Notice of Availability of a Draft Addendum to the Final Handbook for Habitat Conservation Planning and Incidental Take Permitting Process

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 981208299-8299-01]

RIN 1018-ZA03

Notice of Availability of a Draft Addendum to the Final Handbook

for Habitat Conservation Planning and Incidental Take Permitting

Process

AGENCIES: Fish and Wildlife Service, Interior, and National Marine

Fisheries Service, National Oceanic and Atmospheric Administration,

Commerce.

ACTION: Notice of document availability; request for comments.

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SUMMARY: The Fish and Wildlife Service and National Marine Fisheries

Service (the Services) are publishing for comment a Draft Addendum to

the final Handbook for Habitat Conservation Planning and Incidental

Take Permitting Process (5-point policy guidance), which is included

entirely within this notice. The purpose of the Draft Addendum is to

provide additional clarifying guidance to the Services for conducting

the incidental take permit program under section 10(a)(1)(B) of the

Endangered Species Act including developing habitat conservation plans

(HCPs). It also provides clarifying guidance to those who are applying

for an incidental take permit. We believe the draft guidance will

promote efficiency and nationwide consistency within and between the

Services and improve the HCP program.

DATES: The Services must receive comments on or before May 10, 1999. We

must receive your comments by this date for them to be considered

during preparation of a final Addendum.

ADDRESSES: Send written comments regarding this Draft Addendum to the

Division of Endangered Species, U.S. Fish and Wildlife Service, 4401

North Fairfax Drive, Room 452, Arlington, Virginia 22203 (facsimile

703/358-1735); or to the Office of Protected Resources, National Marine

Fisheries Service, 1315 East-West Highway, Silver Spring, Maryland

20910 (facsimile 301/713-0376). Comments received will be available for

public inspection, by appointment, during normal business hours at the

above addresses.

FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of

Endangered Species, U.S. Fish and Wildlife Service, (telephone 703/358-

2171, facsimile 703/358-1735), or Kevin Collins, Chief, Endangered

Species Division, National Marine Fisheries Service (telephone 301/713-

1401, facsimile 301/713-0376) at the above addresses.

SUPPLEMENTARY INFORMATION:

Background

The Endangered Species Act (ESA) was amended in 1982 to allow the

taking of listed species incidentally to an otherwise lawful activity

by non-Federal entities such as states, counties, local governments,

and private landowners (section 10(a)(1)(B)). To receive a permit, the

applicant submits a conservation plan (also referred to as an HCP) that

meets the criteria included in the ESA and its implementing regulations

(50 CFR parts 17 and 222). The Services recently amended those

regulations to include ``No Surprises'' assurances (February 23, 1998,

63 FR 8859). To provide internal guidance on conducting the incidental

take permit program, the Services developed the joint Handbook for

Habitat Conservation Planning and Incidental Take Permitting Process

(HCP Handbook), which was made available for public review and comment

on December 21, 1994 (59 FR 65782) and issued in final form on December

2, 1996 (61 FR 63854).

In just a few years, the HCP program has been transformed from a

relatively little-used approach under the ESA to one of its most

important and innovative conservation programs. For example, in the

first ten years of the program, the Services issued only 14 incidental

take permits. However, by September 30, 1998, the Services had issued

243 incidental take permits, and approximately 200 HCPs are currently

under development.

The section 10 incidental take process provides the Services an

opportunity to negotiate with and provide technical assistance to

applicants as they develop HCPs. Also, it provides the flexibility the

Services and applicants need to resolve issues between economic

development and species conservation. The Services continue to learn

from the HCP program which we believe has resulted in stronger HCPs

that help ensure species conservation. Based on comments received from

the public through a variety of ways (workshops, meetings, training

sessions, scientific studies, participation in the development and

implementation of HCPs, and during comment periods on various ESA

regulations and policies) as well as deliberations within the Services,

we announced, on February 17, 1998, our intention to provide a draft 5-

point policy initiative for public review and comment. The 5-points

addressed herein as the Draft Addendum are (1) biological goals and

objectives, (2) adaptive management, (3) monitoring, (4) permit

duration, and (5) public participation.

