APPENDIX 4:

 

 

"Template" Implementing Agreement

 
"Template" Implementing Agreement

This template has been designed primarily for use with simple HCPs, but may also be used in other cases.

Important Notice:

U.S. Fish and Wildlife Service. The template may be used to develop Implementing Agreements by

filling in project-specific information where indicated. When used in this manner, no Solicitor’s Office

review is necessary. However, when provisions in addition to those provided in the template are

included, or if any provisions are deleted or the template is otherwise significantly modified, such

agreements should be reviewed by the Solicitor’s Office prior to approval by the appropriate FWS

Regional Director. Attachments 1, if used to address habitat compensation measures in Implementing

Agreements, should be reviewed by the Solicitor’s Office prior to approval.

National Marine Fisheries Service. The template may also be used to develop Implementing

Agreements for HCPs for marine species, anadromous species, and hatchery operations. However, it

is NMFS policy that all Implementing Agreements will be reviewed by the National Oceanic and

Atmospheric Administration’s General Counsel’s Office.
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IMPLEMENTING AGREEMENT

by and between

[APPLICANT]

U.S. FISH AND WILDLIFE SERVICE and/or

NATIONAL MARINE FISHERIES SERVICE

and the

[STATE] DEPARTMENT OF FISH AND GAME [if applicable]

TO ESTABLISH A MITIGATION PROGRAM FOR ENDANGERED [THREATENED] SPECIES

AT THE PROPOSED [APPLICANT] [PROJECT OR ACTIVITY SITE NAME] [SITE LOCATION,

INCLUDING LEGAL DESCRIPTION, COUNTY, AND STATE].

This Implementing Agreement ("Agreement"), made and entered into as of the ___ day of ________, 199_,

by and among [APPLICANT], the UNITED STATES FISH AND WILDLIFE SERVICE (FWS) and/or

NATIONAL MARINE FISHERIES SERVICE (NMFS) (collectively, the Services), and the (STATE)

DEPARTMENT OF FISH AND GAME (SDFG) [if applicable], hereinafter collectively called the "Parties,"

defines the Parties’ roles and responsibilities and provides a common understanding of action that will be

undertaken to minimize and mitigate the effects on the subject listed and unlisted species and their habitats of

the proposed [project or activity site name and location].

1.0 RECITALS

This Agreement is entered into with regard to the following facts:

WHEREAS, the proposed [project or activity name] site selected after environmental review has

been determined to be habitat for the federally listed [species]; and,

WHEREAS, the proposed [project name] site also has been determined to be habitat for the

[species], a Federal proposed or candidate species [if applicable], and the [species], a State listed

species [if applicable] and the [species], a rare or declining species [if applicable]; and,

WHEREAS, [applicant], with technical assistance from the Service[s] and the SDFG, has developed

a series of measures, described in the Habitat Conservation Plan, to minimize and mitigate the effects

of the proposed [project or activity] upon the subject listed and unlisted species and their associated

habitats; and,

THEREFORE, the Parties hereto do hereby understand and agree as follows:

2.0 DEFINITIONS

The following terms as used in this Agreement shall have the meanings set forth below:
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2.1 The term "Permit" shall mean an incidental take permit issued by the Service[s] to

[applicant] pursuant to Section 10(a)(1)(B) of the Endangered Species Act (ESA).

2.2 The term "Permit Area" shall mean the [project or activity name] area consisting of

approximately [x] acres in the [legal description] in [County and State] as depicted in Figure

[x] of the [project or activity] Habitat Conservation Plan.

2.3 The term "Permittee" shall mean [applicant].

2.4 The term "Conservation Plan" shall mean the Habitat Conservation Plan prepared for the

proposed [project or activity].

2.5 The term "Plan Species" shall mean species adequately covered in the HCP and identified in

Section 1.0 of this Agreement.

2.6 [if applicable] The term "Compensation Lands" shall mean (a.) the [x] acres of land

acquired by [applicant] and transferred to the Service[s] [if applicable], the SDFG [if

applicable] or an approved third party for management pursuant to the terms of the

Conservation Plan as habitat for the Plan Species pursuant to Section [x] of this Agreement

[if applicable] or (b.) the [x] acres of land owned or controlled by [applicant] and reserved

or set aside as habitat for the conservation of the Plan Species and to be managed pursuant

to Section [x] of this Agreement and the terms of the Conservation Plan.

