation or Survival of
the Endangered Species Under the Endangered Species Act of 1973.
(2) The date of the application.
(3) The identity of the applicant including complete name, address, and
telephone number. If the applicant is a
partnership or a corporate entity set
forth the details. If the endangered species is to be utilized by a person other
than the Applicant, set forth the name
of that person and such other information as would be required if such person
were an Applicant.
(4) A description of the purpose of the
proposed acts, including:
(i) A detailed justification of the
need for the endangered species, including a discussion of possible alternatives, whether or not under the control of the applicant; and
(ii) A detailed description of how the
species will be used.
(5) A detailed description of the project, or program, in which the endangered species is to be used, including:
(i) The period of time over which the
project or program will be conducted;
(ii) A list of the names and addresses
of the sponsors or cooperating institutions and the scientists involved;
(iii) A copy of the formal research
proposal or contract if one has been
prepared;
(iv) A statement of whether the proposed project or program has broader
significance than the individual researcher’s goals (i.e., does the proposed
project or program respond directly or
indirectly to recommendation of any
national or international scientific
body charged with research or management of the endangered species, and, if
so, how?); and
(v) A description of the arrangements, if any, for the disposition of any
dead specimen or its skeleton or other
remains, for the continued benefit to
science, in a museum or other institutional collection.
(6) A description of the endangered
species which is the subject of the application, including the following:
(i) A list of each species and the number of each, including the common and

scientific name; the subspecies (if applicable); population group, and range;
(ii) A physical description of each
animal, including the age, size, and
sex;
(iii) A list of the probable dates of
capture or other taking, importation,
exportation, and other acts which require a permit, for each animal, and
the location of capture or other taking,
importation, exportation, and other
acts which require a permit, as specifically as possible;
(iv) A description of the status of the
stock of each species related insofar as
possible to the location or area of taking;
(v) A description of the manner of
taking for each animal, including the
gear to be used;
(vi) The name and qualifications of
the persons or entity which will capture or otherwise take the animals;
(vii) If the capture or other taking is
to be done by a contractor, a statement
as to whether a qualified member of
your staff (include name(s) and qualifications) will supervise or observe the
capture or other taking. Accompany
such statement with a copy of the proposed contract or a letter from the contractor indicating agreement to capture or otherwise taken the animals,
should a permit be granted;
(7) A description of the manner of
transportation of any live animal
taken, imported, exported, or shipped
in interstate commerce, including:
(i) Mode of transportation;
(ii) Name of transportation company;
(iii) Length of time in transit for the
transfer of the animal(s) from the capture site to the holding facility;
(iv) Length of time in transit for any
future move or transfer of the animal(s) that is planned;
(v) The qualifications of the common
carrier or agent used for transportation of the animals;
(vi) A description of the pen, tank,
container, cage, cradle, or other devices used, both to hold the animal at
the capture site and during transportation;
(vii) Special care before and during
transportation, such as salves, antibiotics, moisture; and

National Marine Fisheries Service/NOAA, Commerce
(viii) A statement as to whether the
animals will be accompanied by a veterinarian or other similarly qualified
person, and the qualifications of such
person.
(8) Describe the contemplated care
and maintenance of any live animals
sought, including a complete description of the facilities where any such
animals will be maintained including:
(i) The dimensions of the pools or
other holding facilities and the number, sex, and age of animals by species
to be held in each;
(ii) The water supply, amount, and
quality;
(iii) The diet, amount and type, for
all animals;
(iv) Sanitation practices used;
(v) Qualifications and experience of
the staff; and
(vi) A written certification from a licensed
veterinarian
knowledgeable
about the species (or related species) or
group which is the subject of the application, or from a recognized expert on
the species (or related species) or group
covered in the application that he has
personally reviewed the amendments
for transporting and maintaining the
animal(s) and that in his opinion they
are adequate to provide for the wellbeing of the animal; and
(vii) The availability in the future of
a consulting expert or veterinarian
meeting paragraph (b)(8)(vi) requirements of this section;
(9) A statement of willingness to participate in a cooperative breeding program and maintain or contribute data
to a stud book.
(10) A statement of how the applicant’s proposed project or program will
enhance or benefit the wild population.
(11) For the 5 years preceding the
date of this application, provide a detailed description of all mortalities involving species which were under the
control of or utilized by the applicant
and are either presently listed as endangered species or are taxonomically
related within the Order to the species
which is the subject of this application,
including:
(i) A list of all endangered species
and species related to the species which
is the subject of this application; captured, transported, maintained, or utilized by the applicant for scientific

§ 222.23

purposes or to enhance the propagation
or survival of the affected species, and/
or for all such species caused to be captured, transported, maintained, or utilized for scientific purposes or to enhance the propagation or survival of
the affected species, by the Applicant;
(ii) The numbers of mortalities
among such animals by species, by
date, location of capture, i.e., from
which population, and location of such
mortalities;
(iii) The cause(s) of any such mortalities; and
(iv) The steps which have been taken
by Applicant to avoid or decrease any
such mortalities.
(12) A certification in the following
language:
I hereby certify that the foregoing information is complete, true and correct to the
best of my knowledge and belief. I understand that this information is submitted for
the purpose of obtaining a permit under the
Endangered Species Act of 1973 (87 Stat. 864,
Pub. L. 93–205, 16 U.S.C. 1531 et seq.) and regulations promulgated thereunder, and that
any false statement may subject me to the
criminal penalties of 18 U.S.C. 1001, or to
penalties under the Endangered Species Act
of 1973.

(13) The applicant and/or an officer
thereof must sign the application.
(c) Issuance criteria. The Director
shall specifically consider, among
other criteria, the following in determining whether to issue a permit for
scientific purposes or to enhance the
propagation or survival of the affected
endangered species:
(1) Whether the permit was applied
for in good faith;
(2) Whether the permit if granted and
exercised will not operate to the disadvantage of the endangered species;
(3) Whether the permit would be consistent with the purposes and policy
set forth in section 2 of the Act;
(4) Whether the permit would further
a bona fide and necessary or desirable
scientific purpose or enhance the propagation or survival of the endangered
species, taking into account the benefits anticipated to be derived on behalf
of the endangered species;
(5) The status of the population of
the requested species, and the effect of
the proposed action on the population,
both direct and indirect;

§ 222.24

50 CFR Ch. II (10–1–98 Edition)

(6) If a live animal is to be taken,
transported, or held in captivity—the
applicant’s qualifications for the proper care and maintenance of the species
and the adequacy of his facilities;
(7) Whether alternative non-endangered species or population stocks can
and should be used;
(8) Whether the animal was born in
captivity or was (or will be) taken from
the wild;
(9) Provision for disposition of the
species if and when the applicant’s
project or program terminates;
(10) How the applicant’s needs, program, and facilities compare and relate
to proposed and ongoing projects and
programs;
(11) Whether the expertise, facilities,
or other resources available to the applicant appear adequate to successfully
accomplish the objectives stated in the
application;
(12) Opinions or views of scientists or
other persons or organizations knowledgeable of the species which is the
subject of the application or of other
matters germane to the application;
and
(d) Permits applied for under this
section shall contain terms and conditions as the Director may deem appropriate, including:
(1) The number and kind of species
which are covered;
(2) The location and manner of taking;
(3) Port of entry or export;
(4) The methods of transportation,
care and maintenance to be used with
live species;
(5) Any requirements for reports or
rights of inspections with respect to
any activities carried out pursuant to
the permit;
(6) The transferability or assignability of the permit;
(7) The sale or other disposition of
the species, its progeny or the species
product;
(8) A reasonable fee covering the
costs of issuance of such permit, including reasonable inspections and an
appropriate apportionment of overhead
and administrative expenses of the Department of Commerce. All such fees
will be deposited in the Treasury to the
credit of the appropriation which is

current and chargeable for the cost of
furnishing the service.
[39 FR 41375, Nov. 27, 1974]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 222.23, see the List of CFR
Sections Affected in the Finding Aids section of this volume.

§ 222.24 Procedures for issuance of
permits.
(a) Whenever application for a permit
is received by the Director which the
Director deems sufficient, he shall, as
soon as practicable, publish a notice
thereof in the FEDERAL REGISTER. Information received by the Director as a
part of the application shall be available to the public as a matter of public
record at every stage of the proceeding.
An interested party may within 30 days
after the date of publication of such
notice, submit to the Director his written data, views, or arguments with respect to the taking, importation, or
other action proposed in the application and may request a hearing in connection with the action to be taken
thereon.
(b) If a request for a hearing is made
within the 30–day period referred to in
paragraph (a) of this section, or if the
Director determines that a hearing
would otherwise be advisable, the Director may, within 60 days after the
date of publication of the notice referred to in paragraph (a) of this section, afford to such requesting party or
parties an opportunity for a hearing.
Such hearing shall also be open to participation by any interested members
of the public. Notice of the date, time,
and place of such hearing shall be published in the FEDERAL REGISTER not
less than 15 days in advance of such
hearing. Any interested person may appear in person or through representatives at the hearing and may submit
any relevant material, data, views,
comments, arguments, or exhibits. A
summary record of the hearing shall be
kept.
(c) Except as provided in subpart D of
15 CFR part 904, as soon as practicable
but not later than 30 days after the
close of the hearing (or if no hearing is
held, as soon as practicable after the
end of the 30 days succeeding publication of the notice referred to in paragraph (a) of this section) the Director

National Marine Fisheries Service/NOAA, Commerce

§ 222.31

date of notification, unless otherwise
specified.

shall issue or deny issuance of the permit. Notice of the decision of the Director shall be published in the FEDERAL REGISTER within 10 days after the
date of the issuance or denial and indicate where copies of the permit, if
issued, may be obtained.
(d) If a permit is issued, the Director
shall publish notice thereof in the FEDERAL REGISTER, including his finding
that (1) such permit was applied for in
good faith, (2) if granted and exercised
will not operate to the disadvantage of
such endangered species, and (3) will be
consistent with the purposes and policy
set forth in section 2 of the Endangered
Species Act of 1973. The requirements
of this paragraph pertain solely to the
permits issued under § 222.23.
(e) The Director may waive the thirty-day period in an emergency situation where the health or life of an endangered animal is threatened and no
reasonable alternative is available to
the applicant, but notice of any such
waiver shall be published by the Director in the FEDERAL REGISTER within
ten days following the issuance of the
certificate of exemption or permit.

[39 FR 41375, Nov. 27, 1974]

§ 222.27 Procedures for suspension,
revocation, or modification of permits.
Any violation of the applicable provisions of parts 217 through 222 of this
chapter, or of the Act, or of a condition
of the permit may subject the certificate holder to the following:
(a) The penalties provided in the Act;
and
(b) Suspension, revocation, or modification of the permit, as provided in
subpart D of 15 CFR part 904.
[49 FR 1043, Jan. 6, 1984, as amended at 55 FR
20607, May 18, 1990]

§ 222.28

Possession of permits.

(a) Any permit issued under these
regulations must be in the possession
of the person to whom it is issued (or
an agent of such person) during:
(1) The time of the authorized taking,
importation, exportation, or other act;
(2) The period of any transit of such
person or agent which is incident to
such taking, importation, exportation,
or other act; and
(3) Any other time while any animal
under such permit is in the possession
of such person or agent.
(b) A duplicate copy of the issued permit must be physically attached to the
tank, container, package, enclosure, or
other means of containment, in which
the animal is placed for purposes of
storage, transit, supervision, or care.

[39 FR 41375, Nov. 27, 1974, as amended at 42
FR 28139, June 2, 1977; 49 FR 1042, Jan. 6, 1984;
55 FR 20607, May 18, 1990]

§ 222.25 Applications for modification
of permit by permittee.
Where circumstances have changed
so that an applicant or permittee
desires to have any term or condition
of his application or permit modified,
he must submit in writing full justification and supporting information
in conformance with the provisions of
this part and the part under which the
permit has been issued or requested.
Such applications for modification are
subject to the same issuance criteria as
are original applications, as provided
in §§ 222.22(c) and 222.23(c).

