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CHAPTER 6

APPLICATION REQUIREMENTS AND PROCESSING PROCEDURES

Important Notice: On September 5, 1995, the Fish and Wildlife Service published a

proposed rule in the Federal Register amending the general regulations for its permit

program (50 CFR Part 13 and Part 17). The Service is currently drafting additional language

to clarify the relationship between the Part 13 and Part 17 procedures and a proposed rule

will be published in the near future. Consequently, some information contained in this

chapter--particularly with respect to permit denial, suspension, and revocation procedures--

may be outdated upon publication of a final rule. Users of this handbook should check the

revised permit procedures when available or contact the Service's Division of Law

Enforcement to ensure that the handbook’s description of permit administration is consistent

with the new regulations.

Except where noted, the procedures described in this chapter apply to both FWS and NMFS. 

For NMFS, 50 CFR 222.22 contains regulations specific to incidental take permits. General

permit procedures are found in 50 CFR 217, 220, as well as 222. NMFS is also in the

process of revising its ESA regulations at 50 CFR parts 217-227. Therefore, citations to

NMFS regulations may change from those provided in this handbook. 

A. Guidance to the Applicant

1. What to Provide the Applicant.

The following documents should be provided to any prospective permit applicant or

applicant's consultant.

o For FWS, Federal Fish and Wildlife License/Permit Application (Form 3-200) 

with "Incidental Take Permit Application" supplement, instructions, and Notice of

Permit Application Fee/Privacy Act Notice (Appendix 9).

o For NMFS, incidental take application instructions (Appendix 9). 

o This handbook, if appropriate (some applicants may find it too technical; although

it may be useful to experienced consultants). 

o List of candidate, proposed, endangered, and threatened species of wildlife and

plants for the prospective planning area. 

o List of appropriate local, state, and federal contacts, such as state conservation

agencies.
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o General Permit Procedures - for FWS, 50 CFR Part 13; for NMFS, 50 CFR 217,

220, and 222 (Appendix 11).

o Endangered and Threatened Wildlife and Plant Permit procedures - for FWS,

excerpts from 50 CFR Part 17; for NMFS, 50 CFR 222.22 (Appendix 11).

2. Application Form and Instructions.

For FWS, an applicant must complete and submit an official Form 3-200 [50 CFR

17.22(a)(1)]. Instructions for this form are provided below and in Appendix 9. The

appropriate Regional Office address and phone number should be typed on the top of the

form where it reads "Send Application To." NMFS does not have an official permit

application form but provides instructions for what information the applicant needs to submit

and where (see Appendix 9). A list of FWS and NMFS Regional Offices is provided in

Appendix 12.

 

3. Name of the Applicant.

For FWS, if the applicant is an individual, that person must sign the application and complete

block 4 of Form 3-200. If the applicant is a city, county, business, or consortium, the

application must be signed by the appropriate authority responsible for actions granted under

the permit and block 5 must be completed. In all cases, there must be an original signature

and date in the certification block. An application form may be faxed to begin the permit

processing phase, but only if the original application with an original signature is submitted

immediately afterward. The application will not be considered complete without the original

application form. For NMFS, the applicant should follow the application instructions in

Appendix 9.

4. Application Fee.

The processing fee for FWS and NMFS is $25.00 for each new permit application,

amendment request, or renewal, except as noted below. Money orders or checks should be

made payable to the "U.S. Fish and Wildlife Service" or "National Marine Fisheries Service." 

The fee is for processing the application, not for the permit, and therefore is non-refundable

if the application is abandoned or the permit is denied. The fee may be refunded only if the

applicant withdraws the application in writing before any significant processing of the

application has occurred. For FWS, if the check has been forwarded to the Denver Finance

Center, request the Finance Center to send a refund to the applicant. State or local

government agencies or any individual or institution under contract to such agency to

conduct proposed activities are fee exempt.

Checks and money orders must be safeguarded as if they are cash; they should be placed in a

fire-proof safe except when being processed by employees designated as collection officers. 
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Application fees need to be deposited in a timely manner and each Regional Office should

establish deposit procedures. For FWS, since Regional Division of Law Enforcement offices

already have such procedures, the Assistant Director for Ecological Services may wish to

coordinate with the Assistant Director for Law Enforcement in handling application fees.

5. Providing the General Permit Requirements.

The applicant should be provided copies of the general permit procedures and pertinent

excerpts from the procedures for endangered and threatened species permits. By signing

Form 3-200, the applicant is certifying (1) that the applicant has read and is familiar with

applicable regulations; (2) that the information submitted in the application is complete and

accurate; and (3) that the applicant understands that any false statements may result in

criminal penalties.

50 CFR Part 13 provides conditions for the general administration of FWS's fish, wildlife,

and plant permit program. 50 CFR Part 17 provides conditions for endangered and

threatened species incidental take permits specifically. It should be explained to the applicant

that if any general provision of Part 13 is inconsistent with Part 17 or with provisions of

section 10(a) of the ESA governing incidental take permits, it is the intention of the FWS to

seek regulatory clarifications which would provide that the more specific provisions of Part

17 or the statute apply. This also applies to NMFS, except that 50 CFR Part 222 takes

precedent over Parts 217 and 220. The FWS is currently drafting language to clarify and

resolve the differences between the Part 13 and 17 and a proposed rule will be published in

the near future. 

B. Processing the Application

1. Processing Time.

No mandatory time frames for processing incidental take permit applications have been

established under Section 10 or its implementing regulations. However, this handbook

establishes the following target processing times, depending on the type of NEPA action

associated with the permit application [see Chapter 1, Section F.1].

Permit processing times are defined as the period between receipt of a complete application

package by the responsible Regional Office and issuance of the incidental take permit,

including Federal Register public comment notifications. The targets do not include any

portion of the HCP development phase.

HCP With EIS ............................................ less than 10 months

HCP With EA ................................................ 3 to 5 months

Low-effect HCP (Categorically Excluded) ........................ less than 3 months
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These targets will apply as the maximum processing times unless project controversy, staff or

workload problems, or other legitimate reasons make delays unavoidable. All affected FWS

and NMFS offices are expected to streamline their incidental take permit programs and to

meet these processing targets to the maximum extent practicable. In many cases it is

expected actual processing times will be less than these targets and Service offices are

encouraged to improve on the targets whenever possible.

2. Timing of Document Preparation and Submission. 

The Section 10 permit process consists of three phases: (1) the HCP development phase; (2)

the formal permit application processing phase; and (3) the post-issuance phase.

The length of the HCP development phase will vary depending on the complexity and scope

of the project and length of time required to prepare the HCP. It concludes when a

"complete application package" with a Field Office certification that it has reviewed the HCP

and found it to be statutorily complete is forwarded to the appropriate Regional Office [see

below, Sections B.2(b)-(c)]. The formal permit application processing phase begins with

receipt of the complete application package by the Regional Office. Permit processing

requirements will also depend on the scope and complexity of the HCP.

a. Description of Required HCP Documents.

The following documents are needed (or are optional as indicated) to apply for and issue an

incidental take permit:

Must be Provided Before Federal Register Notice Can Be Published

o A Habitat Conservation Plan including the elements required by section

10(a)(2)(A) of the ESA.

o For FWS, a permit application form (3-200) and fee (see Appendix 9). For

NMFS, an application according to the instructions in Appendix 9.

o A NEPA analysis (either an EA or EIS, unless the HCP is categorically excluded)

pursuant to the National Environmental Policy Act. The section 7 biological

opinion should be prepared in conjunction with the NEPA analysis. 

o Certification by the Field Office that assisted the applicant with the HCP to the

issuing Regional Office that the HCP and associated documents are statutorily

complete.

o An Implementing Agreement, if requested by the applicant or otherwise required

by Regional Director policy (see Chapter 3, Section B.8).
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o Federal Register Notices; a Notice of Receipt of a Permit Application and Notices

of Availability of the NEPA analysis (see Appendix 16).