Addendum To the HCP Handbook

The Services intend to incorporate the 5-point policy initiative

into the HCP Handbook as an addendum that will provide additional

guidance on implementing the incidental take permit provisions of

section 10(a)(1)(B) of the ESA. The five sections (or 5-points) of the

Draft Addendum are contained entirely within this notice. Some of this

guidance is derived from approaches we currently apply to the HCP

process. In particular, we will use this guidance to establish overall

biological goals for species covered by HCPs, to clarify and expand the

use of adaptive management, monitoring, and to provide criteria to be

considered by the Services in determining incidental take permit

duration, and to expand the use of public participation. Nothing in

this guidance is intended to supersede or alter any aspect of Federal

law or regulation pertaining to the conservation of threatened or

endangered species.

Biological Goals and Objectives

An approved incidental take permit and associated HCP authorizes

incidental take of the covered species while meeting the issuance

criteria in section 10(a)(2)(B) of the ESA. They ensure that the

permittee will minimize and mitigate the effects of the authorized

incidental take to the maximum extent practicable through an HCP's

operating conservation program. An operating conservation program

consists of the management activities undertaken when implementing an

approved HCP to minimize and mitigate the effects of the activity on

the covered species. The biological outcome of the operating

conservation program for the covered species is the best measure of the

success of an HCP. The best HCPs clearly define the desired outcome for

the covered species and their habitats in terms of biological goals and

objectives.

Although identifying biological goals and objectives was discussed

in the HCP Handbook, the Services did not require HCPs to specifically

identify biological goals and objectives. However, most HCPs had

implied biological goals and objectives, and many recent HCPs include

explicit biological goals and/or objectives. In the future, every HCP

will include specific biological goals and objectives. Pursuant to the

underlying

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statutory and regulatory authorities, the Services will work with the

applicant to derive the biological goals and objectives by examining

the applicant's proposed action and the overall conservation needs of

the covered species and/or its habitat.

Biological goals are the broad guiding principles for the operating

conservation program; they are the rationale behind the minimization

and mitigation strategies. Specific biological objectives are subsets

of the biological goals and represent specific measurable targets for

achieving the goals of the operating conservation program. Thus

biological goals and objectives can be stated in a step-down approach

based on the best scientific information available and reflect the

conservation needs of the covered species. However, not all HCPs are

likely to need complex, multi-tiered biological goals and objectives.

The biological goals and objectives should be commensurate with the

specific impacts and duration of the HCP applicant's proposed action.

For example, low-effect HCPs generally have simple measurable

biological objectives (e.g., preserving a minimum number of forage

trees on the property) and include a relatively simple operating

conservation program and monitoring protocol.

Determination of the biological goals and objectives is integral to

the development of the operating conservation program. Conservation

measures identified in an HCP, its accompanying incidental take permit,

and/or IA provide the means for achieving the biological goals and

objectives. For example, the overall biological goal could be to ensure

population viability by maintaining habitat contiguity. The specific

measurable objective to achieve this goal may be to conserve an

adequate number of acres of habitat in a certain configuration, so that

a viable corridor is maintained. The conservation measures could

specify the number of acres and configuration. If the size and

configuration were not determinable, an adaptive management strategy

could be used, and the HCP, permit, and/or IA could list a series of

incremental steps to be taken within an agreed upon range of management

adjustments for determining and securing a viable corridor.

Available literature, State conservation strategies, candidate

conservation plans, draft or final recovery plans or outlines, and

other sources of relevant scientific and commercial information can

serve as guides in setting biological goals and objectives. Species

experts, State wildlife agencies, recovery teams, and/or scientific

advisory committees may also help develop the biological goals and

objectives. The biological goals and objectives may be either habitat

or species based. More complex multispecies and/or regional HCPs may

need an integration of habitat and species-specific goals and

objectives. Although the goals and objectives may be stated in habitat

terms, each covered species that falls under that goal or objective

must be clearly specified. Regardless of the type of goal and objective

used, the Services will ensure that the biological goals are consistent

with conservation actions needed to adequately minimize and mitigate

impacts to the covered species to the maximum extent practicable.

