Joint U.S. Fish and Wildlife Service and National Marine Fisheries Service Habitat Conservation Planning Handbook, 93702-93704 [2016-30673]
Download as PDF
93702
Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Notices
HUD ONAP regions. Up to three
remaining tribal members will serve atlarge.
The Secretary will appoint the
members of the TIAC. TIAC tribal
delegates will serve a term of 2 years. To
ensure continuity between tribal terms,
delegates will have a staggered term of
appointment. In order to establish a
staggered term of appointment, half of
the tribal members appointed in the
inaugural year of the TIAC will serve 2
years and the other half will serve 3
years. Delegates must designate their
preference to serve 2 or 3 years;
however, HUD will make the final
determination on which members will
serve for 3 years. Once these members
complete these initial terms, all future
committee members will serve two-year
terms. Should a member’s tenure as a
tribal leader come to an end during their
appointment to the TIAC, the member’s
tribe may nominate a replacement.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
E. Objective of the TIAC
The establishment of the TIAC is
intended to enhance government-togovernment relationships,
communications, and mutual
cooperation between HUD and tribal
governments and is not intended to, and
will not, create any right to
administrative or judicial review, or any
other right or benefit or trust
responsibility, substantive or
procedural, enforceable by a party
against the United States, its agencies or
instrumentalities, its officers or
employees, or any other persons.
III. Request for Nominations
The Committee will be composed of
up to six HUD officials and up to fifteen
tribal representatives. Up to two tribal
members will represent each of the six
HUD ONAP regions. The three
remaining tribal members will serve atlarge. Only duly elected or appointed
tribal leaders may serve as tribal
members of the TIAC. Once appointed
to the TIAC, tribal leaders may
designate an alternate who is a tribal
employee and has the authority to act
on his or her behalf. One of the tribal
members will be selected by the
Committee to serve as the chairperson.
If you are interested in serving as a
member of the Committee or in
nominating another person to serve as a
member of the Committee, you may
submit a nomination to HUD in
accordance with the ADDRESSES section
of this notice. Your nomination for
membership on the Committee must
include:
1. The name of your nominee, a
description of the interests the nominee
would represent, and a description of
VerDate Sep<11>2014
18:38 Dec 20, 2016
Jkt 241001
the nominee’s experience and interest in
American Indian and Alaska Native
housing and community development
matters;
2. Evidence that your nominee is a
duly elected or appointed tribal leader
and is authorized to represent a tribal
government;
3. A written commitment from the
nominee that she or he will actively
participate in good faith in the
Committee meetings; and
4. A written preference for serving
either a two- or a three-year term on the
TIAC.
HUD will appoint the members of the
TIAC from the pool of nominees
requested by this notice. HUD will
announce its final selections for TIAC
membership in a future Federal Register
notice. Members will be selected based
on proven experience and interest in
AIAN housing and community
development matters, and whether the
interest of the proposed member could
be represented adequately by other
members.
In addition to the criteria above, atlarge members will be selected based on
their ability to represent specific
interests that might not be represented
by the selected regional members.
Dated: December 16, 2016.
´
Julian Castro,
Secretary.
[FR Doc. 2016–30744 Filed 12–20–16; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[Docket No. FWS–HQ–ES–2016–0004]
RIN 0648–XE423
Joint U.S. Fish and Wildlife Service
and National Marine Fisheries Service
Habitat Conservation Planning
Handbook
Fish and Wildlife Service,
Interior; National Marine Fisheries
Service, National Oceanic and
Atmospheric Administration,
Commerce.
ACTION: Notice of availability.
AGENCY:
We, the U.S. Fish and
Wildlife Service and the National
Marine Fisheries Service (Services),
announce the availability of the final
revised Habitat Conservation Planning
SUMMARY:
PO 00000
Frm 00048
Fmt 4703
Sfmt 4703
(HCP) Handbook, which describes
requirements, procedures, and guidance
for permit issuance and conservation
plan development for incidental take
permits under the Endangered Species
Act. The purpose of the newly revised
joint HCP Handbook is to instruct the
Services on how to assist applicants to
develop HCPs in an efficient and
effective manner, while ensuring
adequate conservation of listed species.
