U.S. Fish & Wildlife Service

Habitat Conservation

Plans

What is a Habitat Conservation Plan

and Incidental Take Permit?

Incidental take permits are required when

non-Federal activities will result in “take” of

threatened or endangered species. A

habitat conservation plan or “HCP” must

accompany an application for an incidental

take permit. The purpose of the habitat

conservation planning process associated

with the permit is to ensure there is

adequate minimizing and mitigating of the

effects of the authorized incidental take.

The purpose of the incidental take permit is

to authorize the incidental take of a listed

species, not to authorize the activities that

result in take.

What is take?

“Take” is defined in the Endangered

Species Act (Act) as harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or

collect any threatened or endangered

species. Harm may include significant

habitat modification where it actually kills

or injures a listed species through

impairment of essential behavior (e.g.,

nesting or reproduction).

How many HCPs have been developed

and what size areas do they cover?

As of October 1, 2001, over 447 HCPs have

been approved. These HCPs address more

than 516 

39 million acres.

Both the number of HCPs and the size and

complexity of the areas they cover have

increased. Most of the earlier HCPs

approved were for planning areas of less

than 1,000 acres. However, of the HCPs

that have been approved as of September

2001, seventeen range from 10,000 to

100,000 acres; eleven range from 100,000 to

500,000; six exceed 500,000 acres; and five

cover more than one million acres. In some

cases, there are more than one incidental

take permit associated with a HCP. For

example, the Central Coastal Orange

County HCP was developed as an overall

plan under which each individual

participating entity received their own

incidental take permit. This suggests that

HCPs are evolving from a process adopted

primarily to address single projects to

broad-based, landscape-level planning,

utilized to achieve long-term biological and

regulatory goals.

Who needs an Incidental Take Permit?

Anyone who believes that their otherwiselawful activities will result in the

“incidental take” of a listed species needs

a permit. The Service can help you

determine whether your proposed project

or action is likely to result in “take” and

whether a HCP is an option to consider.

Service personnel can also provide technical

assistance to help you design your project

so as to avoid take. For example, the

project could be designed with seasonal

restrictions on construction to minimize

disturbance during nesting.

What is the benefit of an Incidental

Take Permit and Habitat Conservation

Plan to a private landowner?

The permit allows a landowner to legally

proceed with an activity that would

otherwise result in the illegal take of a listed

species. The Services also developed a

regulation to address the problem of

maintaining regulatory assurances and

providing certainty to landowners through

the HCP process, the “No Surprises”

regulation.

What are No Surprises assurances?

No Surprises assurances are provided by

the government through the section

10(a)(1)(B) process to non-Federal

landowners. Essentially, private

landowners are assured that if “unforeseen

circumstances” arise, the Services will not

require the commitment of additional land,

water, or financial compensation or

additional restrictions on the use of land,

water, or other natural resources beyond

the level otherwise agreed to in the HCP

Section 10 of the Endangered Species Act

The Wisconsin Statewide HCP was developed for the conservation of the endangered

Karner blue butterfly. Photo by Joel Trick.

species across more than
without the consent of the permittee. The 

government will honor these assurances as 

long as a permittee is implementing the 

terms and conditions of the HCP, permit, 

and other associated documents in good 

faith. In effect, this regulation states that 

the government will honor its commitment 

as long as the HCP permittees honor theirs. 

Are Incidental Take Permits needed for 

listed plants? 

There are no Federal prohibitions under the 

Act for the take of listed plants on nonFederal lands, unless taking of those plants 

is in violation of State law. However, before 

the Service issues a permit, the effects of 

the permit on listed plants must be analyzed 

because section 7 of the Act requires that 

issuance of a HCP permit must not 

jeopardize any listed species, including 

plants. 

What is the process for getting an 

Incidental Take Permit? 

The applicant is in charge of deciding 

whether to pursue an incidental take 

permit. While Service personnel provide 

detailed guidance and technical assistance 

throughout the process, the development 

of a HCP is driven by the applicant. The 

applicant is responsible for submitting a 

completed permit application. The 

necessary components of a completed 

permit application are: a standard 

application form, a HCP, an 

Implementation Agreement (if required), 

and, if appropriate, a draft National 

Environmental Policy Act analysis. 

While processing the permit application, 

the Service will prepare an intra-Service 

biological opinion under section 7 of the 

ESA and the incidental take permit, and 

finalize the NEPA analysis documents. 

Consequently, incidental take permits 

have a number of associated documents 

besides the HCP. 

How long will it take to process our 

application? 

The length of time to complete the 

permitting process depends on the 

complexity of issues involved (e.g., the 

number of species) and the completeness 

of the documents submitted by the 

applicant. The Service will work to 

complete all steps such as the public 

comment process as expeditiously as 

possible. The most variable factor in 

permit processing requirements is the level 

of analysis required for the proposed HCP 

under NEPA, in other words, whether an 

Environmental Impact Statement, 

Environmental Assessment, or a categorical 

exclusion is required. Other factors such as 

public controversy can also affect permit 

processing times. 