Explicit biological goals and measurable objectives provide clear

guidance for both the applicant and the Service as to the purpose and

direction of the HCP's operating conservation program. They create

parameters and benchmarks for developing conservation measures, provide

the rationale behind the HCP's terms and conditions, promote an

effective monitoring program, and help determine the focus of an

adaptive management strategy, if appropriate. The operating

conservation program will include those measurable actions that, when

implemented, are anticipated to meet the biological objectives.

Implementing the operating conservation program is the extent of the

permittee's obligation for meeting the biological goals and objectives.

Adaptive Management

Adaptive management strategies can assist the Services and the

applicant in developing an adequate operating conservation program and

improving its effectiveness. In the HCP program, adaptive management is

used to examine alternative strategies for meeting measurable

biological goals and objectives through research and/or monitoring, and

then, if necessary, to adjust future conservation management actions

according to what is learned.

Not all HCPs or all species covered in an incidental take permit

need an adaptive management strategy. However, an adaptive management

strategy is essential for permits that cover species that have

significant biological data or information gaps that incur a

significant risk to that species at the time the permit is issued.

Possible significant data gaps that could lead to the development of an

adaptive management strategy include, but are not limited to,

significant biological uncertainty about specific information about the

ecology of the species or its habitat (e.g., food preferences, relative

importance of predators, territory size), habitat or species management

techniques, or the degree of potential effects of the activity on the

species covered in the incidental take permit. However, there may be

some circumstances with such a high degree of uncertainty that a

species should not receive coverage in an incidental take permit at all

until additional research is conducted. If an adaptive management

strategy is used, the approved HCP must outline the agreed upon future

changes to the operating conservation program.

Habitat Conservation Plan assurances (No Surprises) and the use of

adaptive management strategies are compatible. The assurances apply

once all appropriate HCP provisions have been mutually crafted and

agreed upon and approved by the Services and the applicant. Adaptive

management strategies, if used, are part of those provisions, and their

implementation becomes part of a properly implemented conservation

plan. When an HCP, permit, and IA incorporate an adaptive management

strategy, it should clearly state the agreed upon and warranted range

of possible operating conservation program adjustments due to

significant new information, risk, or uncertainty. During HCP

negotiations, the Services and the applicant should determine the range

of acceptable and anticipated management adjustments necessary to

respond to new information after the permit is issued and describe this

procedure in the HCP, permit, or IA. This process will enable the

applicant to assess the potential economic impacts of adjustments

before agreeing to the HCP.

Often, there is a direct relationship between the level of

biological uncertainty for a covered species and the degree of risk

that an incidental take permit could pose for that species. Therefore,

the operating conservation program may need to be relatively cautious

initially and adjusted later based on new information. A practical

adaptive management strategy within the operating conservation program

of a long-term incidental take permit will include milestones that are

reviewed at scheduled intervals during the lifetime of the incidental

take permit and permitted action. If there is a relatively high degree

of risk, milestones and adjustments may need to occur early and often.

For an adaptive management strategy to be effective, it must be

integrated into a monitoring program that is designed to ensure proper

data collection and analysis that can guide appropriate adjustments in

the operating conservation program. For example, a

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habitat management objective may be defined as recruiting 95 percent

large woody debris into streams to achieve the biological goal of

maintaining properly functioning riparian habitat. The operating

conservation program could include a range of possible buffers to

achieve the biological objectives. The monitoring program would include

measuring the amount of woody debris in streams. If the results from

the monitoring program indicated that the 95-percent objective was not

being achieved, then a change from one buffer to another might be

warranted. However, the original agreed upon range of possible

management adjustments, as identified in the HCP, incidental take

permit, or IA, would need to have included the new buffer. The design

of the adaptive management strategy and the monitoring program includes

the type(s) of information needed and the triggers to institute changes

in the width of the buffer.

