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United States Department of the Interior

FISH AND WILDLIFE SERVICE

***[\[ FWO name and address\]]{.mark}***

In reply refer to:

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*\*\*\* NEEDS CORRECT SPACING IN FINALIZATION*

Dear \_[\_\_\_\_\_\_\_\_\_\_\_\_]{.mark}\_\_,

As you may be aware, the Council of Environmental Quality's Implementing
Regulations for the National Environmental Policy Act require that third
parties preparing an environmental Impact Statement (EIS) for a federal
agency "shall execute a disclosure statement prepared by the lead
agency\... specifying that they no financial or other special interest
in the outcome of the project" (40 *Code of Federal Regulation* 1505.5
(c)).

In an effort to meet this requirement, we are requesting the company
official responsible for the preparation of the EIS for the *[\[name of
the HCP\]]{.mark}* Habitat Conservation Plan sign the following
disclosure statement. Failure to sign the necessary disclosure statement
may result in the U.S. Fish and Wildlife Service (Service) being unable
to accept the EIS document for processing the project incidental take
permit application.

In addition, if your company has been involved in developing initial
data or plans for the project, on a separate sheet please state the
scope and extent of this prior involvement. Such work in itself does not
disqualify your company from preparing the EIS, but must be disclosed.

[Also, in order to address issues with an incidental take permit
Applicant paying for the preparation of the EIS, we have developed a
Statement of Responsibilities (Agreement). We believe this Agreement
clearly describes the roles and responsibilities of the Service,
*\[NOAA, Fisheries\]*, *\[the Applicant\]*, *\[the Lead CEQA Agency\],*
and your firm in regards to EIS preparation. ***\[Optional paragraph;
use only if using Statement of Responsibilities\]***]{.mark}

If you have questions regarding this letter, the disclosure statement,
[or the Agreement]{.mark} please contact
[\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, of my staff, at
\_\_\_\_\_\_\_\_\_\_\_\_\_]{.mark}.

Sincerely,

*[\[FS, DFS, or AFS\]]{.mark}*

Attachments ([\_\_]{.mark})

**DISCLOSURE STATEMENT**

for *[\[Consulting firm\]]{.mark}* concerning the preparation of the EIS

for the *[\[Applicant name or name of HCP\]]{.mark}* HCP

I, \_*[\[responsible official\]]{.mark}*\_\_\_, of [*[\[Consulting
firm\]]{.mark}*]{.underline} have made inquiry and to the best of my
knowledge and belief declare that executing the contracted work of
preparing the Environmental Impact Statement (EIS) for the *[\[name of
HCP\]]{.mark}* Habitat Conservation Plan does not represent an actual or
potential conflict of interest and *[[\[Consulting
firm\]]{.underline}]{.mark}* does not have any financial or other
interest in the outcome of this project.

I understand the term "conflict of interest" to mean that because of
other activities or relationships with other persons, the contractor is
unable or potentially unable to render impartial assistance or advice to
the Government, or the contractor's objectivity in performing the
contract work is or might be otherwise impaired, or the contractor may
have an unfair competitive advantage. I understand the phrase "no
financial or other special interest in the outcome of the project" to
include any financial benefits such as a promise of future construction
or design work on the project, as well as indirect benefits the
consultant is aware of other than the enhancement of the contractor's
professional reputation.

Signed:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

*[\[name\]]{.mark}*

Employers name:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Address:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Phone number:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**STATEMENT OF RESPONSIBILITIES**

**REGARDING PREPARATION OF EIS**

**FOR THE *\[Applicant(s) Name or Name of\]* HCP**

A. [Purpose]{.underline}

1\. THIS STATEMENT OF RESPONSIBILITIES (Agreement) is between
*\[Applicant(s) Name and statute(s) under which the applicant is
organized and operates, e.g., a public agency existing under and by
virtue of ..... statutes of the State of \...\]*, hereinafter referred
to as "\_\_\_\_\_\_\_\_\_\_\_\_\_", the National Marine Fisheries
Service "NOAA Fisheries," the United States Fish and Wildlife Service
"USFWS" and *\[Consulting Firm\]*, hereinafter referred to as
"Contractor." The *\[Applicant\]* and USFWS, are hereinafter referred to
collectively as the "Lead Agencies." NOAA Fisheries is a Cooperating
Agency.