Although the Handbook is designed for
the Services, it also can be useful to
other HCP practitioners, such as
applicants, consultants, and partners.
FOR FURTHER INFORMATION CONTACT:
Trish Adams, U.S. Fish and Wildlife
Service (phone: 703–358–2120; email:
trish_adams@fws.gov), or Maggie Miller,
National Marine Fisheries Service
(phone: 301–427–8457; email:
Margaret.h.miller@noaa.gov). People
who use a Telecommunications Device
for the Deaf (TDD) may call the Federal
Relay Service (FIRS) at 1–800–877–
8339, 24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
Introduction
We, the U.S. Fish and Wildlife
Service (FWS) and the National Marine
Fisheries Service (NMFS) (together, the
Services), announce the availability of
the final revised Habitat Conservation
Planning (HCP) Handbook, a joint
handbook that describes requirements,
procedures, and guidance for permit
issuance and conservation plan
development for incidental take permits
under section 10(a)(1)(B) of the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.; ESA).
The Services issue these ESA section
10(a)(1)(B) incidental take permits and
help applicants develop conservation
plans as a prerequisite to obtaining
these permits.
The original HCP Handbook was
made available via a Federal Register
notice on December 2, 1996 (61 FR
63854), and was subsequently revised
by addendum, effective July 3, 2000 (65
FR 35242; June 1, 2000). On June 28,
2016, we opened a 60-day comment
period for a draft revised joint HCP
Handbook, announcing it via the
Federal Register (81 FR 41986). During
that comment period, we received 54
public comments. We now announce
the final revised joint HCP Handbook,
which is intended to be more
streamlined and user friendly than
previous editions. It presents and
provides guidance on the HCP process
from start to finish.
Document Availability
The final joint HCP Handbook is
available at: https://www.fws.gov/
E:\FR\FM\21DEN1.SGM
21DEN1
Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Notices
endangered/esa-library/pdf/HCP_
Handbook.pdf (FWS) and https://
www.nmfs.noaa.gov/pr/laws/esa/
policies.htm (NMFS).
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Background
The purpose of the ESA is to protect
and recover threatened and endangered
species and the ecosystems on which
they depend. Section 9 of the ESA
prohibits ‘‘take’’ of any fish or wildlife
species listed as endangered. In
addition, take of many species listed as
threatened is prohibited by regulation.
‘‘Take’’ is defined in ESA section 3 as
‘‘to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or
to attempt to engage in any such
conduct.’’ Before 1982, the ESA had a
mechanism for exempting Federal
actions (section 7) from the prohibition
on ‘‘take’’; however, it did not have one
for non-Federal activities, except for
permits to authorize ‘‘take’’ from
scientific research or certain other
conservation actions. Thus, non-Federal
parties engaging in activities that might
result in ‘‘take’’ of listed species risked
violating ESA section 9 take
prohibitions. Congress recognized the
need for a process to reduce conflicts
between protection of listed species and
economic development, so it amended
the ESA in 1982 to add an exemption
for ‘‘incidental take’’ of listed species
that would result from non-Federal
activities (section 10(a)(1)(B)).
‘‘Incidental take’’ is that which is
incidental to, and not the purpose of,
carrying out an otherwise lawful
activity. To obtain a permit under ESA
section 10(a)(1)(B), applicants must
develop a conservation plan that meets
specific requirements identified in ESA
section 10 and its regulations (50 CFR
17.22 and 17.32; 50 CFR 222.25, 222.27,
and 222.31). Among other requirements,
the plan must specify (1) the impacts
that are likely to result from ‘‘incidental
take’’ and (2) the measures that the
permit applicant will undertake to
minimize and mitigate such impacts.
Conservation plans under section
10(a)(1)(B) have come to be known as
habitat conservation plans (HCPs). ESA
section 10(a)(2)(B) provides statutory
criteria that must be satisfied before the
Services can issue an incidental take
permit.
