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Federal Habitat Conservation Planning
Habitat Conservation Plans (HCP) are long-term agreements between an applicant and the U.S. Fish and Wildlife Service. They are designed to offset any harmful effects that a proposed activity might have on federally-listed threatened and endangered species. The HCP process allows development to proceed while providing a conservation basis to conserve the species and provide for incidental take. A “No Surprises” policy provides assurances to landowners participating in HCP efforts
(Federal Endangered Species Act Section 10(a))
The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) prepared a handbook to provide guidance in the development of habitat conservation plans for the incidental take of federally listed species. The handbook covers the federal Endangered Species Act (ESA), permits, roles and responsibilities, coordination, Habitat Conservation Plan (HCP) development, environmental analysis, issuance criteria, and policies and procedures.
State’s Role in Habitat Conservation Planning Procedures
The State permitting process equivalent to a federal HCP is an incidental take permit allowed under Fish and Game Code Section 2081(b). The Department will be a full participant in all phases of HCP development. Coordination with USFWS/NMFS is essential during all phases of plan development and implementation to assure full integration of State and federal permitting processes.
Pursuant to the federal ESA, incidental take permits are required when non-federal activities result in the take of federally listed threatened and/or endangered species. The application for an incidental take permit has a number of requirements including the preparation of a conservation plan, generally referred to as a Habitat Conservation Plan or HCP. The federal requirement is that the take be incidental to an otherwise lawful activity and that the applicant minimize the take and mitigate it to the maximum extent practicable.
An HCP can address take of federally listed, candidate and/or unlisted species. Unlisted species must be treated in the HCP as if they were listed, however, take is not authorized until the species is listed. HCPs can be prepared for any scale project (e.g., for small projects addressing a single species or large-scale developments addressing multiple species).
There are no federal take prohibitions of listed plant species on non-federal lands, however, within an HCP process, listed plants are usually addressed in a manner similar to listed animal species. For listed plants, the USFWS or NMFS will focus their analysis of the HCP permit application on whether issuance of the permit would constitute jeopardy rather than incidental take issues.
In order for the Department to issue a 2081(b) permit for an HCP, the HCP must be consistent with the Fish and Game Code including: 1) the take is incidental to an otherwise lawful activity; 2) the impacts of the take are minimized and fully mitigated; 3) the mitigation measures are roughly proportional to the impact; and 4) adequate funding for implementation, compliance and effectiveness monitoring is assured.
A 2081(b) permit issued in association with an HCP can only authorize take of species listed by the State. Take of unlisted species cannot be authorized, although provisional language can be included to allow authorizing take should an unlisted species become listed during the life of the permit. At such time, the plan’s permit can be amended so long as the plan addressed the conservation needs of the newly listed species.
Coordination with the USFWS or NMFS and the applicant is essential during the preparation phase of the 2081 Permit Application/HCP. Contact with these entities should be made as early as possible in the process. In this manner, the State’s concerns can be addressed early and a 2081(b) permit issued at the same time as the HCP is approved. Department personnel should request coordination with the USFWS/NMFS on the biological opinion they will prepare to ensure it meets, as closely as possible, the California Endangered Species Act requirements. In addition, coordination with the Habitat Conservation Planning Branch’s Environmental Review and Permitting program is important to ensure consistency with Departmental standards.
Project proponents are encouraged to prepare a 2081 Permit Application as they prepare an HCP to assure that all issues regarding State listed species are fully addressed. In the case where all species to be covered are jointly State and federally listed, applicants may request a consistency determination pursuant to Fish and Game Code Section 2080.1 in lieu of preparing a 2081 Permit Application. However, if the HCP fails to adequately address the State listed species, the applicant could receive an inconsistency determination, resulting in the need to develop a 2081 Permit Application and delaying the project approval process.
Regional responsibilities include providing species/habitat expertise, and assisting applicants, local jurisdictions and other State and federal agencies to develop 2081 Permit Applications/HCPs.
Headquarters responsibilities include providing policy direction and oversight of 2081 Permit Applications/HCPs to insure consistency with existing law, policy, and approaches among plans. Headquarters staff also provide species/habitat expertise, training for Department employees entering the conservation planning arena, and outreach information on conservation planning approaches through presentations, publications, and reports.