2\. The *\[Applicant(s)\]* is developing a Habitat Conservation Plan in
*\[name of project or planning area, and County\]* and intends to apply
to the USFWS and NOAA Fisheries for permits under Section 10(a)(1)(B) of
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)
(ESA).

3\. The USFWS and NOAA Fisheries have determined that an Environment
Impact Statement (EIS) must be prepared pursuant to the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) (NEPA). This
process is necessary prior to making a decision on the Section 10 permit
action for the *\[Name of HCP\]*, in accordance with 50 CFR parts 13,
17.22, 17.32, and 222.307. The EIS must comply with all provisions of
NEPA and all implementing regulations for both federal agencies.

4\. An EIS can be prepared by the USFWS and NOAA Fisheries or a
consultant acting under the direction of the USFWS and NOAA Fisheries in
accordance with 40 CFR 1506.5(c) and 516 DM 6, Appendix 1.3. When a
consultant prepares an EIS, the consultant shall prepare a disclosure
statement for inclusion in the draft and final EIS to ensure the
avoidance of any conflict of interest.

5\. The Contractor reports directly to the *\[Divsion Chief, or Asst
Field Supv, etc\]* of USFWS in the *\[name of FWO\]*, and the
Supervisor, Protected Resources Division*, \[name of office\]* of NOAA
Fisheries. The requirements of 40 CRF 1506.5(c) relating to conflicts of
interest must be followed.

6\. The Lead Agencies require services for the preparation of the
*\[Name of HCP\]* HCP EIS; and the Contractor is willing to perform
these services pursuant to the terms and conditions set out in this
Agreement.

7\. It is the purpose of this Agreement to establish an understanding
between the parties regarding the procedures to be followed and the
responsibilities of the parties in the preparation of the EIS.

B. [Requirements for Preparation of the EIS]{.underline}

1\. *General Requirements.* A number of requirements are set forth in 40
CFR 1500-1508, Council on Environmental Quality (CEQ) Regulations for
Implementing the Procedural Provisions of NEPA relating to USFWS and
NOAA Fisheries compliance with NEPA for their own actions. Additional
requirements are set forth in 516 DM 1-6, Department of the Interior's
(Departmental) Manual, 032 FW 5, Fish and Wildlife Service Manual, and
550 FW 1-2, relating to USFWS compliance with NEPA for its own actions,
including the preparation of a joint permit EIS by a consultant chosen
by the Lead Agencies, and in the Department of Commerce (DOC) Department
Administrative Order (DOA) 216-6 Implementing the National Environmental
Policy Act and NOAA Administrative Order (NAO) 216-6 Environmental
Review Procedures for Implementing NEPA relating to NOAA Fisheries
compliance with NEPA. The parties agree to satisfy each of these
requirements as set forth below.

2\. *Control of Contractor.* Contractor agrees to report directly to the
USFWS and NOAA Fisheries concurrently, such that all are provided draft
and final materials at the same time Although the Consultant will be
paid by Applicant *(\[name of Applicant(s)\]* in this case), Contractor
is obligated to follow the directions of the USFWS and NOAA Fisheries in
regards to NEPA. The USFWS and NOAA Fisheries shall make the final
determination on the inclusion or deletion of any material in the EIS
for purposes of satisfying NEPA requirements. The USFWS and NOAA
Fisheries are ultimately responsible for assuring compliance with the
requirements of NEPA. The *\[Applicant(s)\]* agrees to enter into an
Agreement for Professional Services (Contractor Agreement) with the
Contractor that is consistent with the terms of this Agreement. The
Contractor Agreement will specify work tasks and deliverables to
complete the EIS.

3\. *Disclosure Statement.* Contractor cannot have a financial or
economic interest in the outcome of the Project. Contractor agrees to
execute the Disclosure Statement attached hereto as Attachment.