Can Be Prepared During or After the Public Comment Period

o A biological opinion concluding formal section 7 consultation and providing the

Services' findings with respect to the effects of the action on federally listed

species. 

o If required by Regional Director policy, a Set of Findings documenting how the

HCP meets statutory issuance criteria and optionally including the Field Office's

recommendation about whether to issue the permit [see Section B.2(d) below and

Appendix 13).

o For FWS, an Environmental Action Memorandum (EAM) describing what action

the FWS took with respect to NEPA and explaining the reasons why the action is

considered categorically excluded. (For low-effect, categorically excluded HCPs

only (see Appendix 14 and definition in Chapter 8)). Public comments will be

addressed and, if applicable, will help shape the final decision. 

o For FWS, the draft permit (Form 3-201) with proposed terms and conditions; for

NMFS, the permit is printed on agency letterhead with terms and conditions and a

cover letter. The draft permit and terms and conditions must be further reviewed

in light of any substantive public comments received.

b. Submitting a Complete Application Package.

The formal application phase begins with receipt by the appropriate Regional Office of a

"complete permit application" package consisting, at a minimum, of the application form,

application fee (if applicable), the proposed HCP, the Implementing Agreement (if required),

draft NEPA analysis (EAM, EA, or EIS), which was submitted by the applicant, and a

certification by the Field Office that it has reviewed these documents and finds them to be

statutorily complete. Prompt submission of each of these documents is essential to efficient

processing of the permit application because they either initiate the processing phase or are

required for the Federal Register notice initiating the 30-day public comment period.

The Implementing Agreement (if required) should be submitted as part of the complete

application package and is usually included as an appendix to the HCP. Since the IA can

help enforce the implementation of the HCP, it should be included with the complete

package so the public can get a sense of how implementation of the HCP will be managed. 

It should also be included when the HCP is provided to persons wishing to comment on the

permit application.
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c. Certification of Application Documents By the Field Office. 

When the Field Office that assisted the applicant in developing the HCP forwards the

application package to the Regional Office for processing, it should include a certification

memo. The Regional Office should not initiate the formal permit processing phase without

this certification. (see below, Section B.5 for a discussion of what to do when the Field

Office believes the HCP to be inadequate but the applicant wishes to submit the package for

formal processing against Field Office recommendation). This certification should include:

(1) a statement that the Field Office has conducted a preliminary review of the application

package and believes it to be complete; (2) the date of the HCP documents to which the

memo refers; (3) a recommendation by the Field Office that the HCP qualifies for the "loweffect" category, if applicable [see Chapter 1, Section F.2]; (4) exceptions to standard

processing procedures it recommends, if any, and the reason for those exceptions; and (5)

other pertinent information as needed. The Field Office certification can be in memorandum

format, a signed standardized form, or any other format mutually agreed to by the Field and

Regional Offices.

d. Timing of Other Application Documents. 

Another document needed early in the process is the Notice of Receipt of an Incidental Take

Permit Application for publication in the Federal Register. Typically, this is drafted and

forwarded to the Regional Office by the Field Office. The Regional Office then finalizes and

signs the notice and sends it to the Federal Register (see below, Section D). The draft

Federal Register notice is not a required part of the complete application package. It can be

prepared while the HCP, NEPA analysis, and Implementing Agreement are being reviewed in

the Regional office so long as it is completed when these documents are ready for

transmission to the Federal Register. To expedite the public notification process, the Federal

Register Notice of Availability of the NEPA analysis should be published jointly with the

Notice of Receipt of the permit application (see Appendix 16).

In addition to the above documents, processing the permit application will require a:

biological opinion on the proposed incidental take; Set of Findings; for FWS, an

Environmental Action Memorandum (EAM) for categorically excluded HCPs only; and the

permit (for FWS, Form 3-201) or permit letter (for NMFS). The Set of Findings provides an

administrative record of how the HCP program satisfies each of the section 10(a)(2)(B)

issuance criteria, responses to public comments received, if any, and may include a

recommendation from the appropriate ARD to the Regional Director's Office (for FWS)

whether to issue or deny the permit. However, it is not required by regulation or Director's

Order and whether to include it as a processing requirement is at the discretion of the

Regional Directors (see Appendix 13 for examples of a Set of Findings). The EAM is a

record of FWS's NEPA decision and is required by Director's Order No. 11, but only for

HCPs that are categorically excluded (see definition, Chapter 8, and Appendix 14).
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How these documents are handled may vary. Typically, the Field Office drafts the biological

opinion [see below, Section C.3(b)], FONSI or ROD, and Set of Findings, and forwards the

draft documents to the Regional Office to be finalized. The applicant should not draft these

documents because they involve internal Service decisions. The Regional Office typically

prepares the EAM and permit. The permit usually includes an attachment incorporating

terms and conditions of the HCP and referencing applicable Federal regulations and other

conditions, including the permitted incidental take levels and terms and conditions.

In the interests of efficient processing, the Field Office should prepare a draft biological

opinion and draft Set of Findings and forward them to the Regional Office as soon as

possible during the permit processing phase--typically during or immediately after the close

of the 30-day public comment period. The biological opinion can be finalized by the Field

Office. The Regional Office should not finalize and sign the biological opinion, FONSI or

ROD, or Set of Findings until after the public comment period has terminated and public

comments have been addressed.

To meet the target section 10 permit processing times, it is essential that formal application

processing steps overlap, not run consecutively. The formal processing phase begins when

the Regional Office receives the application form, fee (if applicable), HCP, IA (if required),

draft NEPA analysis, and certification memo from the Field Office. Publication of a notice in

the Federal Register requires the HCP, IA, NEPA analysis, and Federal Register notice. 

Issuing the permit requires all the above plus the biological opinion, signed FONSI or ROD,

Environmental Action Memorandum (for low-effect HCPs only), Set of Findings, and the

permit.

Try to complete each document as early as possible in the process, but do not hold up one

stage while waiting for non-essential components of the previous stage. Whenever possible,

complete the components of one stage while another is underway. The Field Office can

begin drafting the FR Notice while the Regional Office reviews the application package; the

Field Office can draft the biological opinion and Set of Findings during the public comment

period; and so on.

e. Labeling the Documents as Draft/Final. 

The HCP and IA (if required) are subject to change during Regional Office review and the

public comment period, and for this reason they need to be labeled as "drafts" and dated

when submitted for processing. The EA should be labeled draft until the Regional Office

Environmental Coordinator or HCP Coordinator has reviewed the document, and until the

public comments, if any, are incorporated; the accompanying FONSI should be labeled as

"preliminary" until public comment, if any, are incorporated into the HCP and EA. An EIS

must always be announced in the Federal Register as a draft and final EIS and must be so

labeled.
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f. Dating Section 10 Documents.

Since HCPs can go through many drafts during the HCP development phase, all HCP

copies, draft and final, should bear a date on the front page or inside title page that includes

the month, year, and day. This will confirm at any stage in the process what HCP draft or

version is being referenced in correspondence or discussions and which is the most up-todate.

To ensure a complete administrative record, the Field Office and Regional Office should

state in writing what measures and revisions they recommend to the applicant or Field Office,

respectively, throughout the HCP development and formal application processing phases. 

Also, all Offices should reference the date of the specific HCP to which it refers in any

written correspondence or other records.

g. Finalizing the Implementing Agreement.

The following process should be followed, if the applicant and Regional Director have

decided to complete an IA; remember this document is optional, left to the discretion of the

Regional Director, and not required for a low-effect HCP. The timing of finalization of the

Implementing Agreement is essential, because improper handling of the Agreement can result

in unnecessary delays. All signatories to the Implementing Agreement should have reviewed

draft versions of the Agreement and all non-federal signatories should have agreed to its

provisions before it is forwarded to the Regional Office with the complete application

package. It should not be signed at that point because it must still be submitted for public

comment with the HCP and may require Solicitor's Office review. If the Agreement was

already signed when submitted with the application package, and subsequent changes are

required, re-circulation for a second signing may be necessary. This is frustrating for permit

applicants, particularly when the Agreement requires approval by local authorities (e.g., a

county Board of Supervisors), which must then re-approve the Agreement. However, the

Agreement must be signed prior to permit issuance. The Implementing Agreement should be

circulated for signature after the public comment period has closed and changes to the HCP

or IA, if any, have been incorporated. An original signature copy of the Implementing

Agreement should be provided to each signatory to the Agreement. For FWS, signature

authority for the Implementing Agreement lies with the Regional Director's Office. For

NMFS, this authority lies with either the Regional Director or the Director of the Office of

Protected Resources, Washington, D.C.