[39 FR 41375, Nov. 27, 1974]

Subpart D—Special Prohibitions
§ 222.31 Approaching
whales in Hawaii.

humpback

Except as provided in subpart C (Endangered Fish or Wildlife Permits) of
this part it is unlawful for any person
subject to the jurisdiction of the
United States to commit, to attempt
to commit, to solicit another to commit, or to cause to be committed, within 200 nautical miles (370.4 km) of the
Islands of Hawaii, any of the following
acts with respect to humpback whales
(Megaptera novaeangliae):

[39 FR 41375, Nov. 27, 1974, as amended at 55
FR 20607, May 18, 1990]

§ 222.26 Amendment of permits by
NMFS.
All permits are issued subject to the
condition that the National Marine
Fisheries Service reserves the right to
amend the provisions of a permit for
just cause at any time during its term.
Such amendments take effect on the

§ 222.32

50 CFR Ch. II (10–1–98 Edition)

(a) Operate any aircraft within 1,000
ft (300 m) of any humpback whale; or
(b) Approach by any means, within
100 yd (90 m) of any humpback whale;
or
(c) Cause a vessel or other object to
approach within 100 yd (90 m) of a
humpback whale; or
(d) Disrupt the normal behavior or
prior activity of a whale by any other
act or omission. A disruption of normal
behavior may be manifested by, among
other actions on the part of the whale,
a rapid change in direction or speed; escape tactics such as prolonged diving,
underwater course changes, underwater
exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities, attempts by a
whale to shield a calf from a vessel or
human observer by tail swishing or by
other protective movement; or the
abandonment of a previously frequented area.

an exception has the burden of proving
that the exception is applicable:
(1) Paragraphs (a) and (b) of this section do not apply if a right whale approach is authorized by NMFS through
a permit issued under subpart C (Endangered Fish or Wildlife Permits) of
this part or through a similar authorization.
(2) Paragraphs (a) and (b) of this section do not apply where compliance
would create an imminent and serious
threat to a person, vessel, or aircraft.
(3) Paragraphs (a) and (b) of this section do not apply when approaching to
investigate a right whale entanglement
or injury, or to assist in the
disentanglement or rescue of a right
whale, provided that permission is received from NMFS or a NMFS designee
prior to the approach.
(4) Paragraphs (a) and (b) of this section do not apply to an aircraft unless
the aircraft is conducting whale watch
activities or is being operated for that
purpose.
(5) Paragraph (b) of this section does
not apply to the extent that a vessel is
restricted in her ability to maneuver,
and because of the restriction, cannot
comply with paragraph (b) of this section.

[60 FR 3775, Jan. 19, 1995]

§ 222.32 Approaching
right whales.

North

Atlantic

(a) Prohibitions. Except as provided
under paragraph (c) of this section, it
is unlawful for any person subject to
the jurisdiction of the United States to
commit, attempt to commit, to solicit
another to commit, or cause to be committed any of the following acts:
(1) Approach (including by interception) within 500 yards (460 m) of a right
whale by vessel, aircraft, or any other
means;
(2) Fail to undertake required right
whale avoidance measures specified
under paragraph (b) of this section.
(b) Right whale avoidance measures.
Except as provided under paragraph (c)
of this section, the following avoidance
measures must be taken if within 500
yards (460 m) of a right whale:
(1) If underway, a vessel must steer a
course away from the right whale and
immediately leave the area at a slow
safe speed;
(2) An aircraft must take a course
away from the right whale and immediately leave the area at a constant
airspeed.
(c) Exceptions. The following exceptions apply to this section, but any
person who claims the applicability of

[62 FR 6738, Feb. 13, 1997]

§ 222.33 Special prohibitions relating
to endangered Steller sea lion protection.
General. The regulatory provisions
set forth in part 227, which govern
threatened Steller sea lions, shall also
apply to the western population of
Steller sea lions, which consists of all
Steller sea lions from breeding colonies
located west of 144 °W. long.
[62 FR 24355, May 5, 1997]

Subpart E—Incidental Capture of
Endangered Sea Turtles
§ 222.41 Policy regarding
capture of sea turtles.

incidental

Shrimp fishermen in the southeastern United States and the Gulf of Mexico who comply with rules for threatened sea turtles specified in § 227.72(e)
of this subchapter will not be subject

National Marine Fisheries Service/NOAA, Commerce

(a) Act means the Endangered Species
Act of 1973, 87 Stat. 884, 16 U.S.C. 1531
through 1543, Pub. L. 93–205.
(b) Agreements mean signed documented statements of the actions to be
taken by the State(s) and the Director
in furthering certain purposes of the
Act. They include:
(1) A Cooperative Agreement entered
into pursuant to section 6(c) of the Act
and, where appropriate, containing provisions found in section 6(d)(2) of the
Act.
(2) A Grant-In-Aid Award which includes a statement of the actions to be
taken in connection with the conservation of endangered or threatened species receiving Federal financial assistance, objectives and costs of such actions, and costs to be borne by the Federal Government and by the State(s).
(c) Application for Federal Assistance
means a description of work to be accomplished, including objectives and
needs, expected results and benefits,
approach, cost, location and time required for completion.
(d) Director means the Director of the
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce, or his authorized designee.
(e) Program means a State-developed
plan for the conservation and management of all resident species which are
deemed by the Secretary to be endangered or threatened and those which
are deemed by the State to be endangered or threatened, which includes
goals, priorities, strategies, actions,
and funding necessary to accomplish
the objectives on an individual species
basis.
(f) Project means a substantial undertaking to conserve the various endangered or threatened species.
(g) Project segment means an essential
part or a division of a project, usually
separated as a period of time, occasionally as a unit of work.
(h) Resident species means, for purposes of these regulations, with respect
to a State, a species which exists in the
wild in that State during any part of
its life.
(i) Secretary means the Secretary of
Commerce or his authorized designee.

to civil penalties under the Act for incidental captures of endangered sea
turtles by shrimp trawl gear.
[52 FR 24251, June 29, 1987]

§ 222.42 Special prohibitions relating
to leatherback sea turtles.
Special prohibitions relating to
leatherback sea turtles are provided at
§ 227.72(e)(2)(iv) of this chapter.
[60 FR 25623, May 12, 1995]

PART 225—FEDERAL/STATE COOPERATION IN THE CONSERVATION OF ENDANGERED AND
THREATENED SPECIES
Sec.
225.1
225.2
225.3
225.4
225.5
225.6
225.7
225.8
225.9
225.10
225.11
225.12
225.13
225.14

§ 225.3

Purpose of regulations.
Scope of regulations.
Definitions.
Cooperation with the States.
Cooperative agreement.
Allocation of funds.
Financial assistance.
Availability of funds.
Payments.
Assurances.
Submission of documents.
Project evaluation.
Contracts.
Inspection.

AUTHORITY: Endangered Species Act of
1973, 87 Stat. 884, 16 U.S.C. 1531–1543, Pub. L.
93–205.
SOURCE: 41 FR 24354, June 16, 1976, unless
otherwise noted.

§ 225.1 Purpose of regulations.
The regulations in this part implement section 6 of the Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C.
1531 through 1543, Pub. L. 93–205 which
provides, under certain circumstances,
for cooperative agreements with and financial assistance to the States.
§ 225.2 Scope of regulations.
This part applies to endangered and
threatened species under the jurisdiction of the Department of Commerce
(see 50 CFR 222.23(a)).
§ 225.3 Definitions.
In addition to the definitions contained in the Act, and unless the context otherwise requires, in this part
225:

APPENDIX 12:

List of FWS/NMFS Washington, D.C. and Regional Offices

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
Division of Endangered Species
1849 C St., N.W. - Mail Stop 420ARLSQ
Washington, D.C. 20240
(202) 208-4646

U.S. Fish and Wildlife Service
Division of Endangered Species
4401 N. Fairfax Drive, Room 420
Arlington, VA 22203
(703) 358-2106

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

NATIONAL MARINE FISHERIES SERVICE
Washington, D.C. Office:
Headquarters Office
National Marine Fisheries Service
Endangered Species Division
Office of Protected Resources
1315 East-West Highway, PR 3
Silver Spring, MD 20910
Telephone: (301) 713-1401
Fax: (301) 713-0376

National Marine Fisheries Service
Office of Fisheries Conservation and
Management
1315 East-West Highway
Silver Spring, MD 20910
(301) 713-2334

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
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

4. RENEWABLE

1. PERMITTEE

5. MAY COPY

YES
_____

6. EFFECTIVE

8. NAME AND TITLE OF PRINCIPAL OFFICER (IF # 1 IS A BUSINESS)

YES
_____

7. EXPIRES

9. TYPE OF PERMIT

10. LOCATION WHERE AUTHORIZED ACTIVITY MAY BE CONDUCTED

11. CONDITIONS AND AUTHORIZATIONS:

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.

THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN, STATE, LOCAL OR
OTHER FEDERAL LAW.

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

ORIGINAL

TITLE

DATE

APPENDIX 16:

Examples of Federal Register Notice of Receipt of a Permit Application
and
Notice of Availability of a NEPA Document

Federal Register / Vol. 60, No. 20 / Tuesday, January 31, 1995 / Notices
The applicant requests amendment of
their permit for take (capture and
release) of the Santa Cruz long-toed
salamander (Ambystoma
macrodactylum croceum) to include
Monterey County, California to
determine presence or absence of the
species for the purpose of enhancing its
survival.
Permit No. PRT–797315
Applicant: Dr. Michael L. Morrison,
Tucson, Arizona
The applicant requests a permit to
take (capture, mark, and release) the salt
marsh harvest mouse (Reithrodontomys
raviventris) and the Fresno kangaroo rat
(Dipodomys nitratoides exilis) at the
Lemoore Naval Air Station in Fresno,
California to conduct population/habitat
studies and to determine presence or
absence of the species for the purpose
of scientific research and for enhancing
its survival. These studies were
previously authorized under the
Regional Director’s permit no. PRT–
702631.
Permit No. PRT–798017
Applicant: Habitat Restoration Group,
Felton, California
The applicant requests a permit to
take (capture and release) the Santa
Cruz long-toed salamander (Ambystoma
macrodactylum croceum) in Santa Cruz
and Monterey Counties, California to
determine presence or absence of the
species for the purpose of enhancing its
survival.
Permit No. PRT–798025
Applicant: California Desert Studies
Consortium, Fullerton, California
The applicant requests a permit to
take (capture, mark, and release) the
Mohave tui chub (Gila bicolor
mohavensis) in Lake Tuendae, Desert
Studies Center, Baker, California to
determine presence or absence of the
species for the purpose of enhancing its
survival.
Permit No. PRT–798003
Applicant: North State Resources, Inc.,
Redding, California
The applicant requests a permit to
take (harass by survey, collect and
sacrifice voucher specimens) the
conservancy fairy shrimp (Branchinecta
conservatio), longhorn fairy shrimp
(Branchinecta longiantenna), Riverside
fairy shrimp (Streptocephalus wootoni),
and vernal pool tadpole shrimp
(Lepidurus packardi) in vernal pools
throughout the species’ range in
California to determine presence or
absence of the species for the purpose
of enhancing its survival.

Permit No. PRT–798015
Applicant: Mr. Michael Skenfield,
Murphys, California
The applicant requests a permit to
take (harass by survey, collect and
sacrifice voucher specimens) the
conservancy fairy shrimp (Branchinecta
conservatio), longhorn fairy shrimp
(Branchinecta longiantenna), and vernal
pool tadpole shrimp (Lepidurus
packardi) in vernal pools throughout
the species’ range in northern California
to determine presence or absence of the
species for the purpose of enhancing its
survival.