2.7 The term "unforeseen circumstances" means any significant, unanticipated adverse change in

the status of species addressed under the HCP or in their habitats; or any significant

unanticipated adverse change in impacts of the project or in other factors upon which the

HCP is based. The term "unforeseen circumstances" as defined in this Agreement is

intended to have the same meaning as "extraordinary circumstances" as used in the No

Surprises policy.

3.0 HABITAT CONSERVATION PLAN

Pursuant to the provisions of Section 10(a)(1)(B) of the ESA and Section [x] of the [State]

Endangered Species Act [if applicable], [applicant, hereinafter referred to as Permittee] has prepared

a Habitat Conservation Plan (HCP) and submitted it to the Service[s] with a request that the

Service[s] issue a Permit (Permit) to allow subject Plan species to be incidentally taken within the

Permit Area as depicted and described in Figure [x] of the HCP. The HCP proposes a mitigation

program for the subject Plan Species and their habitats.

4.0 INCORPORATION OF HCP

The HCP and each of its provisions are intended to be, and by this reference are, incorporated herein. 

In the event of any direct contradiction between the terms of this Agreement and the HCP, the terms

of this Agreement shall control. In all other cases, the terms of this Agreement and the terms of the

HCP shall be interpreted to be supplementary to each other.
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5.0 LEGAL REQUIREMENTS

In order to fulfill the requirements that will allow the Service[s] to issue the Permit, the HCP sets

forth measures that are intended to ensure that any take occurring within the Permit Area will be

incidental; that the impacts of the take will, to the maximum extent practicable, be minimized and

mitigated; that procedures to deal with unforeseen circumstances will be provided; that adequate

funding for the HCP will be provided; and that the take will not appreciably reduce the likelihood of

the survival and recovery of the Plan Species in the wild. It also includes measures that have been

suggested by the Service[s] as being necessary or appropriate for purposes of the HCP.

6.0 COOPERATIVE EFFORT [This may not be applicable to all HCPs.] 

In order that each of the legal requirements as set forth in Paragraph 5.0 hereof are fulfilled, each of

the Parties to this Agreement must perform certain specific tasks as more particularly set forth in the

HCP. The HCP thus describes a cooperative program by Federal and State agencies and private

interests to mitigate the effects of the proposed [project or activity name] on the Plan Species.

7.0 TERMS USED

Terms defined and utilized in the HCP and the ESA shall have the same meaning when utilized in

this Agreement, except as specifically noted.

8.0 PURPOSES

The purposes of this Agreement are:

8.1 To ensure implementation of each of the terms of the HCP;

8.2 To describe remedies and recourse should any Party fail to perform its obligations,

responsibilities, and tasks as set forth in this Agreement; and,

8.3 As stated in paragraph 12.3.a hereof, to provide assurances to the Permittee(s) and other

non-Federal landowner(s) participating in the HCP [if applicable] that as long as the terms

of the HCP and the Permit issued pursuant to the HCP and this Agreement are fully and

faithfully performed, no additional mitigation will be required except as provided for in this

Agreement or required by law.

9.0 TERM

9.1 Stated Term. This Agreement shall become effective on the date that the Service[s] issue(s)

the Permit requested in the HCP and shall remain in full force and effect for a period of [x]

years or until termination of the Permit, whichever occurs sooner.

9.2 [For development HCPs with permanent habitat set-asides]: Notwithstanding the stated term

as herein set forth, the Parties agree and recognize that once the Plan Species have been

incidentally taken and their habitat modified pursuant to the HCP, the take and habitat

modification will be permanent. It is therefore the intention of the Parties that the provisions
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of the HCP and of this Agreement regarding the establishment and maintenance of habitat

for the Plan Species shall likewise, to the extent permitted by law, be permanent and extend

beyond the terms of this Agreement.

10.0 FUNDING

10.1 [Permittee] will provide such funds as may be necessary to carry out its obligations under the

HCP. The Permittee should notify the Services, if the Permittee’s funding resources have

materially changed, including a discussion of the nature of the change, from the information

provided in section [x] of the HCP.

10.2 [For long term Permits] The Permittee shall further ensure that funding is available to meet

its obligations under this Agreement, the Permit and the HCP through an account solely

designated for this purpose. The account may be a trust account, irrevocable letter of credit,

insurance or surety bond. The account, letter of credit, surety or insurance must not be

disapproved by the Service, shall be in the amount of no less that $____, and shall be

maintained for the life of the Permit. Funds from the account, insurance letter, or surety

shall only be used if the Permittee is otherwise unable to meet its obligations under this

Agreement, the Permit, or the HCP.