3. Who Submits the Application Package?

There are several ways the complete application package can be submitted to the Regional

Office. The HCP, IA, and draft NEPA analysis (if not prepared by the FWS or NMFS), can

be forwarded by the applicant to the Field Office, and the Field Office then forwards these

materials, together with its certification memo, to the Regional Office. Or, the Field Office
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and applicant can forward to the Regional Office, respectively, the documents for which they

are responsible; in this case the Regional Office would compile the complete application

package and supply the Field Office with the final versions of the HCP and IA. There are

other possible variations; however, most FWS Offices prefer that the Field Office submit the

entire application package to the Regional Office.

This handbook delegates to the Regional Offices the task of establishing specific methods by

which permit application packages will be submitted. Each Regional Office must develop

clear protocols for this procedure, and notify all affected Field Offices.

4. Judging the Application for Completeness.

The applicant must provide all information requested on the application form or in the

application instructions for NMFS (Appendix 9). If the form has not been completed

correctly, the applicant should be notified, in writing or by phone with an accompanying

memo that should be filed in the administrative record, and asked to correct the deficiency or

submit additional information. Requests for information should include notification that if

the information is not received within the allotted time, the application will be deemed

inactive [50 CFR 13.11(e) or 50 CFR 220.13]. The applicant should refer to the inactive

application if he or she reapplies in the future. This paragraph refers only to data required on

the application form; it does not apply to requests for further biological information or other

information upon which a substantive decision with respect to the permit application would

be made. 

To determine whether the HCP is complete, see Chapter 3, Section B.1, B.8, and Chapter 6,

Section B.4. To determine whether the NEPA analysis is complete, see Chapter 5, Sections

A.1-4. In most HCPs, however, the adequacy of these documents will be evaluated during

the HCP development phase, not after the permit application is submitted. Only in relatively

rare cases--e.g., when an applicant has prepared the HCP without Service assistance--will

their adequacy need to be evaluated for the first time at the beginning of the formal permit

processing phase.

5. Problems Identified During the HCP Development. 

Problems identified during the HCP development phase should be elevated to the Regional

Offices early in the process for suggestions that might be helpful to the applicant and the

Field Office for resolving differences. Even if the Services perceive that problems remain,

the applicant is entitled to submit a permit application. The Services should publish a Notice

of Receipt of the permit application in the Federal Register and duly process the application. 

However, prior to announcing receipt of such an application in the Federal Register, FWS or

NMFS may detail the HCP's deficiencies and the reasons for them to the applicant in writing.
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The above discussion applies to biological issues and issues of scientific judgement only. 

The Services need not process a permit application that lacks statutory HCP components or

other application components required by Federal regulation.

6. FWS Law Enforcement LEMIS System.

For FWS, all permits and permit numbers issued under the ESA must be issued through

LEMIS (Law Enforcement Management Information System), managed by the FWS Law

Enforcement Division. LEMIS contains the following information for each permit and

permit application: 

o Basic information on the permit applicant (e.g., name, address, telephone

number); 

o Pertinent dates (e.g., application receipt date, issuance and expiration dates,

report due dates, and revocation dates); 

o Permit authorizations and/or conditions; 

o Species involved; 

o Location of the authorized activities; and, 

o Identity of the permit issuing office. 

Once the application review process is complete and a decision is made to issue the permit,

the permit must be issued with a LEMIS number and the issuance must be recorded in

LEMIS. The terms and conditions that go with the permit are often printed on a separate

sheet of paper and are attached to the permit (see Appendix 15 for a sample permit form and

Appendix 17 for examples of issued permits). 

C. Internal FWS/NMFS Review 

1. Early Coordination Between the Field and Regional Office.

To ensure timely processing of permit applications, the Regional Office, Field Office,

Solicitor's Office (FWS) or General Counsel's Office (NMFS), and in some cases the NMFS

Office of Protected Resources, should begin communicating about an HCP effort as soon as

possible after serious discussions on the HCP begin. Early coordination helps avoid

processing delays by identifying and resolving internal disagreements and other problems

before the HCP is completed. This allows Regional Office staff to provide technical

assistance to the Field Office as needed, and ensuring Regional Office familiarity with the

HCP when the application is received by that office and formal permit processing begins. 
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Management should always be involved early in the process. Under no circumstances should

the Field Office and Regional Office find themselves in serious disagreement on the

substantive aspects of an HCP after a permit applicant who has requested Field Office

assistance in developing the HCP has submitted the application to the Regional Office for

approval.

There are various ways that coordination between the Field Office and Regional Office on a

developing HCP can occur: (1) periodic briefing statements from the Field Office to the

Regional Office; (2) meetings between Field Office and Regional Office staff; 

(3) joint Field/Regional review of HCP drafts; and (4) participation by Regional Office staff

management in important meetings (sometimes referred to as "milestone" meetings). 

Specific methodologies are left to the discretion of the individual Regions.

At a minimum, during the HCP development phase the Field Office should regularly apprise

the Regional Office about: (1) the proposed project or activity; (2) the species involved; (3)

current status of the planning effort including primary features of the mitigation program; (4)

positions with respect to the planning effort of affected public and private interests; (5) any

obvious or underlying controversies or issues that could affect the final outcome of the HCP

or the permit processing phase; and (6) any pertinent information that would help the

Regional Office understand the HCP and process the application when it is submitted. 

Questions about HCP policy interpretation or procedure by the Field Office should be

elevated quickly to the Regional Office when they arise. The Regional Office should discuss

the incorporation or implementation of any new policies, which are introduced while

preparing an HCP, with the Assistant Director for Ecological Services to ensure the

interpretation of the policy is sufficient and within the overall National policy guidance for

the HCP program. The Regional Office should also keep the Solicitor's or General Counsel's

Office informed and request assistance on legal issues promptly when needed.

If the Regional Office, Solicitor's Office, or General Counsel's Office has specific concerns

about ongoing or pending HCPs or foresees any problems with pending permit applications

in light of section 10 permit issuance criteria or other requirements, it should notify the Field

Office as soon as possible. The Field Office and Regional Office must then jointly resolve

any outstanding internal concerns. Briefing statements and other written records of

coordination between the Field and Regional Office during the HCP development phase

should be maintained as part of the administrative file. They may also be forwarded to other

FWS/NMFS Regions to aid inter-Regional awareness of HCP activities. 

2. Distribution of the Application Package. 

The Regional Office that receives the permit application package should send the package to

the following offices for review, generally requesting comments within 30 days; this should

be done as early as possible so that this review period can run concurrently with the 30-day

public comment period: 
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o The appropriate Solicitor's (FWS) or General Counsel's (NMFS) Office with a

written request for review, unless legal review is waived (see Section C.4

below).

o For FWS, the Assistant Regional Director(s) of Law Enforcement with

jurisdiction over the applicant's Region of residence, and the Region(s) where the

proposed taking would occur. The appropriate ARD and ARD-LE should

jointly determine whether, and under what circumstances, FWS law enforcement

personnel need to review the entire application package. Such review is advised

if there are questions about the enforceability of the HCP or the HCP involves

other potential law enforcement issues.

For FWS, check with Law Enforcement whether LEMIS gives a "PRIOR

INVESTIGATION RECORD" warning about the applicant. If such a warning

appears, a permit may not be issued until the ARD-LE approves.