5945

231–6243. Please refer to the respective
permit number for each application
when requesting copies of documents.
[The following applicants have applied
for a permit to conduct certain activities
with endangered species. This notice is
provided pursuant to section 10(c) of
the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531, et seq.).]
Dated: January 20, 1995.
Thomas Dwyer,
Deputy Regional Director, Region 1, Portland,
Oregon.
[FR Doc. 95–2278 Filed 1–30–95; 8:45 am]
BILLING CODE 4310–55–P

Permit No. PRT–795931
Applicant: Biota Biological Consulting,
Sacramento, California
The applicant requests amendment of
their permit to include take (harass by
survey, collect and sacrifice) of the
conservancy fairy shrimp (Branchinecta
conservatio), longhorn fairy shrimp
(Branchinecta longiantenna), and
Riverside fairy shrimp (Streptocephalus
wootoni) in vernal pools throughout the
species’ range in California to determine
presence or absence of the species for
the purpose of enhancing its survival.
Permit No. PRT–798018
Applicant: Golden Gate Raptor
Observatory, San Francisco, California
The applicant requests a permit to
take (capture, band, and release) the
peregrine falcon (Falco peregrinus) in
the Golden Gate National Recreation
Area, Marin County, California for the
purpose of enhancing its survival.
DATES: Written comments on the permit
applications must be received on or
before March 2, 1995.
ADDRESSES: Written data or comments
should be submitted to the Chief,
Division of Consultation and
Conservation Planning, Ecological
Services, U.S. Fish and Wildlife Service,
911 N.E. 11th Avenue, Portland, Oregon
97232–4181. Please refer to the
respective permit number for each
application when submitting comments.
FOR FURTHER INFORMATION CONTACT:
Documents and other information
submitted with these applications are
available for review, subject to the
requirements of the Privacy Act and
Freedom of Information Act, by any
party who submits a written request for
a copy of such documents, within 30
days of the date of publication of this
notice, to the following office: U.S. Fish
and Wildlife Service, Ecological
Services, Division of Consultation and
Conservation Planning, 911 N.E. 11th
Avenue, Portland, Oregon 97232–4181.
Telephone: 503–231–2063; FAX: 503–

Availability of an Environmental
Assessment and Finding of No
Significant Impact, and Receipt of an
Application for an Incidental Take
Permit for La Costa Villages, Carlsbad,
CA
Fish and Wildlife Service,
Interior Department.
ACTION: Notice.
AGENCY:

Fieldstone/La Costa
Associates and the City of Carlsbad,
California (applicants) have applied for
an incidental take permit from the Fish
and Wildlife Service (Service) pursuant
to section 10(a)(1)(B) of the Endangered
Species Act of 1973 (Act), as amended.
The proposed permit would authorize
take of the threatened coastal California
gnatcatcher (Polioptila californica
californica) in San Diego County,
California, for a period of 30 years. The
proposed taking is incidental to planned
home and road construction on 1,940
acres of land primarily owned by
Fieldstone/La Costa Associates.
This notice advises the public that the
Service has re-opened the comment
period on the permit application and
the environmental assessment (EA). The
permit application includes a Habitat
Conservation Plan (HCP), two HCP
addendums, and an Implementing
Agreement (IA). The EA package
includes an EA, EA addendum, and a
draft Finding of No Significant Impact
(FONSI) which concludes that issuing
the incidental take permit is not a major
Federal action significantly affecting the
quality of the human environment,
within the meaning of section 102(2)(C)
of the National Environmental Policy
Act (NEPA) of 1969, as amended.
This notice is provided pursuant to
section 10(c) of the Act and NEPA
regulations (40 CFR 1506.6). The
Service will evaluate the application,
associated documents, and comments
submitted thereon to determine whether
the application meets the requirements
of NEPA regulations and section 10(a) of
SUMMARY:

5946

Federal Register / Vol. 60, No. 20 / Tuesday, January 31, 1995 / Notices

the Act. If it is determined that the
requirements are met, a permit will be
issued for the incidental take of the
coastal California gnatcatcher. The final
NEPA and permit determinations will
not be completed until after the end of
the 30-day comment period and will
fully consider all public comments
received during the comment period.
This notice supplements an earlier
notice published in the Federal Register
on October 28, 1994 (59 FR 54207). That
notice announced an initial 30-day
public comment period on the HCP, first
HCP addendum, and draft EA. The draft
EA was not available for public review
until two weeks into the initial 30-day
comment period. Subsequently, an
addendum to the draft EA, a second
addendum to the HCP, and an IA were
completed that include a description of
a change in mitigation for a portion of
the proposed project. Consequently, the
Service has re-opened the period for
public comment on the NEPA
documents and the complete
application package, as revised.
DATES: Written comments on the HCP,
HCP addendums, IA, EA, EA
addendum, and draft FONSI should be
received on or before March 2, 1995.
ADDRESSES: Comments should be
addressed to Mr. Gail Kobetich, Field
Supervisor, U.S. Fish and Wildlife
Service, 2730 Loker Avenue West,
Carlsbad, California 92008. Comments
may be sent by facsimile to telephone
(619) 431–9618. Please refer to permit
No. PRT–795759 when submitting
comments.
FOR FURTHER INFORMATION CONTACT: Gail
Kobetich (Field Supervisor) or Ken
Corey (Biologist) at the above address,
or telephone (619) 431–9440.
Individuals wishing copies of the
documents should immediately contact
Ken Corey. Documents also will be
available for public inspection, by
appointment, during normal business
hours at the above address.
SUPPLEMENTARY INFORMATION: Proposed
grading and construction activities
would directly impact 30 of 48 pairs of
the threatened coastal California
gnatcatcher (gnatcatcher) and 550 of
1,064 acres of suitable gnatcatcher
habitat on-site (506 of 944 acres of
coastal sage scrub and 44 of 120 acres
of southern maritime chaparral). In
addition, 254 of 307 acres of grassland
and 69 of 114 acres of riparian scrub/
woodland would be directly impacted
on-site. Approximately 18 pairs of
gnatcatchers, 438 acres of coastal sage
scrub, 76 acres of southern maritime
chaparral, and 173 acres of associated
habitats will be conserved and managed
on-site in perpetuity. In addition, the

applicants will provide $1,000,000 for
purchase of an off-site mitigation parcel,
within the City of Carlsbad, to be
approved by the Service.
The applicants have requested the
issuance of permits (immediately or
when a species is listed) under section
10(a) of the Act that would authorize
incidental take, in accordance with the
terms of the HCP, for up to 66 sensitive
species listed in the HCP. Of these
species, the coastal California
gnatcatcher is the only federally-listed
species observed on-site. Section 10(a)
permits are issued only for federallylisted species; however, unlisted species
that subsequently become listed, and are
adequately conserved by the original
HCP, can be added by permit
amendment.
A concern has been raised regarding
the consistency of the HCP with certain
subarea and subregional plans under the
statewide Natural Community
Conservation Planning program (NCCP)
(see 59 FR 54208). All interested
agencies, organizations, and individuals
are urged to provide comments on the
permit application, NEPA documents,
and the NCCP consistency issue. All
comments received by the closing date
will be considered in finalizing NEPA
compliance and permit issuance or
denial.
The Service will publish a record of
its final action in the Federal Register.
Dated: January 25, 1995.
Thomas J. Dwyer,
Deputy Regional Director, Region 1, Portland,
Oregon.
[FR Doc. 95–2279 Filed 1–30–95; 8:45 am]
BILLING CODE 4310–55–P

Preservation of the White House, 1100
Ohio Drive, SW., Washington, DC
20242.
Dated: January 18, 1995.
James I. McDaniel,
Executive Secretary, Committee for the
Preservation of the White House.
[FR Doc. 95–2256 Filed 1–30–95; 8:45 am]
BILLING CODE 4310–70–M

National Register of Historic Places;
Notification of Pending Nominations
Nominations for the following
properties being considered for listing
in the National Register were received
by the National Park Service before
January 21, 1995. Pursuant to § 60.13 of
36 CFR part 60 written comments
concerning the significance of these
properties under the National Register
criteria for evaluation may be forwarded
to the National Register, National Park
Service, P.O. Box 37127, Washington,
D.C. 20013–7127. Written comments
should be submitted by February 15,
1995.
Carol D. Shull,
Chief of Registration, National Register.
ALABAMA
Jefferson County
Arlington Park, 800–840 First St. W., 815–
909 Second St. W. and 100–269 Munger
Ave., Birmingham, 95000097
Lauderdale County
Seminary—O’Neal Historic District, Roughly,
Seminary St. between Hermitage Dr. and
Irvine Ave. and Irvine between Seminary
and Wood Ave., Florence, 95000092
DELAWARE

National Park Service

New Castle County

Committee for the Preservation of the
White House; Meeting

Merestone, 1610–1620 Yeatman’s Mill Rd.,
Mill Creek Hundred (Delaware); Yeatman’s
Station Rd., New Garden Township
(Pennsylvania), Newark vicinity, 95000093

In compliance with the Federal
Advisory Committee Act, notice is
hereby given of a meeting of the
Committee for the Preservation of the
White House. The meeting will be held
at the Department of Commerce,
Washington, DC at 1 p.m., Friday,
February 17,1995. It is expected that the
agenda will include policies, goals and
long range plans. The meeting will be
open, but subject to appointment and
security clearance requirements,
including clearance information by
February 10, 1995.
Inquiries may be made by calling the
Committee for the Preservation of the
White House between 9 a.m. and 4 p.m.,
weekdays at (202) 619–6344. Written
comments may be sent to the Executive
Secretary, Committee for the

IOWA
Humboldt County
Renwick Generating Plant, 103 N. Field St.,
Renwick, 95000099
Jackson County
Chicago, Milwaukee & St. Paul Narrow Gauge
Depot—LaMotte (Advent & Development of
Railroads in Iowa MPS), Market St.,
LaMotte, 95000105
Polk County
Camp Dodge Pool District, Buildings A22–
A24, Camp Dodge, Johnston, 95000098
LOUISIANA
Terrebonne Parish
Cook, Herman Albert, House, 515 W. Main
St., Houma, 95000107

Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Notices
Sec. 21;
Sec. 28;
Sec. 29, N1⁄2, NE1⁄4SW1⁄4, NE1⁄4NW1⁄4SW1⁄4,
S1⁄2NW1⁄4SW1⁄4, S1⁄2SW1⁄4, and SE1⁄4;
Sec. 30, lots 1, 4, and 6, N1⁄2NE1⁄4,
E1⁄2W1⁄2SW1⁄4NE1⁄4, E1⁄2SW1⁄4NE1⁄4,
W1⁄2SE1⁄4NE, NE1⁄4NW1⁄4, S1⁄2NE1⁄4SW1⁄4,
SE1⁄4SW1⁄4, W1⁄2NE1⁄4SE1⁄4,
SE1⁄4NE1⁄4SE1⁄4, NW1⁄4SE1⁄4, and
S1⁄2SE1⁄4;
Sec. 31, lots 1 to 4 inclusive, E1⁄2, and
E1⁄2W1⁄2;
Sec. 32;
Sec. 33.
T. 30 S., R. 38 E.,
All of the following land lying north of the
northern right-of-way boundary of the
highway known as the Redrock Randsburg
Road:
Sec. 4, lot 2 of NE1⁄4, and E1⁄2 lot 2 of
NW1⁄4.
Sec. 6, lot 1 of NE1⁄4, lot 1 of NW1⁄4, lot 2
of NE1⁄4, lot 2 of NW1⁄4, lot 1 of SW1⁄4,
lot 2 of SW1⁄4, and SE1⁄4.
The area within the withdrawal contains
approximately 16,560 acres.

