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CHAPTER 2 

OVERVIEW OF FWS AND NMFS ROLES AND RESPONSIBILITIES

A. Delegation of Permit Authority

In the past, the FWS's Office of Management Authority (OMA) in the Washington, D.C.

area processed and issued all section 10(a)(1)(A) and 10(a)(1)(B) permits. Effective

February 12, 1992, the FWS Director delegated incidental take permit responsibilities to the

Regional Directors. For NMFS, the responsibility for issuing incidental take permits is

divided between the Office of Protected Resources in Silver Spring, Maryland (Washington,

D.C. area), and its west coast Regions.

B. Roles and Responsibilities

FWS and NMFS offices at the regional, field, and Washington, D.C. level, and the permit

applicant, all have specific responsibilities in implementing the HCP program. This section

summarizes the roles and responsibilities of each of these participants.

Keep in mind that specific HCP procedures may vary somewhat between FWS Regions or

between FWS and NMFS. This is because the circumstances faced by individual HCP

participants may differ widely across regional boundaries or agency jurisdictions, and this

handbook, while establishing consistent program standards, also seeks to maintain the

flexibility to adjust to specific local needs. Thus, while fundamental legal and policy issues

will be consistent nationwide, individual procedures (e.g., document handling requirements)

may vary depending on the decisions of FWS Regional Directors or the NMFS Regional or

Washington, D.C. Offices.

1. Applicant.

The applicant is responsible for compliance with the take prohibition and exceptions

under sections 9, 4(d), and 10(a) of the ESA. Once the decision to obtain a permit has

been made, the applicant is also responsible for preparing the HCP and, if approved,

for implementing it. Requesting technical assistance from FWS, NMFS, and other

interests during preparation of the HCP is strongly recommended to ensure the HCP

ultimately submitted for approval is biological sound and meets statutory

requirements. The applicant:

o Should coordinate with FWS, NMFS, affected Federal and state agencies, tribal

governments, and where appropriate, affected private interests and organizations

in preparing an HCP that satisfies the requirements of section 10(a)(1)(B) of the

ESA and Federal regulations. 
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o Generally, develops a draft Environmental Assessment (EA) with technical

assistance from the Services, and draft Federal Register notices for Service use

during the permit processing phase. Normally, EISs are also prepared by the

applicant, or through a contractor, or an HCP applicant, under certain

circumstances and strict guidance from FWS or NMFS, can assist in developing

an EIS. However, FWS or NMFS is ultimately responsible for the content of all

section 10 NEPA documents. 

o Submits a permit application (Form 3-200), a $25 application fee (unless applicant

is fee exempt), a completed HCP, draft NEPA analysis (optional) and an IA (as

needed) to the appropriate FWS Field or Regional Office or NMFS Regional or

Washington, D.C. Office (see Chapter 6, Section B.3).

For FWS applications, note that Federal regulation [50 CFR 13.11(b)] calls for

the application to be submitted to the Arlington, Virginia office; however, these

regulations are being amended to reflect delegation of the permit program to the

Regional Directors. NMFS regulations [50 CFR 222.22] state that applications

should be sent to the Silver Spring, Maryland Office, but applications involving

west coast anadromous fish should be submitted to the Southwest or Northwest

Regional Directors.

o During the permit processing phase, coordinates with the appropriate FWS or

NMFS Field Office to amend or correct the HCP or associated documents, as

necessary. Also should provide the Field Office with additional information

necessary for the Services to respond to public comments when appropriate.

o If the permit is issued, implements all measures and programs required by the

HCP permit and submits all documentation, monitoring reports, etc. as required

over the life of the permit. 

2. Field Office.

FWS Responsible Party - Field Supervisor.

NMFS Responsible Party - Field Supervisor.

The Field Office is responsible for assisting the applicant in preparing the HCP;

ensuring that the HCP and associated documents are complete; and coordinating with

the appropriate Regional Office (or NMFS Washington, D.C. Office) throughout HCP

development, approval, and implementation. The Field Office:

o Provides technical assistance to the permit applicant and serves as applicant's

point of contact for information concerning HCP, permit processing, and NEPA
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requirements during the HCP development phase. Provides assistance to the

applicant’s HCP steering committee, if any, as requested (see Chapter 3, Section

A.3).

o Encourages permit applicant to include affected state and Federal agencies and

tribal governments to participate in the HCP process. Other Federal agencies

might be involved, for example, if they are involved in adjacent planning areas or

would administer mitigation lands under the HCP. Inclusion of affected state

agencies insures efficient consideration of any additional requirements of state

law. 

o Coordinates review of HCP development with FWS or NMFS Law Enforcement

agents involved in enforcing permit conditions. 

o Stays informed on planning progress, problems, significant issues, and decisions;

routinely advises the Regional Office of HCP progress on key policy and

substantive issues (see Chapter 6, Section C.1).

o Reviews drafts of the HCP and IA for adequacy and comments as necessary. 