For NMFS, the Regional Law Enforcement Division with jurisdiction over the

applicant’s Region of residence, and the Region where the proposed taking

would occur. The Regional Director and Law Enforcement Division will

determine whether further review is necessary.

o If the application package is submitted to a Regional Office other than the

Regional Office with lead responsibility for the affected species, comments from

the lead Region and other Regions in the species' range should be requested.

o The Field Office conducting the internal section 7 consultation, if that office is

different than the Field Office that assisted in developing the HCP [see Section

C.3(b) below]. 

o The state fish and wildlife conservation agencies of states in which the proposed

taking will occur, as well as any Federal agencies that are directly involved in or

affected by the HCP program. This may not be necessary if these agencies

received the package directly from the permit applicant.

o Where appropriate, technical scientific comment could be solicited from species

experts within or outside the Services and from the recovery team if one is

available.

3. Internal Section 7 Consultation.

Under section 7 of the ESA, issuance of an incidental take permit by FWS or NMFS is a

Federal action subject to section 7 compliance. This means the Services must conduct an

internal (or intra-Service) formal section 7 consultation on permit issuance. For FWS, this
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can be conducted between the Regional Director's office, which issues the permit, and the

Ecological Services office, which is responsible for the endangered species program. It may

also be conducted between the Assistant Regional Director for Ecological Services and the

Field Office that assisted the applicant in developing the HCP. It is strongly encouraged to

include the section 7 biologist in the developmental process of the HCP, so that the section 7

requirements can be addressed early in the process to eliminate possible difficulties or the

potential call of jeopardy at the end of the process. The Services regard these two processes

as concurrent and related. 

For NMFS, consultation may be conducted between the Field Office and the Regional

Director or between the Endangered Species Division and the Office of Protected Resources

in Washington, D.C. In the HCP context, informal consultation may be considered to

include all Service Field Office/Regional Office coordination and assistance to the applicant

during the HCP development phase. Formal consultation on a section 10 permit typically is

not initiated until the permit processing phase. 

a. Role of the Section 7 Consultation.

The purpose of any formal consultation is to insure that any action authorized, funded, or

carried out by the Federal government is not likely to jeopardize the continued existence of

any listed species or result in the destruction or adverse modification of critical habitat of

such species. Formal consultation terminates with preparation of a biological opinion, which

provides the Services' determination as to whether the proposed action is likely to jeopardize

the continued existence of a listed species or result in the destruction or adverse modification

of designated critical habitat. Internal consultation on a section 10 action ensures that

issuance of the permit meets ESA standards under section 7. In practice, because one of the

section 10 issuance criteria is the same as the regulatory definition of jeopardy under section

7 (see Chapter 7, Section B.4), the section 7 consultation represents a last internal "check"

that the fundamental standard of avoiding jeopardy has been satisfied. 

Another purpose of formal section 7 consultation is to develop reasonable and prudent

measures and terms and conditions to minimize anticipated incidental take, or, if necessary,

reasonable and prudent alternatives to eliminate the risk of jeopardy. These are included

with the biological opinion. However, since the Services ordinarily will have provided

technical assistance in developing the HCP, and included all necessary mitigation, reasonable

and prudent measures or alternatives rarely will need to be developed during the section 7

consultation. This should be necessary only in cases where an applicant did not consult with

the FWS or NMFS in developing the HCP or did not incorporate Service recommendations

and such measures or alternatives are necessary to satisfy the requirements of section 7.

Reasonable and prudent measures are defined as required actions identified during formal

intra-Service consultation which the Regional Director believes necessary or appropriate to

minimize the impacts of incidental take. Reasonable and prudent measures, if necessary, can
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be used to modify the HCP. However, such adjustments should be made only if they are

minor in scope, and they ensure compliance with the requirements of the ESA. There should

be very few cases where the Services introduce reasonable and prudent measures at the end

of the HCP process since such matters should have been fully discussed with the permit

applicant prior to the submission of the HCP. Any changes necessitated by the reasonable

and prudent measures should be discussed in advance with the applicant.

b. Who Conducts the Section 7 Consultation? 

The Services must be held to the same rigorous consultation standards that other Federal

agencies are required to meet under section 7. This means, in part, that internal

consultations on section 10 permit applications should be as impartial as possible. However,

it is also important that section 7 consultation on a permit application does not result in

otherwise avoidable delays when meeting target permit processing times. Such delays may

result if the section 7 consultation is assigned to an office too far removed from the location

and circumstances of the HCP. 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. The biological opinion is then reviewed and finalized by the

Regional Office processing the permit application. This ensures a good balance between

independent review and timely permit processing. The biological opinion may also be

finalized and signed by the Field Office, if the Regional Director has delegated the authority

to do so. 

This handbook allows FWS and NMFS Regional Offices and Field Offices the discretion to

use any reasonable method for conducting internal section 7 consultations, so long as (1) the

resulting determination is reviewed or finalized by Service staff other than the Field Office

staff HCP representative; and (2) the method does not result in failures to meet permit

processing times described on pages 1-14 and 6-3.

c. Conferences on Proposed Species.

Under Section 7(a)(4) of the ESA and 50 CFR 402.10, a Federal agency must "confer" with

the FWS or NMFS "...on any agency action which is likely to jeopardize the continued
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existence of any species proposed to be listed under section 4 or result in the destruction or

adverse modification of critical habitat proposed to be designated for such species." Thus,

the Services must confer, formally or informally, on any HCP and section 10 permit

application that addresses proposed species or proposed critical habitat. Technically, this

needs only be done if issuance of the permit is likely to result in jeopardy to a proposed

species or adverse modification of proposed critical habitat; this should not occur if the FWS

or NMFS has assisted the applicant in preparing the HCP. Nevertheless, the Services should

document any conclusion reached that issuance of the section 10 permit is not likely to

jeopardize proposed species or adversely modify proposed critical habitat. This information

can be included with the biological opinion prepared for listed species addressed in the HCP,

thus avoiding the need for a second section 7 document. The FWS/NMFS section 7

handbook contains further information about preparation of section 7 conference documents. 

For purposes of section 10 permit applications, FWS and NMFS will treat candidate species

or any species (e.g., unlisted species) that are adequately covered in an HCP (see Chapter 4,

Section A) in the same manner as proposed species with respect to conferencing procedures. 

This will ensure that such species have been addressed by the Services with respect to

section 7 requirements should they become listed after the permit has been issued. Refer to

the FWS’s Endangered Species Act Intra-Service Consultation Handbook for further

guidance.

d. Biological Opinion Formats/Requirements.

It is essential that section 7 consultation on a section 10 permit application be expeditiously

completed and that the resulting biological opinion is legally sound. The following

suggestions are provided.

Incorporation by Reference between the Biological Opinion & Set of Findings A biological

opinion for an HCP and the Set of Findings (which describes how the HCP meets statutory

issuance criteria) can also be duplicative. To avoid this, the Set of Findings may incorporate

the biological opinion by reference to the extent that they duplicate each other. This may

include incorporating the description of the project and the jeopardy analysis. 

Cross Referencing An HCP contains many of the same components typically provided in

biological opinions--including a project description, assessment of impacts, and description

of a mitigation program. Significant consolidations to the HCP, through cross referencing,

should be avoided since the HCP must meet the statutory requirements of section

10(a)(2)(A) and be a stand alone document, however, the biological opinion can be treated

more flexibly. When possible without the loss of clarity or legal adequacy, the biological
6-16

opinion could cross-reference technical information provided in the HCP rather than repeat

the same information.

Requirements of the Biological Opinion Under Federal regulation [50 CFR 402.14(h)-(i)]

and section 7(b)(3) and 7(b)(4) of the ESA, the biological opinion for a section 10(a)(1)(B)

permit application must contain, at a minimum:

o A summary of the information on which the opinion is based. This should

include a brief description of the HCP and other documents prepared with the

HCP, including memoranda of understanding, biological reports, and the NEPA

analysis. 

o A detailed discussion of the effects of the action on listed species or critical

habitat. 

o The Services' opinion on whether the action is likely to jeopardize the continued

existence of a listed species or result in the destruction or adverse modification

of critical habitat. This constitutes the Service's "jeopardy" or "no jeopardy"

determination with respect to the permit application.