HCP Handbook Purpose
The purpose of the joint HCP
Handbook is to instruct the Services on
how to assist applicants to develop
HCPs in an efficient and effective
manner while ensuring adequate
conservation of listed species. The HCP
Handbook guides Services staff, phase
by phase, through development,
VerDate Sep<11>2014
18:38 Dec 20, 2016
Jkt 241001
implementation, and environmental
compliance, using streamlined
approaches whenever possible. It draws
on past experience to help staff
understand regulations and policy and
navigate the various processes for
completing an HCP and issuing a
permit. Although the joint HCP
Handbook is designed specifically for
Services staff, it also can be helpful to
other HCP practitioners, such as
applicants, consultants, and partners.
Summary of Changes From the 1996
Version of the HCP Handbook
The final revised HCP Handbook
reflects current FWS and NMFS HCP
practices, guidance, and policies;
incorporates lessons from implementing
the HCP program over the past 30 years;
and provides guidance to assist
applicants and the Services to avoid
common pitfalls that can delay HCP
negotiations and development or
processing of incidental take permits.
The goal is to provide a joint HCP
Handbook that helps streamline the
process and improve efficiency of the
HCP program. To accomplish this, we
reorganized the HCP Handbook so that
it walks Services staff and stakeholders
through each part of the HCP process,
from the pre-application stage through
incidental take permit issuance and
HCP implementation through
monitoring and compliance.
Some of the most significant changes
we made include the following:
(1) Introduced the concept that
applicants should ‘‘go fast by starting
slowly,’’ which emphasizes the benefits
to applicants of thorough pre-planning
before jumping directly into HCP
development, especially for landscapelevel HCPs.
(2) Focused on the vital review and
administrative steps without
compromising legal integrity, in order to
help streamline the process.
(3) Clarified the concept of
minimizing and mitigating the impacts
of taking ‘‘to the maximum extent
practicable.’’
(4) Ensured consistency with the most
recent policies, such as the revised FWS
Mitigation Policy, which was
announced via a Federal Register notice
on November 21, 2016.
(5) Clarified the use of implementing
agreements.
(6) Updated and clarified permit
duration.
(7) Provided guidance on how to
comply with section 106 of the National
Historic Preservation Act of 1966 (54
U.S.C. 300101 et seq.).
(8) Provided guidance on addressing
climate change.
PO 00000
Frm 00049
Fmt 4703
Sfmt 4703
93703
(9) Updated and clarified what should
be addressed through adaptive
management versus changed and
unforeseen circumstances.
(10) Provided guidance on when to
initiate the National Environmental
Policy Act (42 U.S.C. 4321 et seq.)
process and intra-Service ESA section 7
consultations, and when to seek
assistance from the Solicitor or General
Counsel.
(11) Updated and clarified
information concerning take analysis,
responding to public comments, public
notices, permit decision documents,
compliance monitoring, and incidental
take permit suspension and revocation.
Final Revisions Made to Draft
Handbook and Reponses to Comments
We published a notice of availability
and request for public comment on our
draft joint HCP Handbook in the Federal
Register on June 28, 2016 (81 FR 41986).
There was a 60-day comment period
ending August 29, 2016, during which
we received 54 comments. We received
very complex, thoughtful, and often
very detailed comments. Below are our
responses to the most frequent
comments and those that potentially
could be controversial. After
considering public comments, we
clarified language in the Handbook
based on the input we received.
Comment 1: We received several
comments requesting an extension of
the 60-day comment period.
Response 1: We believe that 60 days
was sufficient to allow for public input
by interested parties on the draft revised
HCP Handbook, as the quantity and
quality of the substantive comments the
Services received attest. Another reason
we think the comment period was of
sufficient length is that we are
developing a revision to an existing
Handbook rather than an entirely new
product; this revised Handbook largely
provides additional information that
clarifies the original Handbook.
Comment 2: The draft HCP Handbook
is repetitive and too complex for an
applicant or project proponent.