10.3 [if applicable] Prior to site disturbing activities, the Permittee will acquire and transfer to

SDFG or the Service(s) [if applicable] or a third party approved by SDFG [if applicable]

and the Service[s] offsite habitat compensation lands and associated enhancement and

endowment funds [if applicable] as described in the HCP, or will guarantee performance of

those duties through an irrevocable Letter of Credit, a trust account, insurance, or surety

bond [if applicable] in favor of the Service[s], SDFG, or other third party approved by

SDFG and the Service[s] and secured against [Permittee]. Such Letter of Credit, proof of

trust account, insurance policy, or surety bond shall be delivered to the Service[s] [if

applicable], SDFG or approved third party within [x] days of issuance of the Permit and

prior to site disturbing activities [if applicable].

11.0 RESPONSIBILITIES OF THE PARTIES IN MITIGATION PROGRAM

IMPLEMENTATION AND MONITORING RESPONSIBILITIES OF THE PERMITTEE

11.1 Responsibilities of the Permittee. 

a. The HCP will be properly functioning if the terms of the Agreement have been or

are being fully implemented.

b. The Permittee shall undertake all activities set forth in the HCP in order to meet the

terms of the HCP and comply with the Permit, including adaptive management

procedures described in subparagraph (c) below, if applicable.

c. Describe the adaptive management process agreed to by the parties to ensure the

terms of the HCP are fully implemented, if applicable.

d. [if applicable] The Permittee shall submit an annual [or specify other reporting

period] report describing its activities and an analysis of whether the terms of the
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HCP were met for the reporting period. The report shall provide all reasonably

available data regarding the incidental take, and where requested by the Service(s),

changes to the overall population of Plan Species that occurred in the Permit area

during the reporting period. In the case of a corporate Permittee, the report shall

also include the following certification from a responsible company official who

supervised or directed the preparation of the report: Under penalty of law, I certify

that, to the best of my knowledge, after appropriate inquiries of all relevant persons

involved in the preparation of this report, the information submitted is true,

accurate, and complete. 

11.2 Responsibilities of the Service(s). 

a. The Service[s] shall cooperate and provide, to the extent funding is available,

technical assistance to the Permittee as detailed in Section [x] of the HCP and

[optionally] summarized below. Nothing in this Agreement shall require the

Service(s) to act in a manner contrary to the requirements of the Anti-Deficiency

Act.

b. After issuance of the Permit, the Service[s] shall monitor the implementation

thereof, including each of the terms of this Agreement and the HCP in order to

ensure compliance with the Permit, the HCP and this Agreement. 

11.3 Responsibilities of the SDFG (if applicable). The SDFG shall cooperate and provide, to the

extent that adequate funding is available, technical assistance to the Permittee as detailed in

Section [x] of the HCP and [optionally] summarized below.

12.0 REMEDIES AND ENFORCEMENT

12.1 REMEDIES IN GENERAL

Except as set forth below, each Party shall have all remedies otherwise available to enforce

the terms of this Agreement, the Permit, and the HCP, and to seek remedies for any breach

hereof, subject to the following:

a. NO MONETARY DAMAGES

No Party shall be liable in damages to the any other Party or other person for any

breach of this Agreement, any performance or failure to perform a mandatory or

discretionary obligation imposed by this Agreement or any other cause of action

arising from this Agreement. Notwithstanding the foregoing:

(1) Retain Liability

All Parties shall retain whatever liability they would possess for their

present and future acts or failure to act without existence of this Agreement.

(2) Land Owner Liability
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All Parties shall retain whatever liability they possess as an owner of

interests in land.

(3) Responsibility of the United States

Nothing contained in this Agreement is intended to limit the authority of the

United States government to seek civil or criminal penalties or otherwise

fulfill its enforcement responsibilities under the ESA.

b. INJUNCTIVE AND TEMPORARY RELIEF

The Parties acknowledge that the Plan Species are unique and that their loss as

species would result in irreparable damage to the environment and that therefore

injunctive and temporary relief may be appropriate to ensure compliance with the

terms of this Agreement.