If existing ecological data is insufficient to determine the method

needed to achieve a biological objective, adaptive management

strategies can be used to meet objectives by obtaining information on

the species and its ecology through ongoing research, recovery

planning, and conservation planning by Federal, State, and local

agencies. For example, the Natomas Basin HCP in California has an

adaptive management strategy that incorporates ongoing research. At

this time, the U.S. Geological Survey's Biological Resources Division

is conducting a study to determine the giant garter snake's population

biology and habitat use. If additional information from the study

suggests a different approach is appropriate to meet the conservation

needs of the snake, the preserve location(s) could be modified and the

habitat type emphasized in the restoration could be changed within the

terms of the adaptive management strategy of the HCP's operating

conservation program.

If the full range of effects of a proposed project is unknown at

the time of HCP negotiation, a monitoring program combined with an

adaptive management strategy could determine the actual extent of

effects and then allow for agreed upon shifts in management strategies.

A key element of adaptive management is to establish the information

needs and link them to the management strategies and their objectives.

For example, a study to determine the specific effects of grazing on a

butterfly, based on a range of possible grazing pressures, could help

establish a long-term management strategy. The HCP's adaptive

management strategy could outline the potential range of grazing

management regimes, but since the extent of the butterfly's tolerance

of grazing may be initially unknown, the operating conservation program

could start with a more cautious grazing regime and be subject to

subsequent relaxation, if appropriate. The particular aspects of the

grazing regime could subsequently shift or relax, depending on the

results of the study.

Where specific methodologies (e.g., translocation) or strategies

have not been thoroughly tested, an adaptive management strategy can

investigate different management tools to determine the best approach.

In Utah, the Washington County HCP includes a five-year desert tortoise

translocation study. Translocation of desert tortoises from areas to be

developed is an action to minimize, not mitigate, take of desert

tortoises in the HCP. Depending on the recovery unit, translocation may

prove to be a useful tool for desert tortoise recovery in the future.

Healthy desert tortoises found within areas to be developed are

translocated to designated areas. The effects of that translocation on

the biology of the tortoises, including health status, weight gain,

reproduction, and behavior, are being monitored. If the tortoises

successfully adapt to the new location, then translocation may continue

in an isolated and currently unoccupied portion of the HCP reserve

area. Information gained on the efficacy of translocation as a

management technique, and on habitat requirements of desert tortoises

(vegetation, elevation, etc.) can subsequently be used to adjust

management in this and other HCPs in the range of the species.

HCPs may be designed to provide flexibility other than through the

use of adaptive management. The permittee or another responsible party

may need the flexibility, under different circumstances, to employ

alternative methods or strategies within the operating conservation

program to achieve the biological goals and objectives. This

flexibility also allows previously agreed upon management and/or

mitigation actions to be implemented as needed in response to changed

circumstances. The HCP, incidental take permit, and IA, if any,

describes the range of management and/or mitigation actions and the

process by which the management and funding decisions are made and

implemented.

Monitoring

Monitoring is a mandatory element of all HCPs (See 50 CFR

17.22(b)(1), 17.32(b)(1), and 222.22). When properly designed and

implemented, monitoring programs for HCPs should obtain the information

necessary to assess compliance, project impacts, and to verify progress

toward the agreed upon biological goals and objectives. Monitoring also

provides the scientific data necessary to evaluate the success of the

HCP's operating conservation programs with respect to the development

of strategies in future HCPs or other programs that contribute to the

conservation of species and their habitat. The HCP Handbook already

provides guidance for developing monitoring measures (Chapter 3,

section B.4.) and discusses reporting requirements (Chapter 6, section

E.4.). The following information further clarifies and provides

additional guidance for the monitoring component of an HCP, permit,

and/or IA.