“Low Effect” HCPs are those involving (1) 

minor effects on federally listed, proposed, 

or candidate species and their habitats 

covered under the HCP; and (2) minor 

effects on other environmental values or 

resources. These HCPs do not require a 

NEPA document, and the target permit 

processing time is 3 months. 

HCPs which do not fall into the “Low 

Effect” category require either an EA or 

an EIS, depending on their complexity. 

For those requiring an EA as part of the 

permit application, the target permit 

processing time is 4 to 6 months. For those 

requiring an EIS, the target permit 

processing time may be up to 12 months. 

How do we know if we have listed 

species on our project site? 

Check with the appropriate State fish and 

wildlife agency, the nearest Service field 

office, or the National Marine Fisheries 

Service (for anadromous fish). You can 

arrange for a biologist from one of these 

agencies to visit your property to 

determine whether a listed species may 

be on your project site. 

What needs to be in a HCP? 

The contents of a HCP are defined in 

section 10 of the Act and its implementing 

regulations. They include: 

■ An assessment of impacts likely to result 

from the proposed taking of one or more 

federally listed species. 

■ Measures the permit applicant will 

undertake to monitor, minimize, and 

mitigate for such impacts; the funding 

that will be made available to implement 

such measures; and the procedures to deal 

with unforeseen or extraordinary 

circumstances. 

■ Alternative actions to the taking that the 

applicant analyzed, and the reasons why 

the applicant did not adopt such 

alternatives. 

■ Additional measures that the Service 

may require as necessary or appropriate. 

What kind of actions are considered 

mitigation? 

Mitigation measures are actions that reduce 

or address potential adverse effects of a 

proposed activity upon species covered by a 

HCP. They should address specific needs of 

the species involved and be manageable 

and enforceable. Mitigation measures may 

take many forms, such as: preservation (via 

acquisition or conservation easement) of 

existing habitat; enhancement or 

restoration of degraded or a former 

habitat; creation of new habitats; 

establishment of buffer areas around 

existing habitats; modifications of land use 

practices, and restrictions on access. 

What is the legal commitment of a HCP? 

The elements of a HCP are made binding 

through the incidental take permit. While 

incidental take permits contain an 

expiration date, the mitigation identified in 

the HCP can be in perpetuity in certain 

cases. Violation of the terms of an incidental 

take permit would result in illegal take 

under section 9 of the Act. If the violation is 

deemed technical or inadvertent in nature, 

the Service may send the permittee a notice 

of noncompliance by certified mail or may 

recommend alternative actions to the 

permittee so that they may regain 

compliance with the terms of the permit. 

Who approves a HCP? 

The Regional Director of the Service’s 

Region decides whether to issue a HCP 

permit based on findings that: 

■ the taking will be incidental to an 

otherwise lawful activity; 

■ the impacts will be minimized, and 

mitigated to the maximum extent 

practicable; 

■ adequate funding will be provided; 

■ the taking will not appreciably reduce the 

likelihood of the survival and recovery of the 

species; and 

■ any other necessary measures are met. 

If the HCP addresses all of these 

requirements and those of other 

applicable laws, the permit is issued. 

What other laws besides the Endangered 

Species Act are involved? 

In issuing an incidental take permit, the 

Service must comply with the NEPA and 

all other statutory and regulatory 

requirements, including any State or local 

environmental/planning laws. HCPs may be 

categorically excluded from NEPA or may 

require either an EA or, rarely, an EIS. 

Who is responsible for NEPA 

compliance during the HCP process? 

The Service is responsible for ensuring 

NEPA compliance during the HCP process. 

However, if the Service does not have 

sufficient staff resources to prepare the 

appropriate NEPA analysis in a timely 

fashion, an applicant may, within certain 

limitations, prepare draft Environmental 

Assessment analyses. This can benefit the 
applicant and the government by expediting 

the application process and issuance of the 

permit. When this is done, the Service will: 

(1) provide the preparer with appropriate 

guidance concerning document preparation; 

and (2) review the document within 30 days 

and take responsibility ultimately for its 

scope, adequacy, and content. 

Does the public get to comment on our 

HCP? How do public comments affect 

our HCP? 

The Act requires a 30-day period for public 

comment on the application for an 

incidental take permit. However, we have 

recognized the concerns of the public 

regarding inadequate time for the public 

comment period, and have extended the 

minimum comment period to 60 days. 

Additionally, NEPA requires public 

comment on certain NEPA documents, and 

the Service runs these two comment 

periods concurrently. Therefore, public 

comments must be considered in the permit 

decision. 

What kind of monitoring is required for a 

HCP and who performs it? 