Congress has mandated all the public
lands described above be conveyed to
the State of California, subject to valid
existing rights, for inclusion in Red
Rock Canyon State Park (California
Desert Protection Act, 108 Stat. 4471,
sec. 701.) The purpose of the proposed
withdrawal is to protect the park values
of this designated area until the lands
can be conveyed to the State of
California pursuant to the
aforementioned act.
For a period of 90 days from the date
of publication of this notice, all persons
who wish to submit comments,
suggestions, or objections in connection
with the proposed withdrawal may
present their views in writing to the
California State Director of the Bureau
of Land Management.
A public meeting is required to be
held regarding the proposed
withdrawal. Upon determination by the
authorized officer of the location and
date of the meeting, a notice of time and
place will be published in the Federal
Register and in a local newspaper at
least 30 days before the scheduled date
of the meeting.
The application will be processed in
accordance with the regulations set
forth in 43 CFR 2300. Records relating
to the application are available for
examination in the BLM Public Room,
2800 Cottage Way, Sacramento, CA
95825.
For a period of 2 years from the date
of publication of this notice in the
Federal Register, the lands will be
segregated as specified above unless the
application is denied or canceled or the
withdrawal is approved prior to that
date.
The temporary uses which will be
permitted during this segregative period

are land uses consistent with the
California Desert Conservation Area
Plan and permitted by the
Memorandum of Understanding
between the Bureau of Land
Management and the California
Department of Parks and Recreation.
Existing rights are not affected by this
action.
David M. McIlnay
Chief, Branch of Lands
[FR Doc. 95–12205 Filed 5–17–95; 8:45 am]
BILLING CODE 4310–40–P

26737

Arlington Square, U.S. Fish and
Wildlife Service, Washington, D.C.
20240.
Dated: April 14, 1995.
John J. Doggett,
Acting Assistant Director—Refuges and
Wildlife.
[FR Doc. 95–12224 Filed 5–17–95; 8:45 am]
BILLING CODE 4310–55–M

Endangered and Threatened Species
Permit Application
Fish and Wildlife, Interior.
Notice of document availability;
request for comments.
AGENCY:

Fish and Wildlife Service
Information Collection Submitted to
the Office of Management and Budget
for Review Under the Paperwork
Reduction Act
The proposal for the collection of
information listed below has been
submitted to the Office of Management
and Budget (OMB) for reinstatement
approval under the provisions of the
Paperwork Reduction Act (44 U.S.C.
Chapter 35). Copies of the proposed
information collection requirement and
related forms and explanatory material
may be obtained by contacting the
Service’s clearance officer at the phone
number listed below. Comments and
suggestions on the requirement should
be made directly to the Service
Clearance Officer and the Office of
Management and Budget, Paperwork
Reduction Project (1018–0009)
Washington, D.C. 20503, telephone 202–
395–7340.
Title: Woodcock Wing Collection
Envelope
OMB Approval Number: 1018–0009
Abstract: The Migratory Bird Treaty
Act authorizes and directs the Secretary
of the Interior to determine to what
extent migratory game birds may be
hunted. For several species of game
birds, including the woodcock, this
determination is based primarily on
biological information gathered through
surveys. Survey cooperators provide
data on their harvests and hunting
activities, and from each bird taken,
they submit one wing for certain
biological determinations.
Service Form Number: 3–156A.
Frequency: On occasion.
Description of Respondents:
Individuals and households.
Completion Time: The overall
reporting burden is estimated to average
4 minutes per response with a response
rate average of 5 responses per
respondent.
Annual Responses: 2,000.
Annual Burden Hours: 670.
Service Clearance Officer: Phyllis H.
Cook, 703–358–1943 Mail Stop—224

ACTION:

Availability of an Environmental
Assessment and Receipt of an
Application for a Permit to Allow
Incidental Take of Threatened and
Endangered Species by Murray Pacific
Corporation on its Mineral Tree Farm in
Lewis County, Washington.
SUMMARY: This notice advises the public
that Murray Pacific Corporation
(Applicant) has applied to the U.S. Fish
and Wildlife Service (FWS) for an
incidental take permit pursuant to
section 10(a)(1)(B) of the Endangered
Species Act of 1973, as amended (Act).
The Applicant has requested the permit
as an amendment to their existing
permit (PRT–777837) authorizing
incidental take of the northern spotted
owl, which was issued on September
24, 1993, and have amended their
existing Habitat Conservation Plan
(HCP). The application has been
assigned permit number PRT–777837.
The Applicant has also requested to
enter into a consensual agreement with
the U.S. National Marine Fisheries
Service (NMFS) to address the needs of
anadromous salmonids being
considered for listing under the Act, and
with the FWS to conserve other fish and
wildlife species which may be
associated with habitats on their
Mineral Tree Farm in Lewis County,
Washington (Tree Farm). The requested
permit would authorize the incidental
take of all species presently listed under
the Act, that may occur on the
Applicant’s Tree Farm. The proposed
incidental take would occur as a result
of timber harvest activities in the
various habitat types that occur now,
and will occur on the Tree Farm during
the term of the proposed permit. The
HCP Amendment includes an agreement
for the issuance of additional permits
for the incidental take of species not
presently listed under the Act, but
which may become listed during the
term of the proposed permit, and which
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
announce the availability of an
Environmental Assessment (EA) for the
proposed issuance of the incidental take
permit and signing of the agreement.
The FWS is taking administrative
responsibility for announcing the
availability of the aforementioned
documents. This notice is provided
pursuant to section 10(c) of the Act and
National Environmental Policy Act
regulations (40 CFR 1506.6).
DATES: Written comments on the permit
application and EA should be received
on or before June 19, 1995.
ADDRESSES: Comments regarding the
application or EA should be addressed
to Mr. Curt Smitch, Assistant Regional
Director, U.S. Fish and Wildlife Service,
3773 Martin Way East, Building C—
Suite 101, Olympia, Washington 98501.
Please refer to permit No. PRT–777837
when submitting comments. Individuals
wishing copies of the application or EA
for review should immediately contact
the above office (360–534–9330).
FOR FURTHER INFORMATION CONTACT:
Craig Hansen, U.S. Fish and Wildlife
Service, 3773 Martin Way East, Building
C- Suite 101, Olympia, WA., 98501;
(360) 412–5465. Steve Landino,
National Marine Fisheries Service, 3773
Martin Way East, Building C- Suite 101,
Olympia, WA., 98501; (360) 412–5469.
SUPPLEMENTARY INFORMATION:

Background
Under section 9 of the Act and its
implementing regulations, ‘‘taking’’ of a
threatened or endangered species, is
prohibited. However, the FWS and
NMFS, under limited circumstances,
may issue permits to take threatened
and endangered wildlife species if such
taking is incidental to, and not the
purpose of, otherwise lawful activities.
Regulations governing permits for
threatened species are in 50 CFR 17.32
and in 50 CFR 17.22 for endangered
species.
The Applicant proposes to implement
an amendment to their HCP for the
northern spotted owl that will allow
timber harvest on portions of
approximately 55,000 acres of their Tree
Farm. The Applicant’s proposed timber
harvest may result in the take, as
defined in the Act and its implementing
regulations, of listed species. The HCP
and permit would be in effect through
the year 2094. The application includes
an amended HCP and Implementation
Agreement.
The Applicant proposes to mitigate
for the incidental take of all listed
species by maintaining at least 10
percent of the Tree Farm in nonharvestable reserves for the term of the

permit. Reserves would be established
during a Watershed Analysis process
which the Applicant would complete by
2004. The expected result of Watershed
Analysis would place a majority of the
reserves in riparian zones. In addition,
the Applicant would be committed to a
variety of special measures intended to
mitigate and minimize impacts to the
habitat types which occur on the Tree
Farm, and specific State and Federal
species of concern including the grizzly
bear, gray wolf, bald and golden eagles,
goshawk, Larch Mountain salamander,
Townsend’s big-eared bat, long-legged
myotis (bat), and others. The Applicant
also proposes to mitigate for impacts to
anadromous salmonids through habitat
conservation measures for these species.
The EA considers the environmental
consequences of 5 alternatives,
including the proposed action and noaction alternatives. The proposed action
alternative is the issuance of a permit
under section 10(a) of the Act that
would authorize incidental take of all
listed species, and signing of the
agreement for currently unlisted
species, that may occur in the habitats
on the Applicant’s Tree Farm. The
proposed action would require the
Applicant to implement their amended
Habitat Conservation Plan. Under the
no-action alternative, the Applicant
would continue to implement their
existing northern spotted owl HCP, and
additional incidental take permits
would not be issued. The third
alternative is to maintain approximately
29 percent of the Tree Farm in reserves
generated according to Watershed
Analysis prescriptions. The fourth
alternative is to maintain reserves on
about 17 percent of the Tree Farm, and
would allow the Applicant to harvest
timber on a limited basis in the outer
half of riparian reserves. The fifth
alternative would place about 5 percent
of the Tree Farm in riparian reserves
with additional protection on steep
slopes with wet talus habitat, the
Applicant would commit to and
complete further Watershed Analysis by
the year 2004, and the Applicant would
retain all live conifer and conifer snags
greater than 40 inches in diameter at
breast height.
Dated: May 12, 1995.
Thomas Dwyer,
Deputy Regional Director, Region 1, Fish and
Wildlife Service, Portland, Oregon.
[FR Doc. 95–12204 Filed 5–17–95; 8:45 am]
BILLING CODE 4310–55–P

National Park Service
National Capital Memorial
Commission; Public Meeting
Notice is hereby given in accordance
with the Federal Advisory Committee
Act that a meeting of the National
Capital Memorial Commission will be
held on Tuesday, June 20, 1995, at 1
p.m., at the National Building Museum,
Room 312, 5th and F Streets, NW.
The Commission was established by
Public Law 99–652, the Commemorative
Works Act, for the purpose of preparing
and recommending to the Secretary of
the Interior, Administrator, General
Services Administration, and Members
of Congress broad criteria, guidelines,
and policies for memorializing persons
and events on Federal lands in the
National Capital Region (as defined in
the National Capital Planning Act of
1952, as amended), through the media
of monuments, memorials and statues. It
is to examine each memorial proposal
for adequacy and appropriateness, make
recommendations to the Secretary and
Administrator, and to serve as
information focal point for those
persons seeking to erect memorials on
Federal land in the National Capital
Region.
The members of the Commission are
as follows:
Director, National Park Service
Chairman, National Capital Planning
Commission
The Architect of the Capitol
Chairman, American Battle Monuments
Commission
Chairman, Commission of Fine Arts
Mayor of the District of Columbia
Administrator, General Services
Administration
Secretary of Defense
The purpose of the meeting will be to
consider sites for the World War II
Memorial. The meeting will be open to
the public. Any person may file with the
Commission a written statement
concerning the matters to be discussed.
Persons who wish to file a written
statement or testify at the meeting or
who want further information
concerning the meeting may contact the
Commission at 202–619–7097. Minutes
of the meeting will be available for
public inspection 4 weeks after the
meeting at the Office of Land Use
Coordination, National Capital Region,
1100 Ohio Drive, SW., Room 201,
Washington, D.C., 20242.
Dated: May 11, 1995.
Robert Stanton,
Regional Director, National Capital Region.
[FR Doc. 95–12260 Filed 5–17–95; 8:45 am]
BILLING CODE 4310–70–M