Scope of Monitoring

The Services and the applicant must ensure that the monitoring

program provides information to: (1) evaluate compliance; (2) determine

if biological goals and objectives are being met; and (3) provide

feedback to an adaptive management strategy, if used. Biological

objectives provide a framework for developing a monitoring program that

measures progress toward meeting those biological objectives. If an

HCP, permit, and/or IA has an adaptive management strategy, it is

crucial to integrate the monitoring program into this strategy in order

to guide any necessary changes in management.

When an applicant and the Services design a monitoring program, the

scope of the monitoring measures should be commensurate with the scope

and duration of the operating conservation program and project impacts.

Some programs may be simple, while those for large-scale or regional

planning efforts may be comprehensive and track more than one component

of the HCP (e.g., habitat quality, collection of mitigation fees). The

HCP, permit, and/or IA should also tier the monitoring program to

reflect the structure of the biological goals and objectives. The

following components are essential for most monitoring protocols (the

size and scope of the HCP will dictate the actual level of detail in

each item): (1) the implementation and effectiveness of the HCP terms

and conditions (e.g., financial responsibilities and obligations,

management responsibilities, and other aspects of the incidental take

permit, HCP, and the IA, if applicable); (2) the level of incidental

take of the covered species; (3) the biological conditions resulting

from the operating conservation program (e.g.,

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change in the species' status or a change in the habitat conditions);

and (4) any informational needs of an adaptive management strategy, if

utilized. An effective monitoring program is flexible enough to allow

modifications, if necessary, to obtain the appropriate information.

In order to obtain meaningful information, the applicant and the

Services should structure the monitoring methods and standards so that

the results from one reporting period and area to another are

comparable, and the monitoring protocol responds to the question(s)

asked. Credible monitored units should reflect the biological

objective's measurable units (e.g., if the biological objective is in

terms of numbers of individuals, the monitoring program should measure

the number of individuals). The monitoring program will be based on

sound science and standard survey or other monitoring protocols

previously established should be used. Although the specific methods

used to gather necessary data may differ depending on the species and

habitat types, monitoring programs should use a multispecies approach

when appropriate.

HCP monitoring should consist of two types. The first is compliance

monitoring, where the Services monitor the permittee's implementation

of the requirements of the HCP, incidental take permit terms and

conditions, and IA, if applicable. The second is effects and

effectiveness monitoring where the permittee (or other designated

entity) examines the impacts of the authorized incidental take

(effects) and implementation of the operating conservation program to

determine if the actions are producing the desired results

(effectiveness). To monitor all aspects of an HCP effectively, and to

ensure its ultimate success, the entire monitoring program should

incorporate both types of monitoring. The monitoring program should

also clearly designate who is responsible for the various aspects of

monitoring.

Compliance Monitoring

Compliance monitoring is necessary for the Services to ensure that

the permittee is meeting the terms and conditions of the HCP, its

accompanying incidental take permit, and IA, if any. Therefore, the

Services verify adherence to the terms and conditions of the incidental

take permit, HCP, IA, and any other related agreements, and will ensure

that incidental take of the covered species does not exceed the level

authorized under the incidental take permit. FWS and NMFS regulations,

50 CFR 13.45 and 50 CFR 220.45, respectively, provide the authority for

the Services to require annual compliance reports unless otherwise

specified by the incidental take permit. Also, the Services will ensure

that the reporting requirements are tailored to assist the Services

with monitoring incidental take permit compliance (e.g., documentation

of habitat acquisition, use of photographs). These reports help

determine whether the permittee is properly implementing the terms and

conditions of the HCP, its incidental take permit, and any IA, and will

provide a long-term administrative record documenting progress made

under the incidental take permit.

In addition to reviewing reports submitted by the permittee, it is

important for the Services to make field visits to verify whether the

report data are correct and the HCP is being implemented as negotiated.

These visits allow the Services to check for information, identify

unanticipated deficiencies or benefits, develop closer cooperative ties

with the permittee, help prevent accidental violations of the

incidental take permit's terms and conditions, and assist the permittee

and Services in developing corrective actions when necessary.