Response 2: We have taken steps in
the final editing process to cut down on
the repetitive nature of the HCP
Handbook, and we have also crossreferenced sections. However, our target
audience is internal Services HCP staff
rather than the general public. We
recommend that applicants coordinate
with local field offices for more specific
detail and advice or guidance on their
specific project needs before developing
their HCPs.
Comment 3: The Services have
provided a new standard for
minimization and mitigation that is
E:\FR\FM\21DEN1.SGM
21DEN1
asabaliauskas on DSK3SPTVN1PROD with NOTICES
93704
Federal Register / Vol. 81, No. 245 / Wednesday, December 21, 2016 / Notices
inconsistent with the requirements of
the ESA.
Response 3: Some commenters took
issue with the explanations in the
Handbook, particularly in Chapter 9, of
the ESA requirement that applicants
must ‘‘to the maximum extent
practicable, minimize and mitigate the
impacts of’’ permitted taking. Some
commenters interpreted these
explanations and related discussions of
the concept of ‘‘fully offset,’’ as creating
an alternative or substitute for the ESA’s
statutory ‘‘maximum extent practicable’’
standard. However, the Handbook
explains the ESA standard and clarifies
the discussion that was in the 1996
Handbook. It does not establish a new
or alternative standard for minimization
and mitigation.
We acknowledge that the manner in
which this topic was presented in the
draft may be confusing. Therefore, we
have modified the language to provide
clearer guidance that is consistent with
the ESA’s ‘‘maximum extent
practicable’’ standard. We have also
revised the language to better explain
how applicants can meet the ESA’s
‘‘maximum extent practicable’’
standard.
Comment 4: The guidance on climate
change in the Handbook goes too far.
Applicants should not have to come up
with complex models or complex global
climate change scenarios.
Response 4: We have clarified that
climate change effects that could impact
the applicant’s proposed conservation
strategy and the durability of mitigation
should be considered in the HCP. In
addition, we changed all references of
‘‘climate change’’ to ‘‘climate change
effects,’’ in order to reduce confusion.
Furthermore, applicants are not
responsible for addressing climate
change at a global scale.
Regarding the comments concerning
complex modeling, we suggest the use
of various models to help applicants
consider the effects of climate change
while developing their conservation
strategy. The Handbook does not impose
a requirement to use specific models.
Comment 5: The draft HCP Handbook
undermines the ‘‘No Surprises’’ rule.
Response 5: One of our main goals
with this HCP Handbook revision was to
incorporate lessons learned throughout
our 30 years of program implementation
in order to better address the possibility
of changed or unforeseen circumstances
by using tools such as adaptive
management and better advance
planning. With ‘‘No Surprises,’’ State
and private landowners are assured that
if ‘‘unforeseen circumstances’’ arise, the
Services will not require the
commitment of additional activities or
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18:38 Dec 20, 2016
Jkt 241001
additional restrictions beyond the level
otherwise agreed to in the HCP without
the consent of the permit holder.
The Handbook does not change or
undermine the ‘‘no surprises’’ rule, but
rather it encourages applicants to
consider a robust list of potential
changed and unforeseen circumstances
that could arise during the permit term.
This will ensure successful
implementation of the HCP and help to
ensure that the conservation strategy
and mitigation plan will endure in
perpetuity, as required by the incidental
take permit issuance criteria. We have
provided clarifying language regarding
the ‘‘No Surprises’’ rule.
Comment 6: The term ‘‘mitigation’’ is
used throughout the Handbook, and
there is no clear description about what
mitigation actually means.
Response 6: The Handbook treats
mitigation in a manner consistent with
the requirements and legal authorities
provided by the ESA. We acknowledge
that our use of the term ‘‘mitigation’’ in
the draft was sometimes confusing. We
have clarified our treatment of the ESA
section 10 mitigation requirements and
also provided additional background,
including the definition of mitigation
and general principles of Federal
mitigation policy as described in the
November 3, 2015, Presidential
Memorandum on mitigation. These
clarifications can be found primarily in
Chapter 9.