In most cases, reasonable and prudent measures and terms and conditions will simply require

compliance with the permit, HCP, or IA, since these documents typically have identified the

equivalent of such measures and ensured their implementation. The only exception to this is

if the Services determine that additional measures are needed to minimize the impact of

taking, or the Services and applicant agree to include additional terms and conditions not

otherwise specified in the HCP. Reasonable and prudent alternatives are only needed in

those rare cases when the Services determine that permit issuance would be likely to

jeopardize the continued existence of the species involved.

The Incidental Take Statement Section 7(o)(2) states that "any taking that is in compliance

with the terms and conditions specified in a written statement provided under subsection

(b)(4)(iv) of this section [referring to the terms and conditions] shall not be considered to be

a prohibited taking of the species concerned." This "incidental take statement" provides a

take authorization mechanism for Federal actions similar to section 10(a)(1)(B) for nonFederal actions.

What is the role of the incidental take statement in a biological opinion for an HCP

application? This can create considerable confusion among HCP reviewers since the take

proposed under an HCP ultimately is authorized by the section 10(a)(1)(B) permit, not the

incidental take statement. At the same time, the section 7 implementing regulations [50 CFR

402.14(i)] require an incidental take statement in a biological opinion where the Federal

action is expected to result in take but will not violate section 7(a)(2).
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Clearly, the Service action of issuing an incidental take permit will result in take. Thus,

inclusion of an incidental take statement with a biological opinion for an HCP application is

necessary to avoid any uncertainty about regulatory compliance with 50 CFR 402.14(I). At

the same time, any reasonable and prudent measures or terms and conditions included with

an incidental take statement for an HCP application should be consistent with the

conservation program in the HCP and any terms and conditions included with the permit

except in instances described above. It is also wise to avoid unnecessary duplication between

the terms and conditions of the permit and those of the incidental take statement.

With these considerations in mind, the following language is recommended for the incidental

take statement for any section 10(a)(1)(B) permit application:

Section 9 of the Act and Federal regulation pursuant to section 4(d) of the Act

prohibit the take of endangered and threatened species, respectively, without special

exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such conduct. Harm is further

defined to include significant habitat modification or degradation that results in death

or injury to listed species by significantly impairing essential behavioral patterns,

including breeding, feeding, or sheltering. Incidental take is defined as take that is

incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. 

Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and

not intended as part of the proposed action is not considered to be prohibited taking

under the Act provided that such taking is in compliance with this Incidental Take

Statement.

The proposed [name] HCP and its associated documents clearly identify anticipated

impacts to affected species likely to result from the proposed taking and the measures

that are necessary and appropriate to minimize those impacts. All conservation

measures described in the proposed HCP, together with the terms and conditions

described in any associated Implementing Agreement and any section 10(a)(1)(B)

permit or permits issued with respect to the proposed HCP, are hereby incorporated

by reference as reasonable and prudent measures and terms and conditions within this

Incidental Take Statement pursuant to 50 CFR 402.14(I). Such terms and conditions

are non-discretionary and must be undertaken for the exemptions under section

10(a)(1)(B) and section 7(o)(2) of the Act to apply. If the permittee fails to adhere

to these terms and conditions, the protective coverage of the section 10(a)(1)(B)

permit and section 7(o)(2) may lapse. The amount or extent of incidental take

anticipated under the proposed [name] HCP, associated reporting requirements, and

provisions for disposition of dead or injured animals are as described in the HCP and

its accompanying section 10(a)(1)(B) permit[s]. 

In some cases, the Service(s) must specify authorized levels of incidental take in the

incidental take statement as well as in the HCP and permit. However, the incidental take
6-18

levels specified in the HCP and permit and those specified in the incidental take statement

should be consistent with each other. In such cases, the following introductory paragraph

should be included:

Based on the proposed [name] HCP and on the analysis of the effects of the

proposed action provided above, the Service[s] anticipates that the following take

may occur as a result of the proposed action:

If requested by the applicant, the following paragraph may be included where plants are

addressed in the HCP and are named on the permit. 

Generally, section 9 take prohibitions do not apply to listed plant species on nonFederal lands. Therefore, listed plants typically do not have to be included in the

incidental take permit. However, State law may have take prohibitions associated

with the HCP. In addition, the Service must review the effects of its own actions on

listed plants, even when those listed plants are found on private lands. In approving

an HCP and issuing an incidental take permit during the intra-Service section 7

consultation, the Service must determine that the permit will not “jeopardize the

continued existence” of listed plants. In the interest of conserving listed plants, the

Service may request that the landowner voluntarily assist the Service in restoring or

enhancing listed plant habitats that are present within the area covered by the HCP. 

4. Legal Review of the Application Package.

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

associated documents meet the legal requirements of the ESA. This is especially important

for an HCP, which has specific requirements, and for Implementing Agreements which

address unique or first impression issues. It is also important for large-scale or regional

HCPs which are often complex and address a variety of activities. The need for legal review

of "low-effect" HCPs is less critical, since these projects are by definition minor in scope and

impact (see Chapter 8).

For NMFS, all section 10 permit applications must receive legal review by the General

Counsel’s Office. For FWS, it is agency policy to require Solicitor's Office review of all

section 10 permit applications, with the exception noted below. This will be true unless

additional exceptions are allowed by a line authority no lower than the Assistant Regional

Director for Ecological Services. However, Solicitor's review of HCPs categorized as "loweffect" can be waived if the HCP meets all applicable criteria for low-effect HCPs as defined

in Chapter 1, Section F.2. The template in Appendix 4 can be used as a basis for developing

Implementing Agreements for HCPs that are not low-effect, though Solicitor's Office review

would be required in such cases.
6-19

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 Solicitor's Office on a permit application

package should begin as soon as possible in the permit processing phase and ideally during

the HCP development phase. After Solicitor review is complete, the Solicitor’s Office

should forward a memorandum to the RD or appropriate ARD stating that it has reviewed

the IA and other documents, as applicable, and that they meet statutory and regulatory

requirements. 

5. Preparing the Signature Package.

When all HCP and NEPA analyses have been completed and reviewed by appropriate

Service staff, the Regional Ecological Services Office (FWS), or Endangered Species

Division or Environmental and Technical Services Division (NMFS), should sign those for

which it has signature authority and assemble those and all others that are necessary for

permit issuance into a "signature package." This package is then forwarded to the Regional

Director's Office for finalization and signature (for FWS), or to the Regional Director's

Office or Office of Protected Resources in Washington, D.C. (for NMFS). Signature

authority for HCP documents may vary somewhat from Region to Region. Typically, for

FWS documents requiring signature by the appropriate ARD are the: (1) biological opinion

(unless signed by the Field Office) and (2) Set of Findings. Documents requiring signature

by the Regional Director or Deputy Regional Director are the: (1) Implementing Agreement;

(2) NEPA decision document (EAM, FONSI, or ROD); and (3) the permit. The signed

biological opinion and Set of Findings should be attached to the signature package for the

Regional Director's or Deputy Regional Director's reference. Where applicable, the

Solicitor's memorandum stating that the HCP and associated documents meet statutory

requirements also should be attached to the signature package. For NMFS, the permit

documents will require the signature of the Chief, Endangered Species Division, and

Director, Office of Protected Resources, if the permit is issued in Washington, D.C., or the

Regional Director and Environmental and Technical Services Division if it is issued by the

Regional Office. All of the supporting documents must be signed prior to the issuance of the

permit.

The incidental take permit is considered effective as of the date and time the permit is signed. 

Immediately upon signature, the original permit and one original copy of the Implementing

Agreement (if required) must be forwarded to the new permittee.

