In late December, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, “the Services”) issued the final revised joint Habitat Conservation Planning Handbook (HCP Handbook). 81 FR 93702. The original HCP Handbook was issued in 1996 and later revised in 2000. Most recently, the Services held a 60-day comment period on draft revisions to the Handbook in June 2016, during which 54 public comments were submitted.
The HCP Handbook describes requirements, procedures, and guidance for incidental take permits and habitat conservation plan development under the Endangered Species Act (ESA). An “incidental take” is an impact on a listed species which is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Pursuant to ESA § 10(a)(1)(B), incidental take permits can be issued to authorize such impacts, but require development of a habitat conservation plan. The Services work with applicants to develop a habitat conservation plan which must specify—among other requirements—the impacts likely to result from “incidental take” and the measures the applicant will undertake to minimize and mitigate those impacts.
The revised HCP Handbook emphasizes thorough pre-planning (especially for landscape-level HCPs) and aims to streamline the HCP development process. The Handbook updates are designed to be consistent with recently issued Service policies—including the revised FWS Mitigation Policy announced in November 2016—and to provide guidance on how to comply with other related federal statutes such as section 106 of the National Historic Preservation Act and the National Environmental Policy Act.
The updated Handbook also provides explanation on several aspects of the HCP development process, including (1) clarification on the concept of minimizing and mitigating the impacts of taking “to the maximum extent practicable”; (2) clarification regarding the use of implementing agreements; (3) updates to permit duration; (4) updates and clarification related to what should be addressed through adaptive management versus changed and unforeseen circumstances; and (5) additional information concerning take analysis, response to public comments, public notices, permit decision documents, compliance monitoring, and incidental take permit suspension and revocation.