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Federal Register / Vol. 60, No. 111 / Friday, June 9, 1995 / Notices

boundary and subdivisional lines, and
the survey of the centerline of the May
to Patterson Road and Lot 2 in section
32, T. 15 N., R. 22 E., Boise Meridian,
Idaho, Group No. 887, was accepted,
May 24, 1995.
This survey was executed to meet
certain administrative needs of the
Bureau of Land Management.
All inquiries concerning the survey of
the above described land must be sent
to the Chief, Branch of Cadastral Survey,
Idaho State Office, Bureau of Land
Management, 3380 Americana Terrace,
Boise, Idaho, 83706.
Dated: May 31, 1995.
Duane E. Olsen,
Chief Cadastral Surveyor for Idaho.
[FR Doc. 95–14109 Filed 6–8–95; 8:45 am]
BILLING CODE 4310–GG–M

Fish and Wildlife Service
Information Collection Submitted to
the Office of Management and Budget
for Review Under the Paperwork
Reduction Act
The proposal for the collection of
information listed below has been
submitted to the Office of Management
and Budget (OMB) for reinstatement
approval under the provisions of the
Paperwork Reduction Act (44 U.S.C.
Chapter 35). Copies of the proposed
information collection requirement and
related forms and explanatory material
may be obtained by contacting the
Service’s clearance officer at the phone
number listed below. Comments and
suggestions on the requirement should
be made directly to the Service
Clearance Officer and the Office of
Management and Budget, Paperwork
Reduction Project (1018–0066)
Washington, D.C. 20503, telephone 202–
395–7340.
Title: Marking, Tagging and Reporting
Regulations for Polar Bear, Sea Otter
and Walrus.
OMB Approval Number: 1018–0066.
Abstract: The Marine Mammal
Protection Act of 1972, (Act) as
amended, authorized the Secretary of
the Interior to prescribe marking,
tagging and reporting regulations in 50
CFR 18.23(f), for Alaska Natives
harvesting polar bear, seat otter, and
walrus. Under the Act Alaska Natives
residing in Alaska and dwelling on the
coast of the North Pacific or arctic
Oceans may harvest these species for
subsistence or handicraft purposes. The
marking and tagging program is
intended to gather reports of all kills
made, and to tag or mark, as
appropriate, skins, skulls and tusks of
marine mammals killed to reduce illegal

trading in walrus ivory, polar pear and
sea otter skins. The information
collected is used by the Fish and
Wildlife Service to improve its decisionmaking ability by substantially
expanding the quality and quantity of
harvest and biological data upon which
future management decisions can be
based. It provides the Service with the
ability to make inferences about the
condition and general health of the
populations and to consider the
importance and impact to these
populations from such processes as
development activities and habitat
degradation.
Service Form Number(s): R7–50
(Walrus Certificate); R7–51 (Polar Bear
Certificate); R7–52 (Sea Otter Certificate)
Frequency: On occasion.
Description of Respondents:
Individuals and household.
Completion Time: The reporting
burden is estimated to average 15
minutes per respondent; respondents
will average 1.46 responses per year.
Annual Responses: 2,925.
Annual Burden Hours: 732.
Service Clearance Officer: Phyllis H.
Cook, 703–358–1943, Mail Stop—224
Arlington Square, U.S. Fish and
Wildlife Service, Washington, D.C.
20240.
Dated May 22, 1995.
Rowan W. Gould,
Acting Assistant Director—Fisheries.
[FR Doc. 95–14087 Filed 6–8–95; 8:45 am]
BILLING CODE 4310–55–M

Endangered and Threatened Species
Permit Application
Fish and Wildlife, Interior.
Notice of availability of the
Final Environmental Impact Statement
(EIS) on the Proposed Issuance of an
Incidental Take Permit for Desert
Tortoises in Clark County, Nevada.
AGENCY:
ACTION:

This notice advises the public
that the Final Environmental Impact
Statement (EIS) on the proposed
issuance of an incidental take permit for
desert tortoises in Clark County, Nevada
is available. The Record of Decision will
be published no sooner than 30 days
from this notice.
FOR FURTHER INFORMATION CONTACT:
Dolores Savignano, U.S. Fish and
Wildlife Service, 1500 North Decatur
Boulevard, #01, Las Vegas, Nevada
89108 or Carlos Mendoza, U.S. Fish and
Wildlife Service, 4600 Kietzke Lane,
Building C, Room 125, Reno, Nevada
89502.
Individuals wishing copies of this
Final EIS should immediately contact
Christine Robinson, Clark County
SUMMARY:

Manager’s Office, 225 Bridger Avenue,
Las Vegas, Nevada 89155. Copies of the
Final EIS have been sent to all agencies
and individuals who previously
received copies of the Draft EIS and to
all others who have already requested
copies.
SUPPLEMENTARY INFORMATION:

A. Background
On April 2, 1990, the U.S. Fish and
Wildlife Service (Service) issued a final
rule (55 FR 12178) that determined the
desert tortoise to be a threatened species
under the Endangered Species Act of
1973, as amended (Act). That regulation
became effective on the date of its
publication in the Federal Register.
Because of its listing as a threatened
species, the desert tortoise is protected
by the Act’s prohibition against
‘‘taking.’’ The Act defines ‘‘take’’ to
mean: to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture or
collect, or to attempt to engage in such
conduct. ‘‘Harm’’ is further defined by
regulation as any act that kills or injures
wildlife including 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).
The Service, however, may issue
permits to carry out otherwise lawful
activities involving take of endangered
and threatened wildlife under certain
circumstances. Regulations governing
permits are in 50 CFR 17.22, 17.23, and
17.32. For threatened species, such
permits are available for scientific
purposes, enhancing the propagation or
survival of the species, economic
hardship, zoological exhibition or
educational purposes, incidental taking,
or special purposes consistent with the
purposes of the Act.
Clark County; the cities of Las Vegas,
North Las Vegas, Henderson, Mesquite,
and Boulder City; and Nevada
Department of Transportation (NDOT)
(Applicants) submitted an application to
the Service for a permit to incidentally
take desert tortoises (Gopherus
agassizii), pursuant to section
10(a)(1)(B) of the Act, in association
with various proposed public and
private projects in Clark County,
Nevada. The proposed permit would
allow incidental take of desert tortoises
for a period of 30 years, resulting from
development on up to 113,900 acres of
private lands within Clark County,
Nevada. The permit application was
received September 28, 1994, and was
accompanied by the Clark County
Desert Conservation Plan (CCDCP),
which serves as the Applicant’s habitat

Federal Register / Vol. 60, No. 111 / Friday, June 9, 1995 / Notices
conservation plan and details their
proposed measures to minimize,
monitor, and mitigate the impacts of the
proposed take on the desert tortoise.
The Applicants propose to expend
$1.35 million per year, and up to $1.65
million per year for the first 10 years, to
minimize and mitigate the potential loss
of desert tortoise habitat. It is
anticipated that the majority of these
funds will be used to implement
mitigation measures as described in the
CCDCP. In addition, funds will be
provided to State and Federal resource
managers for implementing desert
tortoise recovery measures
recommended in the Desert Tortoise
(Mojave Population) Recovery Plan, and
for planning and managing lands both
within and outside of desert wildlife
management areas. The desert tortoise is
only part of the desert ecosystem, and
unless the various species of plants and
animals which co-inhabit that system
are likewise preserved, the status of the
desert tortoise is likely to decline.
Therefore, the needs of other plant and
wildlife resources will be addressed,
possibly avoiding the need to list these
species as threatened or endangered
under the Act in the future. The
Applicants also propose to purchase a
conservation easement that preserves,
protects, and assures the management
and study of the conservation values,
and in particular the habitat of the
desert tortoise, of more than 85,000
acres of non-Federal land in Clark
County.
To minimize the impacts of take, the
Applicants propose to provide a free
pick-up and collection service for desert
tortoises encountered in harm’s way
within Clark County. These desert
tortoises will be made available for
beneficial uses such as translocation
studies and programs, research,
education, zoos, museums, or other
programs approved by the Service and
Nevada Division of Wildlife. Sick or
injured desert tortoises will be
humanely euthanized. NDOT will
incorporate specific measures into its
operations to avoid or minimize impacts
to desert tortoises. Clark County will
also implement a public information
and education program to benefit the
desert tortoise and the desert ecosystem.
Clark County or the cities would
approve the issuance of land
development permits for otherwise
lawful public and private project
proponents during the 30-year period in
which the proposed Federal permit
would be in effect. Clark County or the
cities would impose, and NDOT would
pay, a fee of $550 per acre of habitat
disturbance to fund the measures to

minimize and mitigate the impacts of
the proposed action on desert tortoises.
The underlying purpose or goal of the
proposed action is to develop a program
designed to ensure the continued
existence of the species, while resolving
potential conflicts that may arise from
otherwise lawful private and public
improvement projects.
B. Development of the Final EIS
This Final EIS has been developed by
the U.S. Fish and Wildlife Service. In
the development of this Final EIS, the
Service initiated action to assure
compliance with the purpose and intent
of the National Environmental Policy
Act of 1969, as amended (NEPA).
Scoping activities were undertaken
preparatory to developing a Draft EIS
with a variety of Federal, State, and
local entities. A Notice of Intent to
prepare a Draft EIS was published
February 4, 1994 (59 FR 5439); a public
scoping meeting was held February 14,
1994; and a Notice of Availability of a
Draft EIS and Receipt of an Application
for an Incidental Take Permit for Desert
Tortoises in Clark County, Nevada was
published February 10, 1995 (60 FR
8058).
Potential consequences, in terms of
adverse impacts and benefits associated
with the implementation of each
alternative selected for detailed
analysis, were described in the Draft
EIS. The Service received 13 letters of
comment on the Draft EIS which
focused on the following subject areas:
(1) Survey and removal of desert
tortoises; (2) translocation of tortoises to
a sanctuary; (3) euthanasia of tortoises;
(4) measurable criteria for short-term
and long-term conservation goals; (5)
tortoise adoption; (6) effects to other
species and resources; and (7) financing
implementation of the CCDCP.
Appendix A of the Final EIS contains
copies of all comments received and
responses to all comments received. The
Final EIS was revised where appropriate
based on public comment and review.
Issues and potential consequences have
remained identical from the draft to the
final EIS.
C. Alternatives Analyzed in the Final
EIS
Two alternatives were considered.
Issuance of the permit with the
mitigating, minimizing, and monitoring
measures outlined in the CCDCP is the
Service’s preferred action and is
discussed above. The Draft EIS outlined
alternative measures that were
considered by the Service prior to
issuance of the permit. The other
alternative selected for detailed
evaluation was a No Action alternative.