The Services must track HCP implementation and the monitoring

programs. The Services' National and Regional Offices will develop a

database to track incidental take permit issuance and compliance. The

following standard fields should be included in each database to

maintain consistency throughout the Nation:

1. The permittee's name;

2. The incidental take permit number;

3. The incidental take permit duration;

4. The amount of authorized take;

5. The location of permitted action and mitigation;

6. The amount of area covered;

7. The species and habitat covered; and

8. The nature of the permitted activity.

Some suggested additional fields in the databases include:

1. A brief summary of the monitoring program;

2. The reporting frequency and the dates reports are due, received,

and reviewed;

3. The nature and effect of the incidental take; and

4. A brief description of the status of the operating conservation

program.

Individual Regional Offices may choose to expand the databases to

add fields specific to the HCPs in their region, especially for

tracking cumulative effects for future HCP analyses. For example, the

database may also record and schedule periodic audits of the HCP and

field visits. The databases should allow the Services to generate

monthly and quarterly lists identifying the completion and due dates

for operating conservation program or other HCP actions. This will help

the Services initiate the required review and analysis needed for the

monitoring program associated with each HCP.

For large-scale and/or regional HCPs, oversight committees, made up

of representatives from significantly affected entities (e.g., State

Fish and Wildlife agencies), are often used to ensure proper and

periodic review of the monitoring program, and to ensure that each

program complies with the terms and conditions of the incidental take

permit. For example, the proponents of the Karner blue butterfly HCP in

Wisconsin are proposing an auditing approach to insure incidental take

permit compliance. The lead applicant, Wisconsin Department of Natural

Resources, will initially conduct annual on-site audits of each

partner. FWS will audit the Wisconsin Department of Natural Resources

in a similar fashion. In addition, FWS will accompany the Wisconsin

Department of Natural Resources on the partner audits as appropriate to

understand partner compliance levels. Over time, Wisconsin Department

of Natural Resources will conduct the audits less frequently, if

performance levels are acceptable. Each partner will provide an annual

monitoring report and will submit these along with their audit report

to FWS annually.

Oversight committees should periodically evaluate the permittee's

compliance with the HCP, its incidental take permit, and IA, and the

success of the operating conservation program in reaching its

identified biological goals and objectives. Such committees usually

include species experts and representatives of the permittee, the

Service, and other affected agencies and entities. It may also be

beneficial to submit the committee's findings to recognized experts in

pertinent fields (e.g., conservation biologists, restoration

specialists, etc.) for review or to have technical experts conduct

field investigations to assess implementation of the terms and

conditions. Because the formation of these committees may be subject to

the Federal Advisory Committee Act (FACA), the role of the participants

and the purpose of the meetings must be clearly identified. FACA

requirements will be adhered to,

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where appropriate. Oversight committees should meet at least annually

and review implementation of the monitoring program and filing of

reports as defined in the HCP, permit, and/or IA.

Monitoring the Effects and Effectiveness of the HCP

Effects and effectiveness monitoring determine if the anticipated

impacts from the permitted project are occurring (effects) and progress

toward the biological goals and objectives of the HCP (e.g., if the

conservation strategies are producing the desired habitat conditions or

population numbers) (effectiveness). The Services should incorporate

provisions for monitoring the effects and effectiveness of the HCP

during HCP development. Effects and effectiveness monitoring may also

involve assessing threats and population trends of the covered species

as it relates to the permitted activities, as well as monitoring the

development of targeted habitat conditions. The Services should strive

to collect information that will help detect cumulative trends in

covered species populations or changes in the quality and/or quantity

of the habitat (e.g., restoration of the streamside riparian area).

Monitoring programs will vary based on whether they are for low-

effect or for regional, multispecies HCPs; however, the general

elements of each program are similar. Post-activity or post-

construction monitoring, along with a single report at the end of the

monitoring period, will often satisfy the monitoring requirements for

low-effect HCPs. For other HCPs, monitoring programs will be more

comprehensive and may include milestones, timelines, and/or trigger

points for change. Effects and effectiveness monitoring will generally

include, but are not limited to, the following:

1. Periodic accounting of authorized incidental take;

2. Surveys to determine species status, appropriately measured for

the particular operating conservation program (e.g., presence, density,

or reproductive rates);

3. Assessments of habitat condition;

4. Progress reports on fulfillment of the operating conservation

program (e.g., habitat acres acquired and/or restored); and

5. Evaluations of the operating conservation program and its

progress toward its intended biological goals.