Comment 7: Please clarify whether
the HCP Handbook is guidance or
policy.
Response 7: The HCP Handbook is a
Services guidance document that
includes reference to respective agency
policies (and citations) where
appropriate.
Comment 8: Contrary to the
statements in the Handbook, the
Services cannot require that all ESAlisted species that applicants expect
they may take from proposed covered
activities be covered by the HCP and
incidental take permit. The Services
should clarify that it is up to applicants
to decide which species to include as
covered species.
Comment 8: Ultimately, it is the
Services who determine if the
applicant’s incidental take permit
application is complete. If the
application does not include all of the
ESA-listed wildlife species that we are
reasonably certain may be taken as a
result of the covered activities, then the
Services would consider the application
incomplete. Therefore, to ensure the
applicant provides a complete
incidental take permit application, the
revised final version of the Handbook
states, ‘‘The Services require applicants
PO 00000
Frm 00050
Fmt 4703
Sfmt 4703
to include as HCP-covered species all
ESA-listed wildlife species for which
incidental take is reasonably certain to
occur, unless take is addressed through
a separate ESA mechanism (e.g., section
7 consultation with another Federal
agency, separate incidental take permit,
etc.), or to explain or demonstrate in the
HCP why the applicant does not
anticipate take or will avoid take during
implementation of covered activities
(e.g., inclusion of measures that will
avoid potential for take).’’ In the view of
the Services, this best reflects the
language, structure, and congressional
purposes of ESA section 10 and the ESA
as a whole. In addition, it is important
to note that section 9 prohibitions make
it illegal for any person subject to the
jurisdiction of the United States to take
any wildlife species listed as
endangered (and threatened through
FWS regulations), without written
authorization.
Authority: 16 U.S.C. 1531 et seq.
Dated: December 7, 2016.
James W. Kurth,
Acting Director, U.S. Fish and Wildlife
Service.
Dated: December 8, 2016
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2016–30673 Filed 12–20–16; 8:45 am]
BILLING CODE P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS–HQ–R–2016–N214];
[FXGO1664091HCC0–FF09D00000–178]
Wildlife and Hunting Heritage
Conservation Council; Public Meeting
Fish and Wildlife Service,
Interior.
ACTION: Notice of meeting.
AGENCY:
We, the U.S. Fish and
Wildlife Service, announce a public
meeting of the Wildlife and Hunting
Heritage Conservation Council
(Council). The Council provides advice
about wildlife and habitat conservation
endeavors that benefit wildlife
resources; encourage partnership among
the public, sporting conservation
organizations, States, Native American
tribes, and the Federal Government; and
benefit recreational hunting.
DATES: Meeting: Tuesday, February 7,
2017, from 10:30 a.m. to 5 p.m., and
Wednesday, February 8, 2017, from 8
a.m. to 1 p.m. (Eastern Standard Time).
For deadlines and directions on
SUMMARY:
E:\FR\FM\21DEN1.SGM
21DEN1
Agencies
[Federal Register Volume 81, Number 245 (Wednesday, December 21, 2016)]
[Notices]
[Pages 93702-93704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30673]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. FWS-HQ-ES-2016-0004]
RIN 0648-XE423
Joint U.S. Fish and Wildlife Service and National Marine
Fisheries Service Habitat Conservation Planning Handbook
AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, Commerce.
ACTION: Notice of availability.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service (Services), announce the availability of the final
revised Habitat Conservation Planning (HCP) Handbook, which describes
requirements, procedures, and guidance for permit issuance and
conservation plan development for incidental take permits under the
Endangered Species Act. The purpose of the newly revised joint HCP
Handbook is to instruct the Services on how to assist applicants to
develop HCPs in an efficient and effective manner, while ensuring
adequate conservation of listed species. Although the Handbook is
designed for the Services, it also can be useful to other HCP
practitioners, such as applicants, consultants, and partners.