The Service or any party designated as 

responsible by the Service (e.g., State 

wildlife agency, local government) in the 

HCP will monitor the project for 

compliance with the terms of the 

incidental take permit or HCP. If another 

party is responsible for monitoring 

compliance with the permit, the Service 

will require periodic reporting from such 

party in order to maintain overall 

oversight responsibility for the 

implementation of the HCP’s terms and 

conditions. For regional and other largescale or long-term HCPs, monitoring 

programs must provide long-term 

assurances that the HCP will be 

implemented correctly, that actions will be 

monitored, and that such actions will work 

as expected. This should include periodic 

accountings of take, surveys to determine 

species status in project areas or 

mitigation habitats, and progress reports 

on fulfillment of mitigation requirements 

(e.g., habitat acres acquired). Monitoring 

plans for HCPs should establish target 

milestones, to the extent practicable, or 

reporting requirements throughout the life 

of the HCP, and should address actions to be 

taken in case of unforeseen or extraordinary 

circumstances. 

The Service must monitor the applicant’s 

implementation of the HCP and the permit 

terms and conditions. In addition to 

compliance monitoring, the biological 

conditions associated with the HCP should 

be monitored to determine if the species 

needs are being met. This includes 

determining if the biological goals that are 

expected as part of the HCP mitigation and 

minimization strategy are being met. The 

effectiveness monitoring will help the 

Service determine if the conservation 

strategy is functioning as intended and the 

anticipated benefits to the species are being 

realized. 

Are efforts made to accommodate the 

needs of HCP participants who are not 

professionally involved in the issues? 

Because development of a HCP is done by 

the applicant, it is considered a private 

action and, therefore, not subject to public 

participation or review until the Service 

receives an official application. The Service 

is committed to working with HCP 

applicants and providing technical 

assistance as required throughout the HCP 

development process to accommodate their 

needs. The Service believes that HCPs 

under development are restricted by 

privacy regulations unless waived by the 

applicant. However, the Service does 

encourage the applicant to involve all 

appropriate parties. This is especially true 

for complex and controversial projects, and 

applicants for most large-scale, regional 

HCP efforts choose to provide extensive 

opportunities for public involvement during 

the planning process. The issuance of a 

permit is, however, a Federal action that is 

subject to public review and comment. 

There is time for public review during the 

period when the Service reviews the 

information and decides to grant or deny 

a permit based on the completed HCP. A 

30-day public comment period is required 

for all completed HCP applications. 

During this period, any member of the 

public may review and comment on the 

HCP and the accompanying NEPA 

document (if applicable). Additionally, the 

Service solicits public involvement and 

review, as well as requests for additional 

information during the scoping process 

for an Environmental Impact Statement. 

Are the views of independent scientists 

used or sought, before and during 

development of a HCP? 

The views of independent scientists are 

important in the development of 

mitigation and minimization measures in 

nearly all HCPs. In many cases, these 

individuals are contacted by the applicant 

and are directly involved in discussions on 

the adequacy of possible mitigation and 

minimization measures. In other cases, 

the views of independent scientists are 

incorporated indirectly through their 

participation in other documents, such as 

listing documents, recovery plans, and 

conservation agreements, that are 

referenced by applicants as they develop 

their HCP. 

How does the Service ensure that 

species are adequately covered in 

HCPs? 

The Service has strengthened the HCP 

process by incorporating adaptive 

management into the plans when there 

are species covered for which additional 

scientific information may be useful 

during the implementation of the HCP. 

These provisions allow FWS and NMFS 

to work with the landowner to reach 

mutual agreement upon changes in the 

mitigation strategies within the HCP 

area, if new information about the species 

indicates this is needed. Any changes in 

strategy that may occur are discussed up 

front with the landowner during the 

development of the HCP. In this manner, 

the permittees are fully aware of any 

future uncertainty in the management 

strategies, and have concurred with the 

adaptive approaches outlined in the HCP. 

What will the Service do in the event of 

unforeseen circumstances that may 

jeopardize the species? 

The Service will use its authority to 

manage any unforeseen circumstances 

that may arise to ensure that species are 

not jeopardized as a result of approved 

HCPs. The Service will work with all 

other Federal and State agencies to help 

ensure the continued survival and 

recovery of the species in the wild. 

How can I obtain information on 

numbers and types of HCPs? 

Our National HCP database displaying 

basic statistics on HCPs is available online 

from our Habitat Conservation Planning 

page at http://endangered.fws.gov/hcp. The 

contact information regarding an individual 

HCP that is available for public comment is 

listed in the notice of availability for that 

HCP, published in the Federal Register by 

the appropriate Regional office. Regional 

office contact information can be found at 

http://www.fws.gov. 

U.S. Fish & Wildlife Service 

Endangered Species Program 

4401 N. Fairfax Drive, Room 420 

Arlington, VA 22203 

703/358-2106 

http://endangered.fws.gov/hcp/ 

February 2002