4\. *Payment of Contractor. \[Applicant(s)\]* agrees to pay Contractor
for all services rendered in the preparation of the EIS. Contractor
agrees that the USFWS and NOAA Fisheries are not obligated in any manner
to pay for the services rendered by Contractor in relation to the
Project. The Lead Agencies will jointly authorize changes in the scope
of work. The *\[Applicant(s)\]* will pay any additional costs for
changes in the scope of work.

5\. *Scope of EIS.* The general scope of the EIS will be determined
through the scoping process. This scope may be amended from time to time
in order to better satisfy the requirements under NEPA and their
implementing regulations. Contractor will be responsible for organizing
public meetings, compiling scoping comments and providing scoping
updates to the Lead Agencies.

6\. *Schedule of EIS Preparation.* The anticipated schedule for the
preparation of the EIS will be set forth in coordination with all
parties. The parties agree to use their best efforts to meet this
schedule. The schedule may be revised from time to time as necessary to
reflect changes in conditions and requirements.

7\. *Draft EIS.* Contractor will have the primary responsibility for
writing and revising the EIS at the direction of the Lead Agencies. The
Lead Agencies will be given the opportunity to comment on and make
changes to the EIS at agreed upon stages of its development and
completion as set forth in the Schedule of EIS Preparation described in
section (B)6 above. The requirements for production of the
Administrative Drafts, Draft, and Final EIS and deliverables are
specified in the Contractor Agreement. The Contractor will be
responsible for providing sufficient copies of the documents on a timely
basis to meet the Lead Agencies' circulation requirements. The USFWS and
NOAA Fisheries will be responsible for filing the draft EIS with the
Environmental Protection Agency (EPA) for publication of its Notice of
Availability in the Federal Register.

8\. *Public Meetings and Comments.* The Contractor will be responsible
for compiling all public comments. Upon completion of the Draft EIS, the
Contractor will be responsible for organizing any necessary public
meetings and/or hearings. The Lead Agencies will receive all comments on
the draft EIS resulting from public review and comment period(s), and
will refer them to the Contractor for development of responses. The
Contractor will be responsible for drafting initial responses to public
comments.

9\. *Final EIS.* After the close of the draft EIS review and comment
period, the Lead Agencies will identify the issues and comments that
will require response in the final EIS. The Lead Agencies will refer to
Contractor these comments for analysis and reply. The Lead Agencies will
determine the necessary modifications to the draft EIS. The Contractor
will incorporate the comments, responses and modifications into the
final EIS. The Lead Agencies will review the completed document and file
the final EIS with EPA.

10\. *Decision.* Not less than 30 days after the final EIS is filed with
the EPA, the USFWS and NOAA Fisheries will prepare a Record of Decision
(ROD) and render a decision on the permit application

C. [Termination and Modifications]{.underline}

1\. This Agreement remains in effect until a decision is made on the
Section 10(a)(1)(B) permit or until the permit requests are withdrawn.

2\. Any party may terminate this Agreement at any time by giving written
notice to the other parties.

3\. This Agreement may be modified or amended only by written instrument
signed by all of the parties hereto.

D. [Notice]{.underline}

Any notice or communication that any party desires or is required to
give to the others shall be in writing and be served personally or sent
by first class mail, postage prepaid, addressed as follows:

APPLICANT: *\[name\]*

*\[address\]*

USFWS: U.S. Fish and Wildlife Service

> *\[address\]*

NOAA Fisheries: National Marine Fisheries Service

*\[address*\]

CONTRACTOR: *\[name\]*

*\[address\]*

The parties have executed this Agreement on \_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_, 200\_. If the Contractor is a corporation, documentation must
be provided that the person signing below for the Contractor has the
authority to do so.

*\[APPLICANT(S)\]*

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

*\[CONSULTING FIRM\]*

Contractor

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

UNITED STATES FISH AND WILDLIFE SERVICE

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

*\[Project Leader, Deputy, Assistant PL, etc.\]*

NATIONAL MARINE FISHERIES SERVICE

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_