30581

The No Action alternative would benefit
individual desert tortoises on private
lands in the short-term, however, it has
been determined that viable populations
of desert tortoises will not persist in the
urban areas over the long-term. The No
Action alternative would, therefore, not
provide the benefits of the long-term
recovery efforts for the desert tortoise
identified in the CCDCP. The No Action
alternative was not identified as the
preferred alternative because it would
diffuse existing regional conservation
planning efforts for the desert tortoise
and possibly concentrate activity on
individual project needs, not meet the
purpose and needs of the Applicants,
and not provide the long-term benefits
to the desert tortoise. Additionally, the
No Action alternative could result in
adverse impacts to the social
environment within Clark County due
to constraints on land-use activities that
would impact the desert tortoise.
Dated: June 1, 1995.
Thomas Dwyer,
Deputy Regional Director.
[FR Doc. 95–13901 Filed 6–8–95; 8:45 am]
BILLING CODE 4310–55–P

Finding of No Significant Impact for
Incidental Take Permits for the
Construction of Single-Family
Residences at the Specific Site
Locations Indicated Below in Travis
County, Texas
Fish and Wildlife Service,
Interior.
ACTION: Notice.
AGENCY:

The U.S. Fish and Wildlife
Service (Service) has prepared an
Environmental Assessment for issuance
of a Section 10(a)(1)(B) permit for the
incidental take of the federally
endangered golden-cheeked warbler
(Dendroica chrysoparia) during the
construction and operation of singlefamily residences in Travis County,
Texas.
SUMMARY:

Proposed Action
The proposed action is the issuance of
permits under Section 10(a)(1)(B) of the
Endangered Species Act to authorize the
incidental take of the golden-cheeked
warbler.
The Applicant (Steven G. Madere)
plans to construct a single-family
residence at the specific site indicated
as Lot 22, Block H, Long Canyon Phase
IIA, aka 9000 Bell Mountain Drive,
Austin, Travis County, Texas (PRT–
799859).
The Applicant (Larry Michael
Beasley) plans to construct a singlefamily residence at the specific site

57722

Federal Register / Vol. 60, No. 222 / Friday, November 17, 1995 / Notices

approximate time required to make their
comments.
Open committee discussion. The
committee will discuss data relevant to
the new drug application (NDA) 20–569
ganciclovir intravitreal implant
(Vitrasert Sterile Intravitreal Implant,
Chiron Vision Corp.) for treatment of
cytomegalovirus retinitis. The
committee will also discuss data
relevant to NDA 20–597 latanoprost
(XalatanTM Sterile Ophthalmic Solution,
Pharmacia, Inc.) a topical ophthalmic
drug indicated for the reduction of
elevated intraocular pressure in patients
with open-angle glaucoma and ocular
hypertension.
FDA public advisory committee
meetings may have as many as four
separable portions: (1) An open public
hearing, (2) an open committee
discussion, (3) a closed presentation of
data, and (4) a closed committee
deliberation. Every advisory committee
meeting shall have an open public
hearing portion. Whether or not it also
includes any of the other three portions
will depend upon the specific meeting
involved. There are no closed portions
for the meetings announced in this
notice. The dates and times reserved for
the open portions of each committee
meeting are listed above.
The open public hearing portion of
each meeting shall be at least 1 hour
long unless public participation does
not last that long. It is emphasized,
however, that the 1 hour time limit for
an open public hearing represents a
minimum rather than a maximum time
for public participation, and an open
public hearing may last for whatever
longer period the committee
chairperson determines will facilitate
the committee’s work.
Public hearings are subject to FDA’s
guideline (subpart C of 21 CFR part 10)
concerning the policy and procedures
for electronic media coverage of FDA’s
public administrative proceedings,
including hearings before public
advisory committees under 21 CFR part
14. Under 21 CFR 10.205,
representatives of the electronic media
may be permitted, subject to certain
limitations, to videotape, film, or
otherwise record FDA’s public
administrative proceedings, including
presentations by participants.
Meetings of advisory committees shall
be conducted, insofar as is practical, in
accordance with the agenda published
in this Federal Register notice. Changes
in the agenda will be announced at the
beginning of the open portion of a
meeting.
Any interested person who wishes to
be assured of the right to make an oral
presentation at the open public hearing

portion of a meeting shall inform the
contact person listed above, either orally
or in writing, prior to the meeting. Any
person attending the hearing who does
not in advance of the meeting request an
opportunity to speak will be allowed to
make an oral presentation at the
hearing’s conclusion, if time permits, at
the chairperson’s discretion.
The agenda, the questions to be
addressed by the committee, and a
current list of committee members will
be available at the meeting location on
the day of the meeting.
Transcripts of the open portion of the
meeting may be requested in writing
from the Freedom of Information Office
(HFI–35), Food and Drug
Administration, rm. 12A–16, 5600
Fishers Lane, Rockville, MD 20857,
approximately 15 working days after the
meeting, at a cost of 10 cents per page.
The transcript may be viewed at the
Dockets Management Branch (HFA–
305), Food and Drug Administration,
rm. 1–23, 12420 Parklawn Dr.,
Rockville, MD 20857, approximately 15
working days after the meeting, between
the hours of 9 a.m. and 4 p.m., Monday
through Friday. Summary minutes of
the open portion of the meeting may be
requested in writing from the Freedom
of Information Office (address above)
beginning approximately 90 days after
the meeting.
This notice is issued under section
10(a)(1) and (2) of the Federal Advisory
Committee Act (5 U.S.C. app. 2), and
FDA’s regulations (21 CFR part 14) on
advisory committees.
Dated: November 13, 1995.
David A. Kessler,
Commissioner of Food and Drugs.
[FR Doc. 95–28366 Filed 11–16–95; 8:45 am]
BILLING CODE 4160–01–F

DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
Office of the Assistant Secretary for
Community Planning and
Development
[Docket No. FR–3778–N–63]

Federal Property Suitable as Facilities
To Assist the Homeless
Office of the Assistant
Secretary for Community Planning and
Development, HUD.
ACTION: Notice.
AGENCY:

This Notice identifies
unutilized, underutilized, excess, and
surplus Federal property reviewed by
HUD for suitability for possible use to
assist the homeless.
SUMMARY:

EFFECTIVE DATE:

November 17, 1995.

FOR FURTHER INFORMATION CONTACT:

Mark Johnston, Department of Housing
and Urban Development, Room 7256,
451 Seventh Street SW., Washington,
DC 20410; telephone (202) 708–1226;
TDD number for the hearing- and
speech-impaired (202) 708-2565, (these
telephone numbers are not toll-free), or
call the toll-free Title V information line
at 1–800–927–7588.
SUPPLEMENTARY INFORMATION: In
accordance with the December 12, 1988
court order in National Coalition for the
Homeless v. Veterans Administration,
No. 88–2503–OG (D.D.C.), HUD
publishes a Notice, on a weekly basis,
identifying unutilized, underutilized,
excess and surplus Federal buildings
and real property that HUD has
reviewed for suitability for use to assist
the homeless. Today’s Notice is for the
purpose of announcing that no
additional properties have been
determined suitable or unsuitable this
week.
Dated: November 9, 1995.
Jacquie M. Lawing,
Deputy Assistant Secretary for Economic
Development.
[FR Doc. 95–2828 Filed 11–16–95; 8:45 am]
BILLING CODE 4210–29–M

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Availability of a Draft Environmental
Impact Statement and Receipt of an
Application for the Proposed Issuance
of a Permit To Allow Incidental Take of
Threatened and Endangered Species
on Plum Creek Timber Company, L.P.,
Lands in the I–90 Corridor, King and
Kittitas Counties, WA
Fish and Wildlife Service,
Interior.
ACTION: Notice of document availability;
request for comments.
AGENCY:

This notice advises the public
that Plum Creek Timber Company, L.P.
(Applicant) has applied to the U.S. Fish
and Wildlife Service and the National
Marine Fisheries Service (together
Services) for an incidental take permit
pursuant to section 10(a)(1)(B) of the
Endangered Species Act of 1973, as
amended (Act). The Applicant has also
requested unlisted-species and safeharbor provisions in an Implementation
Agreement (Agreement) to cover
vertebrate species which may be found
in the planning area. The application
has been assigned permit number PRT–
808398. The requested permit would
SUMMARY:

Federal Register / Vol. 60, No. 222 / Friday, November 17, 1995 / Notices
authorize incidental take of currently
listed threatened or endangered species
that may occur within the planning area
in King and Kittitas Counties,
Washington, as a result of the
Applicant’s timber management
activities. The unlisted-species
provision provides for the issuance of
further permits for the incidental take of
species not presently listed under the
Act, but which might become listed
during the term of the proposed permit,
and which might occur within the
planning area.
The Services also announce the
availability of a Draft Environmental
Impact Statement (DEIS) for the
proposed issuance of the incidental take
permit and approval of the Agreement.
All comments received will become part
of the public record and may be
released. This notice is provided
pursuant to section 10(c) of the Act and
National Environmental Policy Act
regulations (40 CFR 1506.6).
DATES: Written comments on the permit
application and DEIS should be
received on or before January 7, 1996.
ADDRESSES: Comments regarding the
application or DEIS, or requests for
those documents, should be addressed
to William Vogel, U.S. Fish and Wildlife
Service, Pacific Northwest Habitat
Conservation Plan Program, 3773 Martin
Way East, Building C—Suite 101,
Olympia, Washington 98501; (360) 534–
9330. Please refer to permit No. PRT–
808398 when submitting comments.
Individuals wishing copies of the
documents for review should
immediately contact the office listed
above. Copies of the documents are also
available at the following libraries:
Wenatchee Public Library, Attention:
Joy, 310 Douglas Street, Wenatchee,
Washington 98801
University of Washington Library,
Attention: Carolyn Aamot,
Government Publications Department,
170 Suzzallo Library, Seattle,
Washington 98195–2900
Seattle Public Library, Attention:
Jeanette Voiland, Government
Publications Department, 1000 Fourth
Avenue, Seattle, Washington 98104
Evergreen State College, Attention: Lee
Lyttle, Library Campus Parkway—
L23100H, Olympia, Washington
98505
Central Washington University,
Attention: Dr. Patrick McLaughlin,
Library Collection Development,
Ellensburg, Washington 98926
King County Library System, Attention:
Cheryl Standley, Documents
Department, 1111 110th Avenue
Northeast, Bellevue, Washington
98004

FOR FURTHER INFORMATION CONTACT:
William Vogel, U.S. Fish and Wildlife
Service, or Steve Landino, National
Marine Fisheries Service, at the office
listed above.
SUPPLEMENTARY INFORMATION:

Background
Under section 9 of the Act and its
implementing regulations, ‘‘taking’’ of
threatened and endangered species is
prohibited. However, the Service, under
limited circumstances, may issue
permits to take threatened or
endangered wildlife species if such
taking is incidental to, and not the
purpose of, otherwise lawful activities.
Regulations governing permits for
threatened and endangered species are
in 50 CFR 17.32 and 17.22.
The permit application includes a
Habitat Conservation Plan (HCP) and
the Agreement. In the HCP, the
Applicant has addressed species
conservation and ecosystem
management on approximately 170,000
acres of its private land in the Cascade
Mountains of Washington. The
Applicant’s ownership occurs in a
‘‘checkerboard’’ pattern in an area
commonly referred to as the I–90
Corridor. The term ‘‘checkerboard’’
refers to alternate sections of public and
private land. The ‘‘checkerboard’’ HCP
planning area is approximately 419,000
acres in size. The term of the proposed
permit is 50 years from the date of
issuance, with a possible extension of
an additional 50 years for safe-harbor
provision purposes.
The Applicant is requesting a permit
for the incidental take of northern
spotted owls (Strix occidentalis caurina)
(owls) which may occur as a result of
timber harvest and related activities
within a portion of the owl sites present
on the Applicant’s property. There are
currently more than 100 owl sites that
impact operations within the planning
area. The Applicant plans to avoid the
take of marbled murrelets
(Brachyramphus marmoratus
marmoratus), but has included
murrelets in the incidental take permit
application in case some incidental take
occurs. The Applicant has also included
grizzly bears (Ursus arctos = U.a.
horribilis) and gray wolves (Canis
lupus) in the permit application to cover
the circumstance where these species
may occur on the subject property in the
future and may at some point be subject
to take. The Applicant has addressed
numerous other species in their HCP
and is requesting the unlisted-species
and safe-harbor provisions in the
Agreement for vertebrate species which
may be found in habitats within the