12.2 THE PERMIT

a. SEVERABILITY

[For use in HCPs involving multiple Permittees]: The violation of the Permit by any

Permittee with respect to any one or more particular parcels of land or portions

thereof owned or controlled or within the jurisdiction of any such Permittee shall not

adversely affect or be attributed to, nor shall it result in a loss or diminution of any

right, privilege, or benefit hereunder, of any other Permittee.

b. PERMIT SUSPENSION OR REVOCATION

Except as otherwise provided for under the terms of the Agreement, the Permit shall

be suspended or revoked in conformance with the provisions of 50 CFR 13.27

through 13.29 (1994), as the same exists as of the date hereof.

[NOTE: On September 5, 1995, the FWS published a proposed rule in the Federal

Register amending the general regulations for its permit program (50 CFR Part 13

and Part 17). The FWS is currently drafting additional language to clarify and

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

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

template may be outdated upon publication of a final rule. Users of this template

should check the revised permit procedures when available.]

12.3 LIMITATIONS AND EXTENT OF ENFORCEABILITY

a. NO SURPRISES POLICY

Subject to the availability of appropriated funds as provided in Paragraph 14.6

hereof, and except as otherwise required by law, no further mitigation for the effects

of the proposed [project or activity] upon the Plan Species may be required from a
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Permittee who has otherwise abided by the terms of the HCP, except in the event of

unforeseen circumstances; provided that any such additional mitigation may not

require additional land use restrictions or financial compensation from the Permittee

without his/her written consent. 

b. PRIVATE PROPERTY RIGHTS AND LEGAL AUTHORITIES

UNAFFECTED

Except as otherwise specifically provided herein, nothing in this Agreement

shall be deemed to restrict the rights of the Permittee to the use or development

of those lands, or interests in lands, constituting the Permit Area; provided, that

nothing in this Agreement shall absolve the Permittee from such other

limitations as may apply to such lands, or interests in lands, under other laws of

the United States and the State of [ ].

13.0 AMENDMENTS

Except as otherwise set forth herein, this Agreement may be amended consistent with

the ESA and with the written consent of each of the Parties hereto.

14.0 MISCELLANEOUS PROVISIONS

14.1 NO PARTNERSHIP

Except as otherwise expressly set forth herein, neither this Agreement nor the

HCP shall make or be deemed to make any Party to this Agreement the agent

for or the partner of any other Party.

14.2 SUCCESSORS AND ASSIGNS

This Agreement and each of its covenants and conditions shall be binding on

and shall inure to the benefit of the Parties hereto and their respective

successors and assigns.

[NOTE: On September 5, 1995, the FWS published a proposed rule in the

Federal Register amending the general regulations for its permit program (50

CFR Part 13 and Part 17). The FWS is currently drafting additional language

to clarify and resolve the differences between the Part 13 and 17 and a proposed

rule will be published in the near future. 
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Consequently, some information contained in this template may be outdated

upon publication of a final rule. Users of this template should check the revised

permit procedures when available.]

14.3 NOTICE

Any notice permitted or required by this Agreement shall be delivered

personally to the persons set forth below or shall be deemed given five (5) days

after deposit in the United States mail, certified and postage prepaid, return

receipt requested and addressed as follows or at such other address as any Party

may from time to time specify to the other Parties in writing:

Assistant Regional Director

United States Fish and Wildlife Service

[Street Address]

[City, State, Zip Code]

Assistant Regional Director [if applicable]

National Marine Fisheries Service

[Street Address]

[City, State, Zip Code]

Director [if applicable]

[State] Department of Fish and Game

[Street Address]

[City, State, Zip Code]

[Permittee’s Name or Representative]

[Company or Agency Name]

[Street Address or Post Office Box]

[City, State, Zip Code]

14.4 ENTIRE AGREEMENT

This Agreement, together with the HCP and the Permit, constitutes the entire

Agreement between the Parties. It supersedes any and all other Agreements,

either oral or in writing among the Parties with respect to the subject matter

hereof and contains all of the covenants and Agreements among them with

respect to said matters, and each Party acknowledges that no representation,

inducement, promise or Agreement, oral or otherwise, has been made by any

other Party or anyone acting on behalf of any other Party that is not embodied

herein.

14.5 ELECTED OFFICIALS NOT TO BENEFIT

No member of or delegate to Congress shall be entitled to any share or part of

this Agreement, or to any benefit that may arise from it.
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14.6 AVAILABILITY OF FUNDS

Implementation of this Agreement and the HCP by the Services is subject to the

requirements of the Anti-Deficiency Act and the availability of appropriated

funds. Nothing in this Agreement will be construed by the parties to require the

obligation, appropriation, orexpenditure of any money from the U.S. treasury. 