FOR FURTHER INFORMATION CONTACT: Trish Adams, U.S. Fish and Wildlife
Service (phone: 703-358-2120; email: trish_adams@fws.gov), or Maggie
Miller, National Marine Fisheries Service (phone: 301-427-8457; email:
Margaret.h.miller@noaa.gov). People who use a Telecommunications Device
for the Deaf (TDD) may call the Federal Relay Service (FIRS) at 1-800-
877-8339, 24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
Introduction
We, the U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) (together, the Services), announce the
availability of the final revised Habitat Conservation Planning (HCP)
Handbook, a joint handbook that describes requirements, procedures, and
guidance for permit issuance and conservation plan development for
incidental take permits under section 10(a)(1)(B) of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.; ESA). The
Services issue these ESA section 10(a)(1)(B) incidental take permits
and help applicants develop conservation plans as a prerequisite to
obtaining these permits.
The original HCP Handbook was made available via a Federal Register
notice on December 2, 1996 (61 FR 63854), and was subsequently revised
by addendum, effective July 3, 2000 (65 FR 35242; June 1, 2000). On
June 28, 2016, we opened a 60-day comment period for a draft revised
joint HCP Handbook, announcing it via the Federal Register (81 FR
41986). During that comment period, we received 54 public comments. We
now announce the final revised joint HCP Handbook, which is intended to
be more streamlined and user friendly than previous editions. It
presents and provides guidance on the HCP process from start to finish.
Document Availability
The final joint HCP Handbook is available at: https://www.fws.gov/
[[Page 93703]]
endangered/esa-library/pdf/HCP_Handbook.pdf (FWS) and https://www.nmfs.noaa.gov/pr/laws/esa/policies.htm (NMFS).
Background
The purpose of the ESA is to protect and recover threatened and
endangered species and the ecosystems on which they depend. Section 9
of the ESA prohibits ``take'' of any fish or wildlife species listed as
endangered. In addition, take of many species listed as threatened is
prohibited by regulation. ``Take'' is defined in ESA section 3 as ``to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct.'' Before 1982,
the ESA had a mechanism for exempting Federal actions (section 7) from
the prohibition on ``take''; however, it did not have one for non-
Federal activities, except for permits to authorize ``take'' from
scientific research or certain other conservation actions. Thus, non-
Federal parties engaging in activities that might result in ``take'' of
listed species risked violating ESA section 9 take prohibitions.
Congress recognized the need for a process to reduce conflicts between
protection of listed species and economic development, so it amended
the ESA in 1982 to add an exemption for ``incidental take'' of listed
species that would result from non-Federal activities (section
10(a)(1)(B)). ``Incidental take'' is that which is incidental to, and
not the purpose of, carrying out an otherwise lawful activity. To
obtain a permit under ESA section 10(a)(1)(B), applicants must develop
a conservation plan that meets specific requirements identified in ESA
section 10 and its regulations (50 CFR 17.22 and 17.32; 50 CFR 222.25,
222.27, and 222.31). Among other requirements, the plan must specify
(1) the impacts that are likely to result from ``incidental take'' and
(2) the measures that the permit applicant will undertake to minimize
and mitigate such impacts. Conservation plans under section 10(a)(1)(B)
have come to be known as habitat conservation plans (HCPs). ESA section
10(a)(2)(B) provides statutory criteria that must be satisfied before
the Services can issue an incidental take permit.
HCP Handbook Purpose
The purpose of the joint HCP Handbook is to instruct the Services
on how to assist applicants to develop HCPs in an efficient and
effective manner while ensuring adequate conservation of listed
species. The HCP Handbook guides Services staff, phase by phase,
through development, implementation, and environmental compliance,
using streamlined approaches whenever possible. It draws on past
experience to help staff understand regulations and policy and navigate
the various processes for completing an HCP and issuing a permit.
Although the joint HCP Handbook is designed specifically for Services
staff, it also can be helpful to other HCP practitioners, such as
applicants, consultants, and partners.