6. New Policies or Legal Questions.

Both FWS and NMFS should discuss the incorporation or implementation of any new

policies, which are introduced while preparing an HCP, with the appropriate legal counsel

and the Assistant Director for Ecological Services (FWS) to ensure the interpretation of the

policy is legally sufficient and within the overall National policy guidance for the HCP
6-20

program or the new policy. Additionally, it is imperative to discuss any legal questions (e.g.,

statutory or regulatory issues) or uncertainties with the appropriate legal counsel (the

Solicitor for FWS and the General Counsel for NOAA) early in the permit development or

permit processing phases. 

D. Federal Register Notices of Receipt

1. Timing of the Notice.

Under section 10(c) of the ESA and Federal regulation [50 CFR 17.22 and 17.32(b)(1) (ii)

or 50 CFR 217], publication of a Notice of Receipt of a permit application in the Federal

Register is required for each section 10 permit application received by the FWS or NMFS. 

NEPA regulations or FWS policy also require publication of Notices of Availability of NEPA

analysis (see Chapter 5, Section A). These Federal Register notices should be published after

submission of the complete application package and final review of the application package

by Regional Office staff, but as early in the formal processing phase as possible. The notices

must offer the public at least 30 days to comment on the documents where an EA is being

prepared. A longer review is required for a draft EIS.

To streamline the public review process, the Notice of Receipt of a Permit Application and

Notice of Availability of the NEPA analysis should be published concurrently.

2. Content of the Notice.

The Federal Register Notice of Receipt of an Incidental Take Permit Application must

include the following information (see Appendix 16 for sample Notices of Receipt):

o Applicant's name and city and state of residence; 

o For FWS, the application file number (PRT- ) as issued by LEMIS; 

o A brief description of the proposed activity, the species involved, estimated

number of individual animals or habitat quantity to be taken, affected locations,

and proposed length of the permit, if known;

o Length of the comment period (minimum is 30 days from date of publication);

for a draft EIS, a minimum 45-day comment period is required;

o Name and mailing address of the office(s) from which a copy of the application

package may be obtained; street address and business hours where persons may

view the application in person; and address of office where comments are to be

submitted, including FAX number, if available; 
6-21

o The name, address, and telephone number of a Service employee to contact for

further information; and

o Supplementary information including a brief description of the measures the

applicant will implement to minimize, mitigate, and monitor the incidental taking;

a summary of the alternatives considered; a description of long-term funding, if

any; and a summary of significant environmental effects. The notice should be

brief but of sufficient detail to convey the main aspects of the proposed activity.

3. Submission to the Office of the Federal Register and PDM.

For FWS, when the Federal Register notice is ready for publication, three copies of the

notice with original signatures by the appropriate ARD on all copies, and the name and title

of the signatory below the signature, must be submitted to the Office of the Federal Register

at the address below. A transmittal letter is usually included.

U.S. Mail

National Archives & Records Administration

Office of the Federal Register

Washington, D.C. 20408 

(Telephone 202/523-3187) 

Overnight/Courier Delivery

Office of the Federal Register

Room 700

800 North Capitol Street, Northwest

Washington, D.C. 20002

(Telephone 202/523-3187)

Federal Register notices generally are published within 3 working days after receipt by the

Office of the Federal Register, if received prior to 2:00 p.m.

A copy of the Federal Register notice, with the originating office's billing code, should also

be sent to the FWS Division of Policy and Directives Management (PDM) in Washington,

D.C. at the address below. The notice should be sent to PDM no later than the time it is sent

to the Office of the Federal Register. The purpose of this is to allow the Washington D.C.,

PDM Office to assist in prompt publication of the notice in case questions arise after the

notice has been submitted. 

U.S. Fish and Wildlife Service

Division of Policy and Directives Management

ARLSQ-224

4401 N. Fairfax Drive
6-22

Arlington, VA 22203

FAX: 703-358-2269

For NMFS, all Federal Register notices must be cleared through the Office of Fisheries

Conservation and Management in Washington, D.C. (see Appendix 12 for address).

If the Regional Office believes an HCP permit application is potentially controversial, faces a

likelihood of legal challenge, or otherwise address issues deserving of Secretarial attention, it

should notify the Regional Public Affairs Office and request the Regional Public Affairs

Officer to coordinate with appropriate FWS or Department personnel in Washington, D.C. 

For NMFS, the Office of Protected Resources should be notified (see Appendix 12 for

address).

4. Providing HCP Documents to the Public/FOIA Considerations.

Once a permit application is received, the Service should encourage the applicant to involve

all appropriate parties. This is especially true for complex and controversial projects. The

Service should also notify interested parties when documents (e.g., NEPA analysis or HCP)

become available for public review. In addition, during the public comment period the

Service may wish to hold informational meetings and answer questions that members of the

public may have regarding the HCP or permit issuance.

During the comment period, the Services should provide the permit application package to

those requesting copies. The Services should provide information that documents

compliance with the requirements of section 10 (a)(2) of the ESA. The Service should not

release confidential, proprietary, or individual privacy information which may be protected

under 43 CFR 2.13(c)(4) and (6) respectively. If the applicant is a business or sole

proprietorship, the Services should review the application for any information that may be

deemed "confidential business information" or could cause "competitive harm." In such

cases, the program should release information in accordance with guidance found in 43 CFR

2.15(d). If the applicant is an individual, the information in block 4 of the application (date

of birth, social security number, etc.) must be blocked out before mailing in accordance with

the Privacy Act and FOIA (see Appendix 11). The program should also review the

remainder of the application for information that could invade personal privacy.

In both cases, the Services should send the requestor a note explaining what was deleted and

that it may be available under the FOIA. If the requestor filed a FOIA request initially for the

information, the program in consultation with the Solicitor's office, must provide an

explanation of what material was exempted and why; and provide appeal rights to the

requestor in accordance with the FOIA. 

Documents that reflect intra-agency or inter-agency deliberations are most likely exempt

under the FOIA. Exemption would depend on whether the agency can show such
6-23

information is predecisional and deliberative, foreseeable harm will result in their release; and

apply to both the deliberations and any other information which is not reasonably segregated

from them.

After the comment period, the Services should provide copies of applications and related

material to those requesting a copy. Though a FOIA request is not required to receive

information, release of the information should still be done in accordance with the FOIA. 

The application package, including the NEPA analysis, must be provided to all affected

interests who request the package or have a record of significant interest in the planning

program. For EISs it is wise to prepare a distribution list before the EIS is printed, since an

adequate number of copies must be printed to meet the demand. For HCPs, Field Offices

should estimate the number of copies needed to send to commenters and the affected public

and arrange for duplication.

When requested, copies of the application package should be mailed immediately since the

public has a limited time to review documents and submit comments.

If additional significant information is submitted by the applicant after the 30-day comment

period has closed, which requires a change to the application, the comment period should be

reopened through a second Federal Register notice.

The Services are not obligated to consider comments received after the 30-day comment

period has closed, but may elect to do so, especially if they contain significant biological

information or if discussions with the applicant have continued after the close of the

comment period. All late comments must then be considered, however. If any new

information received from either commenters or the applicant is of relevance to the decision

regarding issuance of the permit, it will be necessary to reopen the public comment period. 

5. Objection to the Permit. 

Any individual may object to issuance of an incidental take permit for an endangered species

during the 30-day comment period. An objection should be in writing, refer to the permit

application number, and provide specific, substantive reasons why the individual believes the

application does not meet the permit issuance criteria or other reasons why the permit should

not be issued. For FWS, if the objector requests notification of the final action in writing and

the FWS decides to issue the permit, the agency must notify the objector in writing that the

permit will be issued. A reasonable effort must be made to accomplish this notification at

least 10 days before permit issuance. If notification is verbal, it must later be followed in

writing. If notification prior to permit issuance could lead to harm to the endangered species

or population involved, or unduly hinder proposed activities to be authorized, FWS may

dispense with prior notification; however, written explanation for doing so must be provided

to the objector following permit issuance.
6-24

The objection process described above does not apply to threatened species. Under 50

CFR 17.32(b)(1)(ii), the FWS must publish notice in the Federal Register for each

application to incidentally take a threatened species, and the notice should invite written

comments from interested parties during a 30-day comment period. The FWS is not

required to address objections to permit issuance for threatened species in the manner

described above, though doing so is recommended.