Draft HCPs should be returned to the permit applicant within 30 days of

submission, to the maximum extent possible.

o Prepares NEPA analysis, or reviews draft documents if prepared by the applicant

or contractor. Draft NEPA analysis should also be returned to the permit

applicant within 30 days of submission, to the maximum extent possible. 

o Certifies to the Regional Office in writing that HCP documents have been

reviewed by Field Office staff and are found to be statutorily complete, when the

"complete application package" is transmitted to the Regional Office (see Chapter

6, Section B.2).

o Reviews public comments received, if any, and coordinates necessary changes to

the HCP or IA with the FWS or NMFS Regional HCP Coordinator during the

permit application processing phase; notifies applicant(s) of recommended

revisions to the draft HCP or IA, if any, identified as a result of legal or public

review; and discusses remedies. Coordinates with FWS or NMFS Regional

Office Environmental Coordinator, NMFS Washington, D.C. Office HCP

Coordinator, or the applicant or applicant's contractor to make revisions to the

NEPA document, if necessary.

o For FWS, briefs the Regional Director, appropriate Assistant Regional Director,

ARD for Law Enforcement, and the Solicitor's Office concerning HCP issues as
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requested. For NMFS, briefs the Regional Director, Deputy Director, Law

Enforcement, and General Counsel's Office, as requested.

o Drafts the following documents (see Chapter 6, Section B.2):

NEPA analysis, either an EA or EIS that is integrated with the proposed HCP

(unless drafted by the applicant or contractor).

Federal Register Notice of Receipt of permit application and Notice(s) of

Availability of EA or EIS. 

Biological opinion concluding formal section 7 consultation. The biological

opinion concluding formal section 7 consultation may be done by the FWS or

NMFS office that assisted in HCP development or by another office. To avoid

possible biases, the staff member conducting the section 7 consultation should not

be the section 10 biologist providing technical assistance to the HCP applicant. 

This will help ensure that the intra-Service section 7 consultation is an

independent analysis of the proposed HCP. If, because of staff time constraints,

this is not possible, then the biological opinion should be reviewed by another

knowledgeable biologist before it is signed by the approving official. It is very

important that the staff member that completes the section 7 consultation be

involved in the initial stages of the HCP process. This will help ensure that the

section 7 requirements are addressed in the HCP and that the two processes are

integrated which will help expedite the permitting process. If the Regional

Director has delegated the authority, the biological opinion may be signed by an

approving official in the Field Office.

Set of Findings (see Chapter 6. Section B.2). 

An Environmental Action Memorandum for low-effect HCPs that are

categorically excluded from NEPA, Finding of No Significant Impact (FONSI)

for the EA, or Record of Decision (ROD) for the EIS.

News releases as appropriate or requested by the Regional Office.

Responses to comments, as necessary. 

Permit Terms and Conditions for inclusion in the permit (FWS’s Form 3-201), if

requested by the Regional Office or NMFS Washington, D.C. Office.

o Monitors compliance with HCP provisions and permit terms and conditions and

evaluates success of the HCP at least annually. Arranges for independent

biological peer review, as appropriate.
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o Provides an accounting of fund expenditures administering the section 10

program to the Regional Office as requested.

3. Regional Office.

FWS Responsible Parties - Regional Director (RD); Deputy Regional Director (DRD);

appropriate Assistant Regional Director (ARD); and Assistant Regional Director for

Law Enforcement (ARD-LE).

NMFS Responsible Parties - Regional Director (RD); Deputy Regional Director

(DRD).

For FWS, the Regional Office oversees and administers the incidental take permit

program for its respective region. For NMFS, this is true for the Northwest and

Southwest Regions only, and only for activities concerning west coast anadromous fish

species; the Washington, D.C. Office administers the balance of the permit program. 

Currently, the only HCPs in development in these NMFS regions are for anadromous

species. The FWS and applicable NMFS Regional Office is responsible for

coordinating with the Field Office throughout the HCP process, reviewing and

processing the permit application; and issuing or denying the permit. It is also

responsible for ensuring that permit processing targets described in Chapter 1 and

Chapter 6 are met. The Regional Office:

o Receives complete permit application package with supporting documents from

the Field Office or applicant, and accounts for fee processing (see Chapter 6,

Section B.3).

o Processes application check.

o Coordinates with ARD-LE to have permit number assigned through LEMIS (Law

Enforcement Management Information System); coordinates review of permit

application by ARD-LE, as necessary (FWS only).

o Reviews permit application package for adequacy and reports any deficiencies to

the Field Office (Section 10 Coordinator reviews HCP and IA; Environmental

Coordinator reviews NEPA analysis) (see Chapter 6, Section B.4 and C.1). Prior

periodic Field Office review and reporting on key policy and substantive issues

should result in the identification and elimination of most deficiencies prior to

formal Regional Office review.