Summary of Changes From the 1996 Version of the HCP Handbook
The final revised HCP Handbook reflects current FWS and NMFS HCP
practices, guidance, and policies; incorporates lessons from
implementing the HCP program over the past 30 years; and provides
guidance to assist applicants and the Services to avoid common pitfalls
that can delay HCP negotiations and development or processing of
incidental take permits.
The goal is to provide a joint HCP Handbook that helps streamline
the process and improve efficiency of the HCP program. To accomplish
this, we reorganized the HCP Handbook so that it walks Services staff
and stakeholders through each part of the HCP process, from the pre-
application stage through incidental take permit issuance and HCP
implementation through monitoring and compliance.
Some of the most significant changes we made include the following:
(1) Introduced the concept that applicants should ``go fast by
starting slowly,'' which emphasizes the benefits to applicants of
thorough pre-planning before jumping directly into HCP development,
especially for landscape-level HCPs.
(2) Focused on the vital review and administrative steps without
compromising legal integrity, in order to help streamline the process.
(3) Clarified the concept of minimizing and mitigating the impacts
of taking ``to the maximum extent practicable.''
(4) Ensured consistency with the most recent policies, such as the
revised FWS Mitigation Policy, which was announced via a Federal
Register notice on November 21, 2016.
(5) Clarified the use of implementing agreements.
(6) Updated and clarified permit duration.
(7) Provided guidance on how to comply with section 106 of the
National Historic Preservation Act of 1966 (54 U.S.C. 300101 et seq.).
(8) Provided guidance on addressing climate change.
(9) Updated and clarified what should be addressed through adaptive
management versus changed and unforeseen circumstances.
(10) Provided guidance on when to initiate the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) process and intra-
Service ESA section 7 consultations, and when to seek assistance from
the Solicitor or General Counsel.
(11) Updated and clarified information concerning take analysis,
responding to public comments, public notices, permit decision
documents, compliance monitoring, and incidental take permit suspension
and revocation.
Final Revisions Made to Draft Handbook and Reponses to Comments
We published a notice of availability and request for public
comment on our draft joint HCP Handbook in the Federal Register on June
28, 2016 (81 FR 41986). There was a 60-day comment period ending August
29, 2016, during which we received 54 comments. We received very
complex, thoughtful, and often very detailed comments. Below are our
responses to the most frequent comments and those that potentially
could be controversial. After considering public comments, we clarified
language in the Handbook based on the input we received.
Comment 1: We received several comments requesting an extension of
the 60-day comment period.
Response 1: We believe that 60 days was sufficient to allow for
public input by interested parties on the draft revised HCP Handbook,
as the quantity and quality of the substantive comments the Services
received attest. Another reason we think the comment period was of
sufficient length is that we are developing a revision to an existing
Handbook rather than an entirely new product; this revised Handbook
largely provides additional information that clarifies the original
Handbook.
Comment 2: The draft HCP Handbook is repetitive and too complex for
an applicant or project proponent.
Response 2: We have taken steps in the final editing process to cut
down on the repetitive nature of the HCP Handbook, and we have also
cross-referenced sections. However, our target audience is internal
Services HCP staff rather than the general public. We recommend that
applicants coordinate with local field offices for more specific detail
and advice or guidance on their specific project needs before
developing their HCPs.
Comment 3: The Services have provided a new standard for
minimization and mitigation that is
[[Page 93704]]
inconsistent with the requirements of the ESA.
Response 3: Some commenters took issue with the explanations in the
Handbook, particularly in Chapter 9, of the ESA requirement that
applicants must ``to the maximum extent practicable, minimize and
mitigate the impacts of'' permitted taking. Some commenters interpreted
these explanations and related discussions of the concept of ``fully
offset,'' as creating an alternative or substitute for the ESA's
statutory ``maximum extent practicable'' standard. However, the
Handbook explains the ESA standard and clarifies the discussion that
was in the 1996 Handbook. It does not establish a new or alternative
standard for minimization and mitigation.
We acknowledge that the manner in which this topic was presented in
the draft may be confusing. Therefore, we have modified the language to
provide clearer guidance that is consistent with the ESA's ``maximum
extent practicable'' standard. We have also revised the language to
better explain how applicants can meet the ESA's ``maximum extent
practicable'' standard.