6. Notice of Permit Issuance, Amendment, Denial, or Abandonment.

Although not required by law or Federal regulation, it is FWS policy to notify the public of

their section 10 permit application decisions. NMFS is required by its regulations at 50 CFR

222.24(c) to publish a notice of the decision within 10 days after the date of issuance or

denial. Notices of permit issuances, denials, and amendments should be published in the

Federal Register on a quarterly or biannual basis. A 45-day waiting period is recommended

prior to publication of permit denial notices to allow time for appeals by the applicant. 

Appendix 18 contains "templates" for preparing Notices of Issuance for a single permit and

for multiple permits. Notice of the abandonment of a permit application by the applicant

need not be published.

E. Permit Issuance Conditions and Reporting Requirements

The permit (for FWS, Form 3-201; for NMFS, agency letterhead) must identify the species,

stipulate the activities authorized, and indicate the location(s) where the activities can be

conducted. The permit, together with its attached terms and conditions, must contain

sufficient information so that no question remains by the permittee or an enforcement officer

as to the scope of the authorized taking. Appendix 17 contains examples of issued FWS

incidental take permits.

1. Permit Conditions.

The Services have the authority to impose terms and conditions in the permit necessary to

carry out the purposes of the permit, including but not limited to, monitoring and reporting

requirements necessary for determining whether such terms and conditions are being

complied with. The terms and conditions placed in the permit should be the same as, or a restatement of, those described in the final HCP, with the exception of standard conditions that

go into all permits. However, in some cases FWS or NMFS may need to incorporate

additional conditions resulting from the section 7 consultation. Reasonable and prudent

alternatives, if provided in the section 7 consultation to avoid jeopardy, as well as reasonable

and prudent measures and terms and conditions, if included in the incidental take statement,

must be included in the permit conditions. Permits should also identify protocols for

handling dead and/or injured specimens of protected species taken under authority of the

permit. 
6-25

2. Permit Duration. [See 50 CFR 13.21(f) or 50 CFR 222.22(e)]

The Conference Report for the 1982 Section 10 amendments states, "The Secretary is vested

with broad discretion in carrying out the conservation plan provision to determine the

appropriate length of any section 10(a) permit issued pursuant to this provision in light of all

of the facts and circumstances of each individual case" (H.R. Rep. No. 97-835, 97th

Congress, Second Session).

Thus, the allowable duration of a permit is flexible but an expiration date must be specified

(for FWS, in block 7 of the permit Form 3-201). The duration of planned activities, the

potential positive effects to listed species provided under the permit, and the potential

negative effects to the species that may result from premature permit expiration should be

considered in determining permit length. Also, local government agencies may wish to tie

the permit expiration date to local land use plans. Development or land use activities and the

conservation program proposed in the HCP may require years to implement. The Services

must assure the applicant that authorizations under the permit will be available for the life of

the project, and the public that conservation measures under the permit will remain in effect

for as long as necessary to implement the conservation program.

3. Distribution of Copies of the Permit.

A copy of the issued permit should be provided to the Endangered Species Division in

Washington, D.C. (FWS and NMFS), applicable Field Offices, other Federal agencies

involved in the HCP, and affected state wildlife and conservation agencies.

4. Reporting Requirements. [See 50 CFR 13.45; 50 CFR 17.22(b)(3) and 17.32(b)(3) 

or 50 CFR 222.22(d)(1)]

The permit should include reporting requirements necessary to track take levels occurring

under the permit and to ensure the conservation program is being properly implemented. 

Federal regulation (50 CFR 13.45) requires annual reports unless otherwise specified by the

permit. The HCP itself will often specify reporting requirements. Unless reporting

requirements in addition to those in the HCP are deemed to be necessary, reporting

requirements in the HCP and the permit should be the same. Failure to submit adequate

reports as required by the permit is a violation of the permit and may lead to permit

suspension or revocation. 

o Each permittee must file a report, even if no activity was conducted under the

permit in that reporting interval.

o No permittee should be required to include in a report information of a private or

personal nature (for individuals). Sensitive business information or information
6-26

that is otherwise considered proprietary (for businesses) should also generally

not be required.

o If a report required by the permit is not submitted or is inadequate, the permittee

should be notified in writing and offered at least 30 days to demonstrate

compliance. If the permittee fails to comply within the allotted time, permit

suspension procedures (50 CFR 13.27) or revocation procedures (50 CFR 13.28

for FWS, 50 CFR 222.27 for NMFS) should be initiated.

o Report due dates should be flexible and wherever possible tailored to the

activities being conducted under the permit (e.g., due at the end of a particular

stage of the project). If possible, the due date should also be coordinated with

other (e.g., state) reporting requirements so the permittee can satisfy more than

one reporting requirement with a single report. For low-effect HCPs in which

the project or activity is completed in less than a year or in which annual

reporting is otherwise deemed to be unnecessary, a single "post-activity" or

"post-construction" report is often adequate.

o A copy of the report, or a notice that it is available should be sent to state

wildlife agencies and other appropriate parties, either by the applicant or the

FWS or NMFS.

o Reports should be monitored closely to ensure that they contain adequate

information and the permittee is complying with the authorizations and

conditions of the permit. For FWS, information about apparent violations should

be forwarded to the appropriate ARD-LE Office and Law Enforcement special

agent. The Regional Office, in coordination with Law Enforcement, should

immediately notify the permittee of apparent noncompliance and request an

explanation. For NMFS, permit violations should be reported to the appropriate

Regional Law Enforcement Division and NOAA General Counsel for

Enforcement and Litigation.

F. Permit Denial, Review, and Appeal Procedures 

1. Permit Denial.

If the HCP and associated documents do not satisfy issuance criteria under the ESA and

Federal regulation, the permit application must be denied. The applicant must be notified of

the denial in writing and the reasons for the denial, of applicable regulations resulting in the

denial, and of the applicant's right to request reconsideration of the permit application. For

NMFS, denials must be made in accordance with 15 CFR part 904.

2. Review Procedures. [See 50 CFR 13.29 or 50 CFR 220.21]
6-27

A section 10 applicant has access to a two-tiered system of review of a permit denial within

the issuing office: (1) if the permit is denied, the applicant can request reconsideration of the

permit application; and (2) if the request for reconsideration is denied, the applicant can

appeal the decision. To ensure independent review of a permit denial at each stage, review

decisions and signature authority should be as follows:

 

o For FWS, initial permit denials should be signed by the appropriate Assistant

Regional Director; 

o Decisions on requests for reconsideration should be signed by the Deputy

Regional Director (DRD);

o Appeal decisions (the final administrative action) should be signed by the

Regional Director (RD).

For NMFS, the above decisions must be signed by the Regional Director or the Director of

the Office of Protected Resources Division in Washington, D.C.

3. Requests for Reconsideration. [See 50 CFR 13.29(a)-(d) or 50 CFR 220.21]

For FWS, a permit applicant may request reconsideration of (1) denial of a permit

application, renewal, or amendment request; and (2) amended, suspended, or revoked

permits, except for permit actions required by changes in statute or regulations. The

applicant's request must meet the criteria outlined in 50 CFR 13.29, be in writing, be signed

by the applicant or a designated representative, and be addressed to the Deputy Regional

Director.

When the DRD's office receives a request for reconsideration, the ARD that issued the denial

must forward a copy of the applicant's file, along with a summary of the file's pertinent

points, to the DRD. If the DRD determines that permit issuance criteria have been satisfied,

the denial is reversed and a permit may be issued. If the denial is sustained, the DRD must

notify the applicant of the decision within 45 calendar days of receipt of the request. This

notification must be in writing, state the reasons for the decision, and describe the evidence

used to make it. The letter must also provide information concerning the applicant's right to

appeal, the office to which the appeal should be made, and the procedures for making the

appeal.