The Services and the HCP permittee cooperatively develop the

effects and effectiveness monitoring program and determine

responsibility for its various components. In multi-party HCPs,

different parties may monitor different aspects of the HCP. The

Services must periodically review any monitoring program to confirm

that it is conducted according to their standards.

Monitoring Reports

The Services will streamline the reporting requirements for

monitoring program by requesting all reports in a single document. The

HCP, permit, or IA should specifically state the level of detail and

quantification needed in the monitoring report and tailor report due

dates to the activities conducted under the incidental take permit

(e.g., due at the end of a particular stage of the project or the

anniversary date of incidental take permit issuance). Most monitoring

programs require reports annually, usually due on the anniversary date

of incidental take permit issuance. Wherever possible, the Services

will coordinate the due dates with other reporting requirements (e.g.,

State reports) so the permittee can satisfy more than one reporting

requirement with a single report. The following represents the minimum

information frequently needed in a monitoring program and its reports:

1. Objectives for the monitoring program;

2. Effects on the covered species and/or habitat;

3. Location of sampling sites;

4. Methods for data collection and variables measured;

5. Frequency, timing, and duration of sampling for the variables;

6. Description of the data analysis and who conducted the analyses;

and

7. Evaluation of progress toward achieving measurable biological

goals and objectives and other terms and conditions as required by the

incidental take permit and/or IA.

These elements may be simplified for periods of no activity or low-

effect HCPs. If a required report is not submitted by the date

specified in the HCP or incidental take permit terms and conditions, or

is inadequate, the Services will notify the permittee. The Services

have discretion to offer the permittee an extension of time to

demonstrate compliance. The Services have examined this reporting

guidance under the Paperwork Reduction Act of 1995 and found that it

does not contain requests for additional information or an increase in

the collection requirements other than those already approved for

incidental take permits (OMB approval for FWS #1018-0094; for NMFS #

0648-0230).

Funding Monitoring Programs

The ESA and the section 10 regulations require that HCPs specify

the measures the permittee will adopt to ensure adequate funding for

the HCP. An HCP that does not contain an adequate funding commitment

from the applicant/permittee to support an acceptable monitoring

program should not be approved unless the HCP establishes alternative

funding mechanisms. The Services and the applicant should work together

to develop the monitoring program, and determine who will be

responsible for monitoring the various components of the HCP. Specific

monitoring tasks may be assigned to entities other than the permittee

(e.g., State or Tribal agencies) as long as the Services and parties

responsible for implementing the HCP approve of the monitoring

assignment. The terms of the HCP, incidental take permit, and IA may

contain funding mechanisms that provide for a public (e.g., local,

State, or Federal) or a private entity to conduct all or portions of

the monitoring. This funding mechanism must be agreed upon by the

Services and the parties responsible for implementing the HCP.

Permit Duration

Both FWS and NMFS regulations for incidental take permits outline

factors to consider when determining incidental take permit duration

(50 CFR 17.32 and 222.22). These factors include duration of the

applicant's proposed activities and the expected positive and negative

effects on covered species associated with the proposed duration

including the extent to which the operating conservation program will

increase the survivability of the listed species and/or enhance its

habitat. In determining the duration of an incidental take permit, the

Services will also consider the extent of scientific and commercial

data underlying the proposed operating conservation program for the

HCP, the length of time necessary to implement and achieve the benefits

of the operating conservation program, and the extent to which the

program incorporates adaptive management strategies.