Comment 4: The guidance on climate change in the Handbook goes too
far. Applicants should not have to come up with complex models or
complex global climate change scenarios.
Response 4: We have clarified that climate change effects that
could impact the applicant's proposed conservation strategy and the
durability of mitigation should be considered in the HCP. In addition,
we changed all references of ``climate change'' to ``climate change
effects,'' in order to reduce confusion. Furthermore, applicants are
not responsible for addressing climate change at a global scale.
Regarding the comments concerning complex modeling, we suggest the
use of various models to help applicants consider the effects of
climate change while developing their conservation strategy. The
Handbook does not impose a requirement to use specific models.
Comment 5: The draft HCP Handbook undermines the ``No Surprises''
rule.
Response 5: One of our main goals with this HCP Handbook revision
was to incorporate lessons learned throughout our 30 years of program
implementation in order to better address the possibility of changed or
unforeseen circumstances by using tools such as adaptive management and
better advance planning. With ``No Surprises,'' State and private
landowners are assured that if ``unforeseen circumstances'' arise, the
Services will not require the commitment of additional activities or
additional restrictions beyond the level otherwise agreed to in the HCP
without the consent of the permit holder.
The Handbook does not change or undermine the ``no surprises''
rule, but rather it encourages applicants to consider a robust list of
potential changed and unforeseen circumstances that could arise during
the permit term. This will ensure successful implementation of the HCP
and help to ensure that the conservation strategy and mitigation plan
will endure in perpetuity, as required by the incidental take permit
issuance criteria. We have provided clarifying language regarding the
``No Surprises'' rule.
Comment 6: The term ``mitigation'' is used throughout the Handbook,
and there is no clear description about what mitigation actually means.
Response 6: The Handbook treats mitigation in a manner consistent
with the requirements and legal authorities provided by the ESA. We
acknowledge that our use of the term ``mitigation'' in the draft was
sometimes confusing. We have clarified our treatment of the ESA section
10 mitigation requirements and also provided additional background,
including the definition of mitigation and general principles of
Federal mitigation policy as described in the November 3, 2015,
Presidential Memorandum on mitigation. These clarifications can be
found primarily in Chapter 9.
Comment 7: Please clarify whether the HCP Handbook is guidance or
policy.
Response 7: The HCP Handbook is a Services guidance document that
includes reference to respective agency policies (and citations) where
appropriate.
Comment 8: Contrary to the statements in the Handbook, the Services
cannot require that all ESA-listed species that applicants expect they
may take from proposed covered activities be covered by the HCP and
incidental take permit. The Services should clarify that it is up to
applicants to decide which species to include as covered species.
Comment 8: Ultimately, it is the Services who determine if the
applicant's incidental take permit application is complete. If the
application does not include all of the ESA-listed wildlife species
that we are reasonably certain may be taken as a result of the covered
activities, then the Services would consider the application
incomplete. Therefore, to ensure the applicant provides a complete
incidental take permit application, the revised final version of the
Handbook states, ``The Services require applicants to include as HCP-
covered species all ESA-listed wildlife species for which incidental
take is reasonably certain to occur, unless take is addressed through a
separate ESA mechanism (e.g., section 7 consultation with another
Federal agency, separate incidental take permit, etc.), or to explain
or demonstrate in the HCP why the applicant does not anticipate take or
will avoid take during implementation of covered activities (e.g.,
inclusion of measures that will avoid potential for take).'' In the
view of the Services, this best reflects the language, structure, and
congressional purposes of ESA section 10 and the ESA as a whole. In
addition, it is important to note that section 9 prohibitions make it
illegal for any person subject to the jurisdiction of the United States
to take any wildlife species listed as endangered (and threatened
through FWS regulations), without written authorization.
Authority: 16 U.S.C. 1531 et seq.
Dated: December 7, 2016.
James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
Dated: December 8, 2016
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2016-30673 Filed 12-20-16; 8:45 am]
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