For NMFS, procedures for requests for reconsideration are addressed in 50 CFR 220.21.

4. Appeal. [See 50 CFR 13.29(e)-(f)]

For FWS, an applicant may appeal a second denial of the permit in accordance with 50 CFR

13.29(e)-(f). The written appeal request must be signed by the applicant or a designated
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representative and be addressed to the Regional Director. Before a decision is made, the

appellant may present oral arguments before the RD if the RD believes this could clarify

issues raised in the written record.

The RD shall provide the appellant with written notification of the appeal decision within 45

calendar days of receipt of the request. This time frame may be extended with good cause if

the appellant is notified of and concurs with the extension. The RD's decision on a permit

appeal constitutes the final administrative decision of the Department of the Interior.

5. Copies of Denials.

For FWS, a copy of all section 10 permit denials, including denial of reconsideration and

appeal requests, should be sent to all affected Field Offices, the ARD-LE, and the Division of

Endangered Species in Washington, D.C. For NMFS, copies should be sent to affected Field

Offices and Regional Offices and the Endangered Species Division in Washington, D.C.

G. Permit Amendments [See 50 CFR 13.23 or 50 CFR 222.25]

For FWS, amendment of existing permits may be requested by a dated letter signed by the

applicant and referencing the permit number. The $25 application fee is required unless the

applicant is fee exempt (see Appendix 10). Procedurally, a permit amendment application is

treated in the same way as the original permit application. However, documentation needed

in support of a permit amendment will vary depending on the nature of the amendment and

the content of the original HCP. If the amendment involves an action that was not addressed

in the original HCP, Implementing Agreement, or NEPA analysis, these documents may need

to be revised or new versions prepared addressing the amendment submitted. If the

circumstances necessitating the amendment were addressed in the original documents (e.g., a

previously unlisted species adequately addressed in the HCP is subsequently listed), then only

amendment of the permit itself is generally needed. See Chapter 4 for a discussion of how

previously unlisted species are treated if they are listed.

For NMFS, applications to modify a permit are subject to the same issuance provisions as an

original permit application as provided in 50 CFR 222.22.

H. Permit Renewal [See 50 CFR 13.22 or 50 CFR 220.24]

For FWS, Federal fish and wildlife permits may be renewed if indicated in block 4 of the

permit. Whether or not the permit is renewable should be determined by the Regional Office

when the permit is issued.

 

If the permittee files a renewal request and the request is on file with the issuing FWS office

at least 30 days prior to the permit's expiration, the permit will remain valid while the

renewal is being processed, provided the existing permit is renewable. The permittee may
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not take listed species beyond the quantity authorized by the original permit, however. A

renewal request must:

o Be in writing;

o Reference the permit number;

o Certify that all statements and information in the original application are still

correct or include a list of changes; 

o Provide specific information concerning what take has occurred under the

existing permit and what portions of the project are still to be completed; and

o Request renewal.

If a permittee fails to file a renewal request 30 days prior to permit expiration, the permit

becomes invalid after the expiration date. If the permittee seeks extension of the expiration

date only and proposes no additional taking, a public comment period generally is required. 

A permittee must have complied with annual reporting requirements to qualify for renewal.

For NMFS, requirements for permit renewal are contained in 50 CFR 220.24.

I. Permit Transferals 

Important Notice: On September 5, 1995, the Fish and Wildlife Service published a

proposed rule in the Federal Register amending the general regulations for its permit

program (50 CFR Part 13 and Part 17). The Service is currently drafting additional

language to clarify the relationship between the Part 13 and Part 17 procedures and a

proposed rule will be published in the near future. Consequently, some information

contained in this section may be outdated upon publication of a final rule. Users of

this handbook should check the revised permit procedures when available or contact

the Service's Division of Law Enforcement to ensure that the handbook’s description

of permit administration is consistent with the new regulations.

Congress amended section 10(a)(1) of the Act in 1982 to authorize new incidental take

permits associated with HCPs. Many HCP permits involve long-term conservation

commitments that run with the affected land for the life of the permit. The Services

negotiate such long-term permits recognizing that a succession of owners may purchase or

resell the affected property during the term of the permit. In other HCP situations, the HCP

permittee may be a State or local agency that intends to issue subpermits that authorize the

incidental take for the permit to those entities involved in the HCP. 
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The Services do not view these situations as problems since the terms of such permits

frequently run with the land, binding successive owners to the terms of the HCP. 

Landowners similarly do not view this as a problem as long as the Services can easily transfer

incidental take authorization from one purchaser to another. However, the new landowners

must be able and willing to assume the responsibilities associated with the permit (i.e., the

minimization/mitigation strategy and the terms and conditions of the permit) to receive the

assurances of the permit. 

If a landowner, who is a section 10(a)(1)(B) permittee, transfers ownership of the land that

occurs within an approved HCP, the Services will regard the new owner as having the same

rights with respect to the permit as the original landowner, provided that the new owner

agrees to be bound by the terms and conditions of the original permit. Actions taken by the

new landowner resulting in the incidental take of species covered by the permit would be

authorized if the new landowner agrees to the permit and continues to implement the

minimization and mitigation strategies of the HCP. 

To ensure that original permittees inform new landowners of their rights and responsibilities,

a section 10(a)(1)(B) permit must commit the permittee to notify the Services of any transfer

of ownership of any lands subject to the permit before the transfer is finalized. The Services

should attempt to contact the new landowner to explain the prior permit, and determine

whether the new landowner would like to continue the original permit or enter into a new

permit. In addition, the original permittee needs to work with the new landowner(s) to

ensure they understand the obligations associated with permit transfer. The Services will

provide any technical assistance necessary to ensure that all parties understand their rights

and responsibilities.

If, however, the new landowner does not agree to the terms and conditions of the original

permit, the original permittee must work with the Services to determine whether, and under

what circumstances, the permit can be terminated. In order to terminate the permit, the

Services must determine if the minimization and mitigation measures that were conducted up

to that point were commensurate with the amount of incidental take that occurred during the

term of the permit. If the incidental take occurred during the initial stages of implementing

the permit, but the minimization and mitigation measures occur throughout the term of the

permit, the Services shall require that the remainder of the minimization and mitigation

measures be implemented before the permit is terminated. In this fashion, the Services will

be able to ensure that there is adequate and sufficient minimization and mitigation for the

incidental take that occurred during the term of the permit.

J. Permit Violations, Suspensions, and Revocations

On occasion, the Services may find that a permittee has violated conditions of the permit. 

This may become evident through review of a permittee's annual report, a field inspection, or
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other means. Implementing Agreements sometimes contain provisions concerning the failure

of signatory parties to perform their assigned responsibilities under an HCP. 

1. Notifying Law Enforcement.

In the event of a known or suspected permit violation, the appropriate ARD-LE and Law

Enforcement Special Agent must be notified before any official action is taken (for FWS). If

the violation is deemed technical or inadvertent in nature, the ARD-LE may advise that the

permittee be sent a notice of noncompliance by certified mail or may recommend alternative

action to regain compliance with the terms of the permit. Concurrence from the ARD-LE

should be obtained before mailing any correspondence concerning an alleged permit violation

to avoid wording that could compromise a current or future investigation. For NMFS, the

appropriate Law Enforcement Division and NOAA General Counsel for Enforcement and

Litigation should be notified. 

2. Permit Suspension/Revocation. [See 50 CFR 13.27 and 13.28]

The Services may suspend or revoke all or part of the privileges authorized by a permit, if

the permittee does not: 

o Comply with conditions of the permit or with applicable laws and regulations

governing the permitted activity; or

o Pay any fees, penalties, or costs owed to the government.

If the permit is suspended or revoked, incidental take must cease and wildlife held under

authority of the permit must be disposed of in accordance with Regional Office instructions. 

For further information, consult the regulations on procedures to suspend or revoke permits.