To date, the Services have issued more than 200 incidental take

permits, varying in duration from one to 99 years. The average duration

of incidental take permits issued is 25 years; pending applications for

incidental take permits currently have an average requested duration of

30 years. The Services allow a range in incidental take permit duration

to account for both the varying biological impacts resulting from the

proposed

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activity (e.g., variations in the length of timber rotations and

treatments versus a real estate subdivision build out), and the nature

or scope of the permitted activity and operating conservation program

addressed in the HCP, permit, and/or IA (e.g., housing or commercial

developments versus long-term sustainable forestry; conservation

easements). Though not always applicable, small-scale HCPs are likely

to have short-term incidental take permits, whereas large-scale HCPs

are likely to have longer term incidental take permits because of the

time required to implement their operating conservation program and the

permittee's need for long-term assurances. Longer permits may also

ensure long-term commitments to the operating conservation program.

Public Participation

The Services intend to expand public participation in the HCP

process to provide greater opportunity for the public to assess,

review, and analyze HCPs and associated documents (e.g., National

Environmental Policy Act (NEPA) documents). As stated in the HCP

Handbook in Chapter 6.B, the Services currently require a minimum 30-

day public comment period for all HCP applications. However, the

Services recognize the concern of the public regarding an inadequate

time for the public comment period, especially for large-scale HCPs.

Therefore, the Services propose to expand the current comment period to

provide a 60-day public comment period for most HCPs. The exceptions to

a 60-day comment period would be those for low-effect HCPs and large

scale regional, or exceptionally complex HCPs. The Services believe the

current 30-day public comment period provides enough time to review

low-effect HCPs, which have a categorical exclusion from NEPA.

For large-scale, regional, or exceptionally complex HCPs, the

Services intend to expand the use of informational meetings and/or

advisory committees. In addition, the minimum comment period for these

HCPs is proposed to be 90 days, unless significant public participation

occurs during HCP development. With the extension of the public comment

periods, the recommended timeline targets for processing incidental

take permits are extended accordingly: The timeline to complete low

effect HCPs will remain up to three months; HCPs with an Environmental

Assessment (EA) will be four to six months; and HCPs with a 90-day

comment period and/or an Environmental Impact Statement (EIS) may be up

to 12 months.

During the public comment period, any member of the public may

review and comment on the HCP and the accompanying NEPA document, if

applicable. If an EIS is required, the public can also participate

during the scoping process. When practicable, the Services will seek to

announce the availability of HCPs in electronic format and in local

newspapers of general circulation. The Services will encourage

potential applicants to allow for public participation during the

development of an HCP, particularly if non-Federal public agencies

(e.g., State Fish and Wildlife agencies) are involved. Although the

development of an HCP is the applicant's responsibility, the Services

will encourage applicants for most large-scale, regional HCP efforts to

provide extensive opportunities for public involvement during the

planning and implementation process.

The Services recommend that applicants include Native American

tribes during the development of the HCP if tribal resources may be

affected. If an applicant chooses not to consult with Tribes, the

Services, under the Secretarial Order on Federal-Tribal trust

responsibilities and ESA, will consult with the affected Tribes to

evaluate the effects of the proposed HCP on Tribal trust resources and

will provide the information resulting from such consultation to the

HCP applicant prior to the submission of the draft HCP for public

comment, and will advocate the incorporation of measures that will

restore or enhance Tribal trust resources. After consultation with the

tribes and the non-federal landowner and after careful consideration of

the tribe's concerns, the Services will clearly state the rationale for

the recommended final decision and explain how the decision relates to

the Services' trust responsibility.

Public Comments Solicited

The Services will issue a final Addendum to the HCP Handbook based

upon consideration of information and recommendations received from all

interested parties. Therefore, the Services are soliciting comments,

recommendations, or suggestions from the public, other concerned

government agencies, the scientific community, industry, or any other

interested party about this Draft Addendum.

Authority

The authority for this action is the Endangered Species Act of

1973, as amended (16 U.S.C. 1531 et seq.).

Dated: November 2, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

Dated: January 28, 1999.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

[FR Doc. 99-5737 Filed 3-8-99; 8:45 am]

BILLING CODE 4310-55-P; 3510-22-P