o Transmits Federal Register notices to the Office of the Federal Register for

publication (see Chapter 6, Section D).
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o Files copies of any draft and final EIS with the Environmental Protection Agency

[see Chapter 5, Section A.4].

o Reviews draft and finalizes internal section 7 consultation, if the biological

opinion was drafted by the Field Office that participated in HCP development, or

incorporates biological opinion completed by the Field Office into the

administrative record.

o Reviews and finalizes Set of Findings (unless finalized by the Field Office).

o Prepares the Environmental Action Memorandum (EAM) for low-effect HCP

permit applications (see Chapter 6, Section B.2).

o Coordinates with the Assistant Director for Ecological Services for major policy

issues to ensure the interpretation of the policy is legally sufficient and within the

overall National policy guidance for the HCP program. 

o Briefs the Director or Washington, D.C. Office on all significant HCP

developments, permit application processing, and post-issuance efforts, as

necessary. Reports HCPs in development and section 10 permits issued to

Washington Office, as requested.

o Coordinates with lead Region responsible for the species prior to issuance of the

permit to ensure agency-wide consistency for species that overlap more than one

FWS or NMFS Region.

o Prepares permit and associated documents (IA, FONSI, ROD, EAM) for RD or

DRD signature, as necessary or requested (see Chapter 6, Section C.5).

o Issues or denies the permit and (FWS only) updates LEMIS. Sends the signed

permit with terms and conditions or a denial letter to the permittee or applicant. 

Sends copies of these documents to the Field Office, other affected offices, and

Division of Endangered Species (FWS) and Office of Protected Resources

(NMFS) in Washington, D.C.

o Sends Notice of Permit Issuance to the Office of the Federal Register for

publication on a quarterly or biannual basis.

o Coordinates Freedom of Information Act (FOIA) requests.

4. Washington Office.
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FWS Responsible Parties - Director; Assistant Director of Ecological Services (AES);

and Chief, Division of Endangered Species (DTE). 

NMFS Responsible Parties - Director, Office of Protected Species; Chief, Endangered

Species Division.

The FWS Washington Offices provide guidance and oversight to the Regional and

Field Offices. It is responsible for nationwide administration of the program:

o Develops regulations and national policy guidance.

o Assists in resolving issues or disputes when requested by the Regional Offices.

o Briefs Director or other authorities or coordinates such briefings as necessary.

o Prepares HCP, NEPA, and other related training and technical assistance to

Regional Offices and Field Offices, as needed.

o Maintains and updates national list or data base of HCPs in development and

permits issued.

The NMFS Washington, D.C. Office of Protected Resources has the same functions as

described for FWS. It also processes all permit applications and issues or denies all permits,

except for those concerning anadromous species in the Northwest or Southwest Regions. 

NMFS permits for activities such as state fish hatcheries, and commercial or recreational

fisheries must comply with all statutory provisions of section 10(a)(1)(B) of the ESA, but

may have fewer documentation requirements than other types of incidental take permits. 

(Refer to NMFS final regulations for the program contained in Appendix 1 (55 FR 20603)). 

The NMFS Washington, D.C. Office should be contacted for assistance in handling any such

permits. Generally, all other NMFS-issued incidental take permits are subject to the

documentation requirements described in this handbook. 

5. Solicitor’s Office/General Counsel Office.

FWS Responsible Parties - Solicitor’s Office

NMFS Responsible Parties - General Counsel’s Office

For FWS, the Solicitor's Office need review only those parts of the permit application

package that the Regional Director request be reviewed--typically the HCP and

Implementing Agreement. Coordination with the Regional Solicitor's Office on a

permit application package should begin as soon as possible in the permit processing

phase and during the HCP development phase. After Solicitor review is complete, the
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Regional Solicitor’s office should forward a memorandum to the RD or appropriate

ARD stating that he or she has reviewed the IA and other documents, as applicable,

and that they meet statutory and regulatory requirements. The Regional Solicitor’s

Office should review the documents, as necessary, throughout the HCP process to

ensure regulatory and statutory compliance and to avoid "last minute" identification

of problems in documents submitted for final approval. For NMFS, the General

Counsel’s Office (either in the Region or Headquarters) must review the entire

application package and all supporting ESA and NEPA documentation. 

The purpose of legal review of the permit application package is to ensure that the HCP and

associated documents meet the strict requirements of the ESA and its regulations. This is

especially important for the HCP, which has specific legal requirements, and the

Implementing Agreement, which legally binds the applicant to complying with the HCP and

permit terms. For NMFS, legal review of all documents must be conducted by either the

Headquarters or Regional General Counsel’s Office.