57723

planning area. At the time of
termination for the HCP phase of the
permit, the safe-harbor provision would
provide the Applicant relief from
regulatory restrictions on timbermanagement activities in habitats
provided for listed species which are
greater than the habitat amounts
required under the HCP.
The HCP is designed to complement
the Federal Northwest Forest Plan, and
includes various forms of mitigation
which are integral parts of the HCP.
Mitigation includes a schedule of
habitat amounts to be provided for each
decade of the 50-year HCP. These
habitats include eight stand-structure
types (ranging from early-successional
stages, such as stand initiation, to latesuccessional stages, such as old growth)
and habitat for owls. Owl-habitat
projections include projections for
nesting, roosting, and foraging habitat,
and for foraging and dispersal habitat.
Mitigation for gray wolves and grizzly
bears include avoidance of timber
harvest and road construction in certain
habitats, limits to road densities,
provision of visual cover, and other
specific management prescriptions.
Minimum prescriptions are also
provided for riparian and wetland areas,
and Watershed Analysis will be
completed on an accelerated basis.
Specific prescriptions to minimize and
mitigate impacts will also be
implemented for other species and
special habitats.
The DEIS considers four alternatives,
including the Proposed Action and the
No-action Alternatives. Under the Noaction Alternative, the Applicant would
avoid the take of all Federally listed
species and no permit would be issued.
Under the Riparian Alternative,
emphasis for conservation of fish and
wildlife species would be placed in
riparian and wetland areas; other
portions of the ownership would be
managed for aggressive timber harvest.
Under the Dispersal Alternative,
riparian areas would be managed for
fish and wildlife, but, in addition,
upland areas would be managed to
provide dispersal habitat for owls. The
Proposed Action builds upon the
benefits of the previous alternatives. It
places emphasis for conservation on
riparian and wetland areas, but, also,
commits to implementation of the
Applicant’s Environmental Principles;
provides for nesting, roosting, and
foraging habitat for owls, and provides
for habitat deferrals for owls and
goshawks. The Proposed Action
includes specific mitigation for other
currently listed and unlisted wildlife
species such as the gray wolf, grizzly
bear, Larch Mountain salamander, and

57724

Federal Register / Vol. 60, No. 222 / Friday, November 17, 1995 / Notices

other vertebrate species and special
habitats.
Dated: November 6, 1995.
Thomas J. Dwyer,
Deputy Regional Director, Region 1, Portland,
Oregon.
[FR Doc. 95–27962 Filed 11–16–95; 8:45 am]
BILLING CODE 4310–55–P

National Park Service
Fort McHenry National Monument and
Historic Shrine, MD; Concession
Contract
AGENCY:
ACTION:

National Park Service, Interior.

Public notice.

Public notice is hereby given
that the National Park Service proposes
to issue a concession contract for
operations currently conducted by
Evelyn Hill Corporation authorizing the
continuation of gift and souvenir sales
for the public at Fort McHenry National
Monument And Historic Shrine,
Baltimore, Maryland, for a period of five
(5) years from January 1, 1996 through
December 31, 2000.
SUMMARY:

EFFECTIVE DATE:

January 16, 1996.

Interested parties should
contact the Superintendent, Fort
McHenry National Monument and
Historic Shrine, Baltimore, Maryland
21230–5393, for information as to the
requirements of the proposed contract.

ADDRESS:

This
contract renewal has been determined to
be categorically excluded from the
procedural provisions of the National
Environmental Policy Act and no
environmental document will be
prepared.
The foregoing concessioner has
performed its obligations to the
satisfaction of the Secretary under an
existing contract which expired by
limitation of time on December 31,
1992, and therefore pursuant to the
provisions of Section 5 of the Act of
October 9, 1965 (79 Stat. 969; 16 U.S.C.
20), is entitled to be given preference in
the renewal of the contract and in the
negotiation of a new contract as defined
in 36 CFR, Section 51.5.
The Secretary will consider and
evaluate all proposals received as a
result of this notice. Any proposal,
including that of the existing
concessioner, must be postmarked or
hand delivered on or before the sixtieth
(60) day following publication of this
notice to be considered and evaluated.

SUPPLEMENTARY INFORMATION:

Dated: November 2, 1995.
Warren Beach,
Acting Director, Northeast Field Area.
[FR Doc. 95–28363 Filed 11–16–95; 8:45 am]
BILLING CODE 4310–70–M

General Management Plan/
Development Concept Plan, Draft
Environmental Impact Statement,
Natural Bridges National Monument,
UT
National Park Service, Interior.
Availability of draft
environmental impact statement and
general management plan/development
concept plan for Natural Bridges
National Monument.
AGENCY:
ACTION:

Pursuant to section 102(2)(c)
of the National Environmental Policy
Act of 1969, the National Park Service
(NPS) announces the availability of a
Draft Environmental Impact Statement/
General Management Plan/Development
Concept Plan (DEIS/GMP) for Natural
Bridges National Monument, Utah.
DATES: The DEIS/GMP will remain
available for public review until January
16, 1996. If any public meetings are held
concerning the DEIS/GMP, they will be
announced at a later date.
ADDRESSES: Comments of the DEIS/GMP
should be sent to the Superintendent,
Natural Bridges National Monument,
Box 1—Natural Bridges, Lake Powell,
Utah 84533–0101. Public reading copies
of the DEIS/GMP will be available for
review at the following locations:
Office of the Superintendent, Natural
Bridges National Monument, Box 1—
Natural Bridges, Lake Powell, Utah
84533–0101, (801) 692–1234
Office of Public Affairs, National Park
Service, Department of the Interior,
18th and C Streets NW., Washington,
DC 20240, Telephone: (202) 208–
6843.
SUPPLEMENTARY INFORMATION: The DEIS/
GMP analyzes two alternatives which
are being considered to direct the
management and development of
Natural Bridges National Monument for
a period of about ten years.
The alternatives include: (1) No
Action—Under this alternative, existing
facilities and management actions
would remain unchanged; (2) Proposed
Plan—Under the proposal, the
administrative/visitor center would be
expanded to provide 900–1,400 square
feet of office and sales space; removal
and rehabilitation of a small picnic area,
the addition of a comfort station and
benches for visitor comfort along the
loop road; the addition of housing for 12
future employees; redesign of the visitor
SUMMARY:

center parking area to improve vehicular
circulation; and the addition of a garage
and storage building in the maintenance
area.
The DEIS/GMP in particular evaluates
the environmental consequences of the
proposed action and the other
alternative on water resources, flood
plains, wetlands, geology, soils,
vegetation, wildlife, threatened and
endangered species, air quality, visual
interpretation, socioeconomic data,
health and safety, law enforcement,
other agencies, management and
operations, and cumulative impacts.
The environmental consequences of the
proposed action and alternative
considered are fully disclosed in the
DEIS/GMP/DCP.
FOR FURTHER INFORMATION: Contact
Superintendent, Natural Bridges
National Monument, at the above
address and telephone number.
Dated: October 20, 1995.
Roy Everhart,
Intermountain Field Area, National Park
Service.
[FR Doc. 95–28379 Filed 11–16–95; 8:45 am]
BILLING CODE 4310–70–P

Advisory Commission for the San
Francisco Maritime National Historical
Park; Meeting
Agenda for the December 7, 1995
Meeting of the Advisory Commission
for the San Francisco Maritime
National Historical Park
Public Meeting, Fort Mason, Building C,
Room 370, 9:30 am–12:15 pm
9:30 am—At Building C
Welcome—Neil Chaitin, Chairman,
Proclamation Presentation—Neil
Chaitin, Chairman,
Opening Remarks—Neil Chaitin,
Chairman
William G. Thomas, Superintendent
Old Business
Approval of Minutes
9:45 am—Orientation to Park
Departments
Collections, Judy Hitzeman,
Supervisory Archivist
Small Craft, William Doll, Curator of
Small Craft
10:05 am—Update—Museum
Accreditation San Francisco
Maritime National Historical Park,
Marc Hayman—Chief,
Interpretation and Resource
Management
10:15 am—Update—General
Management Plan, William G.
Thomas, Superintendent
10:30 am—Break.
10:45 am—FY–96 Ships Division
Priorities, Acting Ships Manager

6254

Federal Register / Vol. 61, No. 33 / Friday, February 16, 1996 / Notices
Name

Permit No.

Ray Griffiths .............................................................................................................................................................
Zentner and Zentner, Incorporated .........................................................................................................................
James Deacon .........................................................................................................................................................
Patricia Ann Hobell ..................................................................................................................................................
San Marino Environmental Consultants ..................................................................................................................
Louis Courtois ..........................................................................................................................................................
Elaine Harding-Smith ...............................................................................................................................................
Biosearch Wildlife Surveys ......................................................................................................................................
Jepson Prairie Reserve ...........................................................................................................................................
Donald L. Davis .......................................................................................................................................................
Carl J. Page .............................................................................................................................................................
Patricia Baird ...........................................................................................................................................................
Manomet Observatory for Conservation Sciences ..................................................................................................
John E. Moeur .........................................................................................................................................................
Stephen J. Myers .....................................................................................................................................................
A.G. Crook Company ..............................................................................................................................................
California Department of Water Resources .............................................................................................................
Regional Environmental Consultants ......................................................................................................................
Lisa Webber .............................................................................................................................................................
Thomas Roberts ......................................................................................................................................................
Carolee Caffrey ........................................................................................................................................................
Robert A. Aramayo ..................................................................................................................................................
Assistant Regional Director-Ecological Services, Region 1, U.S. Fish and Wildlife Service ..................................
Arthur Davenport .....................................................................................................................................................
Patrice Ashfield ........................................................................................................................................................
Enterprise Advisory Services, Incorporated ............................................................................................................
Janet Randall ...........................................................................................................................................................
Becky Yeager ..........................................................................................................................................................

FOR FURTHER INFORMATION CONTACT:

Chief, Division of Consultation and
Conservation Planning, U.S. Fish and
Wildlife Service, Ecological Services,
911 N.E. 11th Avenue, Portland, Oregon
97232–4181 (tel: 503–231–2063; fax:
503–231–6243).
Dated: February 9, 1996.
Thomas Dwyer,
Deputy Regional Director, Region 1, Portland,
Oregon.
[FR Doc. 96–3565 Filed 2–15–96; 8:45 am]
BILLING CODE 4310–55–P

Availability of an Environmental
Assessment and Receipt of an
Application Submitted by Ms. Suzanne
Gasque and Ms. Jewel Felkel for an
Incidental Take Permit for Redcockaded Woodpeckers in Association
With Timber Harvesting Activities on
Their Property in Orangeburg County,
South Carolina
Fish and Wildlife Service,
Interior.
ACTION: Notice.
AGENCY:

SUMMARY: Ms. Suzanne Gasque and Ms.
Jewel Felkel (Applicants) have applied
to the U.S. Fish and Wildlife Service for
an incidental take permit pursuant to
Section 10(a)(1)(B) of the Endangered
Species Act of 1973 (Act), as amended.
The proposed permit would authorize
the incidental take of a federally
endangered species, the red-cockaded
woodpecker Picoides borealis (RCW)

known to occur on property owned by
the Applicants in Orangeburg County,
South Carolina. The Applicants propose
to harvest 106 acres of timber on their
446-acre property located approximately
3.5 miles south of Elloree. The proposed
permit would authorize incidental take
of RCWs on this property in exchange
for mitigation elsewhere as described
further in the Supplementary
Information Section below.
The Service also announces the
availability of an environmental
assessment (EA) and habitat
conservation plan (HCP) for the
incidental take application. Copies of
the EA or HCP may be obtained by
making a request to the Regional Office
address below. Requests must be
submitted in writing to be processed.
This notice is provided pursuant to
Section 10 of the Act and National
Environmental Policy Act Regulations
(40 CFR 1506.6).
DATES: Written comments on the permit
application, EA and HCP should be sent
to the Regional Permit Coordinator in
Atlanta, Georgia, at the address below
and should be received on or before
March 18, 1996.
ADDRESSES: Persons wishing to review
the application, HCP, and EA may
obtain a copy by writing the Service’s
Southeast Regional Office, Atlanta,
Georgia. Documents will also be
available for public inspection by
appointment during normal business
hours at the Regional Office; or the

800793
800794
794782
789266
781377
802446
802445
768251
800777
800797
802094
802107
800922
802092
804203
802456
801821
797665
802086
802103
802104
804207
702631
802450
807056
806723
799486
804076

Issuance date
6/22/95
6/22/95
6/27/95
6/27/95
7/3/95
7/20/95
8/4/95
8/9/95
8/9/95
8/9/95
8/11/95
8/11/95
8/11/95
8/13/95
8/13/95
8/18/95
9/5/95
9/5/95
9/5/95
9/5/95
9/5/95
9/20/95
10/19/95
10/30/95
11/3/95
11/10/95
12/4/95
12/6/95

Asheville, North Carolina or Charleston,
South Carolina Field Offices. Written
data or comments concerning the
application, EA, or HCP should be
submitted to the Regional Office. Please
reference permit under PRT–810934 in
such comments.
U.S. Fish and Wildlife Service (AES/
TE), 1875 Century Boulevard, Suite
200, Atlanta, Georgia 30345,
Telephone: 404/679–7110, Fax: 404/
679–7081
Field Supervisor, U.S. Fish and Wildlife
Service, 160 Zillicoa Street, Asheville,
North Carolina 28801, Telephone:
704/258–3939
Field Supervisor, U.S. Fish and Wildlife
Service, 217 Fort Johnson Road,
Charleston, South Carolina 29422–
2559, Telephone: 803/727–4707.
FOR FURTHER INFORMATION CONTACT:
Janice Nicholls at the Asheville, North
Carolina Field Office, or Lori Duncan at
the Charleston, South Carolina, Field
Office, or Rick G. Gooch at the Atlanta,
Georgia, Regional Office.
SUPPLEMENTARY INFORMATION: The RCW
is a territorial, non-migratory
cooperative breeding bird species.
RCWs live in social units called groups
which generally consist of a breeding
pair, the current year’s offspring, and
one or more helpers (normally adult
male offspring of the breeding pair from
previous years). Groups maintain yearround territories near their roost and
nest trees. The RCW is unique among
the North American woodpeckers in

Federal Register / Vol. 61, No. 33 / Friday, February 16, 1996 / Notices
that it is the only woodpecker that
excavates its roost and nest cavities in
living pine trees. Each group member
has its own cavity, although there may
be multiple cavities in a single pine tree.
The aggregate of cavity trees is called a
cluster. RCWs forage almost exclusively
on pine trees and they generally prefer
pines greater than 10 inches diameter at
breast height. Foraging habitat is
contiguous with the cluster. The
number of acres required to supply
adequate foraging habitat depends on
the quantity and quality of the pine
stems available.
The RCW is endemic to the pine
forests of the Southeastern United States
and was once widely distributed across
16 States. The species evolved in a
mature fire-maintained ecosystem. The
RCW has declined primarily due to the
conversion of mature pine forests to
young pine plantations, agricultural
fields, and residential and commercial
developments, and to hardwood
encroachment in existing pine forests
due to fire suppression. The species is
still widely distributed (presently
occurs in 13 southeastern States), but
remaining populations are highly
fragmented and isolated. Presently, the
largest populations occur on federally
owned lands such as military
installations and national forests.
In South Carolina, there are an
estimated 681 active RCW clusters as of
1994; 67 percent are on Federal lands,
6 percent are on State lands, and 27
percent are on private lands. The
populations on public lands are
generally stable, and in some cases are
increasing. The overall population trend
on private lands in South Carolina, on
the other hand, is downward. Most
RCW populations on private lands are
relatively small and isolated.
The Applicant’s land in Orangeburg
County hosts a small and isolated
population of RCWs. As of 1995, there
were 2 active RCW clusters; 1 breeding
group and 1 solitary adult male. The
nearest known RCW group occurs on
private lands approximately 2.5 miles to
the north of the Gasque/Felkel tract near
Elloree. The nearest known RCW
concentration (greater than 5 groups)
occurs over 10–15 miles away on the
Manchester State Forest/Shaw Air Force
Base to the north in Sumter County, and
on the privately-owned Norfolk
Southern property located south of the
Gasque/Felkel tract in Dorchester
County. The Applicants propose to
harvest timber on their property for
supplemental income. Timber
harvesting activities may result in death
of, or harm to, any remaining RCWs
through the loss of nesting and foraging
habitat.

The EA considers the environmental
consequences of three alternatives,
including the proposed action. The
proposed action alternative is issuance
of the incidental take permit and
implementation of the HCP as submitted
by the Applicants. The HCP will
provide for the provisioning of 4
clusters with artificial starts and cavities
on suitable habitat on the Sandhills
State Forest in Chesterfield County. The
Sandhills State Forest is part of a
designated recovery population for the
RCW in the South Carolina Sandhills
Physiographic Province. The State
Forest has a total of 46,000 acres of
which 40,000 acres are manageable pine
lands (predominately longleaf pine).
The State Forest currently has 55 active
RCW groups with a long-term goal of
increasing the population to assist with
the recovery of the South Carolina
Sandhills population. The HCP will also
involve the translocation of any
juveniles produced by the breeding pair
on the Gasque/Felkel property to the
provisioned sites at the Sandhills State
Forest. Finally, the HCP will involve
monitoring the provisioned sites for a
specified time period at the State Forest
to determine success of the provisioning
efforts. The HCP provides a funding
source for the mitigation measures.
Dated: January 9, 1996.
Noreen K. Clough,
Regional Director.
[FR Doc. 96–3566 Filed 2–15–96; 8:45 am]

6255

Requests for complete
copies of the regulations, reproduction
rights and the display and participation
agreements should be addressed to:
Federal Duck Stamp Contest, U.S. Fish
and Wildlife Service, Department of the
Interior, 1849 C Street NW., Suite 2058,
Washington, DC 20240.
Location of Contest: Department of
the Interior Building, Auditorium (C
Street entrance), 1849 C Street NW.,
Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Mrs. Lita F. Edwards, Telephone (202)
208–4354 or Fax (202) 208–6296.
SUPPLEMENTARY INFORMATION: The
following five eligible species for the
1996–97 duck stamp contest are as
follows:
(1) Canada Goose
(2) Greater Scaup
(3) Green-Winged Teal
(4) Northern Pintail
(5) Black Duck
The primary author of this document
is Mrs. Lita F. Edwards, U.S. Fish and
Wildlife Service.
ADDRESSES:

Dated: February 6, 1996.
John G. Rogers, Jr.,
Director.
[FR Doc. 96–3562 Filed 2–15–96; 8:45 am]
BILLING CODE 4310–55–M

Bureau of Land Management
[CACA 35919]

BILLING CODE 4310–55–P

California; Classification of Public
Lands

Migratory Bird Hunting and
Conservation Stamp (Duck Stamp)
Contest

AGENCY:

Fish and Wildlife Service,
Interior.
ACTION: Notice.

The following described lands
have been examined and found suitable
for classification for recreation and
public purposes under the provisions of
the Recreation and Public Purposes Act
(R&PP) of June 14, 1926, as amended (43
U.S.C. 869 et. seq.). The Bureau of Land
Management will reclassify 160 acres of
public land in San Bernardino County
to facilitate the Colorado River Law
Enforcement Shooting Range Project.
DATE: Comments must be received by
April 1, 1996. Adverse comments will
be reviewed by the State Director.
ADDRESS: Bureau of Land Management,
Area Manager, Needles Resource Area,
101 W. Spikes Road, Needles,
California, 92363.
FOR FURTHER INFORMATION CONTACT:
George R. Meckfessel, Planning &
Environmental Coordinator, (619) 326–
3896.
SUPPLEMENTARY INFORMATION: On
February 9, 1996 a decision was made

AGENCY:

The Service announces the
dates and locations of the 1996 Federal
Duck Stamp Contest; the public is
invited to attend.
DATES: 1. The 1996 contest opens for
submission July 1, 1996.
2. The public may view the 1996
Federal Duck Stamp Contest entries on
Tuesday, October 15, 1996, from 10:00
a.m. to 2:00 p.m., in the Department of
the Interior Auditorium.
3. This year’s judging will be held
from October 16–17, 1996, beginning at
10:30 a.m. on Wednesday, October 16,
and continuing at 9:00 a.m. on
Thursday, October 17.
4. Persons wishing to enter this year’s
contest may submit entries anytime after
Monday, July 1, but all must be
postmarked no later than midnight
Sunday, September 15, 1996.
SUMMARY:

Bureau of Land Management,
Interior.
ACTION: Notice, CA–35919.
SUMMARY:

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

FEDERAL FISH AND WILDLIFE PERMIT

16 USC1539(a)(1)(B)
REGULATIONS (ATTACHED)

50 CFR §13 & 17, & 21
3. NUMBER

PRT-XXXXX
1. PERMITTEE

4. RENEWABLE

5. MAY COPY

NAME
ADDRESS
CITY, STATE, ZIP CODE
PHONE

XXXX

YES

XXXX

YES

_____

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:

THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN, STATE, LOCAL OR
OTHER FEDERAL LAW.

VALID FOR USE BY PERMITTEE

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.

BLOCK 11 OF THIS PERMIT CONSISTS OF ITEMS A-P (5 PAGES TOTAL)

NAMED ABOVE, AND HIS DESIGNATED AUTHORIZED AGENTS.

12. REPORTING REQUIREMENTS

REPORTS WILL BE PROVIDED TO THE U.S. FISH AND WILDLIFE SERVICE OFFICES APPEARING IN ITEMS N, O, 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.

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).

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).

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.

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).

The Permittee will provide funding for implementation of Conditions H.1 through H.3, not to exceed
$45,000 (Forty-five thousand dollars).

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.

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.

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.

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.

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.

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 5

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.

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, O, 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.

A copy of the executed contract with the qualified contractor, as outlined in Item J, if not previously
provided.

An accounting of the funding identified in Item H.4.

Include any corrective measures or other changes that may be necessary to improve the efficacy of the
Permit.

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.

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.

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

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

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
U.S. FISH AND WILDLIFE SERVICE

3-201 (10/86)

2. AUTHORITY-STATUTES

FEDERAL FISH AND WILDLIFE PERMIT

16 USC1539(a)(1)(B)
REGULATIONS (ATTACHED)

50 CFR §13 & 17, & 21
3. NUMBER

PRT-XXXXX
1. PERMITTEE

4. RENEWABLE

5. MAY COPY

NAME
ADDRESS
CITY, STATE, ZIP CODE
PHONE

XXXX

YES

XXXX

YES

_____

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

10. LOCATION WHERE AUTHORIZED ACTIVITY MAY BE CONDUCTED

Orange County, California: on lands specified within the body of the permit.
11. CONDITIONS AND AUTHORIZATIONS:

THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN, STATE, LOCAL OR
OTHER FEDERAL LAW.

VALID FOR USE BY PERMITTEE

FURTHER CONDITIONS OF AUTHORIZATION ARE CONTAINED IN THE ATTACHED SPECIES TERMS AND CONDITIONS.

NAMED ABOVE, AND HIS DESIGNATED AUTHORIZED AGENTS.

12. REPORTING REQUIREMENTS

See permit conditions for reporting.
ISSUED BY:

TITLE

DATE

U.S. FISH AND WILDLIFE SERVICE, PORTLAND, OREGON
PERMIT CONDITIONS FOR PRT-784571

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).

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.

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.

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.

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.

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 619-4319440). 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.

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 Shell/MWD 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.

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 brushclearing and grading of all coastal sage and cactus scrub vegetation.

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.

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.

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.

The monitoring biologist(s) will flush coastal California gnatcatchers, cactus wrens, and other wildlife from occupied 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.

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.

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.

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 1: 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

File Type	application/pdf
File Title	Habitat Conservation Planning and Incidental Take Permit Processing Handbook
File Modified	2006-11-17
File Created	1999-01-06