The parties acknowledge that the Services will not be required under this

Agreement to expend any Federal agency’s appropriated funds unless and until

an authorized official of that agency affirmatively acts to commit to such

expenditures as evidenced in writing. 

14.7 DUPLICATE ORIGINALS

This Agreement may be executed in any number of duplicate originals. A

complete original of this Agreement shall be maintained in the official records

of each of the Parties hereto.

14.8 THIRD PARTY BENEFICIARIES

Without limiting the applicability of the rights granted to the public pursuant to

the provisions of 16 U.S.C. § 1540(g), this Agreement shall not create any right

or interest in the public, or any member thereof, as a third party beneficiary

hereof, nor shall it authorize anyone not a Party to this Agreement to maintain a

suit for personal injuries or property damages pursuant to the provisions of this

Agreement. The duties, obligations, and responsibilities of the Parties to this

Agreement with respect to third parties shall remain as imposed under existing

Federal or State law.

14.9 RELATIONSHIP TO THE ESA AND OTHER AUTHORITIES

The terms of this Agreement shall be governed by and construed in accordance

with the ESA and other applicable laws. In particular, nothing in this

Agreement is intended to limit the authority of the Service to seek penalties or

otherwise fulfill its responsibilities under the ESA. Moreover, nothing in this

Agreement is intended to limit or diminish the legal obligations and

responsibilities of the Service as an agency of the Federal government.

14.10 REFERENCES TO REGULATIONS

Any reference in this Agreement, the HCP, or the Permit to any regulation or

rule of the Service shall be deemed to be a reference to such regulation or rule in

existence at the time an action is taken.

14.11 APPLICABLE LAWS 

All activities undertaken pursuant to this Agreement, the HCP, or the Permit

must be in compliance with all applicable State and Federal laws and

regulations.
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IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Implementing

Agreement to be in effect as of the date last signed below.

BY __________________________________________ Date ________

Regional Director

United States Fish and Wildlife Service

[City, State]

BY __________________________________________ Date ________

Regional Director [if applicable]

National Marine Fisheries Service

[City, State]

BY ___________________________________________ Date _________

Director [if applicable]

[State] Department of Fish and Game

[City, State]

(With reference to Part [x] of this Agreement only [as applicable])

BY ___________________________________________ Date _________

[Name], President [Director, etc.]

[Company, Organization, Agency]
ATTACHMENT 1:

Optional Provisions to be Used When the HCP Includes

Habitat "Compensation Credit" Requirements

Note: The material below is provided to aid Service staffs to develop suitable provisions

when an HCP includes habitat "compensation credit" requirements. However, it should

not be used in an Implementing Agreement without review by the Solicitor’s Office (FWS)

or General Counsel’s Office (NMFS).

11.4 HABITAT COMPENSATION CREDITS

a. As mutually agreed between the Service[s], SDFG [if applicable] and

[Permittee], habitat compensation credits shall be established for a

maximum of [x] acres of the habitat compensation lands acquired by

[Permittee] pursuant to Part 11.1(a) of this Agreement. [Permittee] may

sell habitat compensation credits to other project applicants whose

projects require acquisition of habitat compensation lands, subject to

the following conditions.

(1) A habitat compensation credit is defined as the equivalent of

one acre of any parcel of habitat compensation lands which the

Service[s] and SDFG [if applicable] have designated in writing

to be available for sale to other project applicants. Other

project applicants may purchase such compensation credits in

lieu of acquiring habitat to satisfy habitat compensation

requirements for certain projects as described in Paragraph

11.4(a)(2).

(2) [If applicable] The project of any applicant or other project

proponent to which habitat compensation credits may be sold

by [Permittee] shall be located outside the [acquisition area], as

depicted in Attachment 1 of this Agreement, or any other

reserve area designated by the Service[s] and/or SDFG [if

applicable].

(3) Compensation lands utilized as habitat compensation credits

by [Permittee] shall be acquired and deeded to the Service[s]

[if applicable], SDFG [if applicable] or an approved third

party [if applicable] prior to any compensation credit

transaction, unless otherwise authorized in writing by the

Service[s] and SDFG.

(4) All compensation credit transactions shall be approved in

advance and in writing by the Service[s] and SDFG [if

applicable].

(5) [Permittee] shall retain the right to determine the sales price of

habitat compensation credits. [Permittee] is under no
obligation to sell habitat compensation credits and may choose

to retain these credits indefinitely. [Permittee] shall bear all

costs associated with mitigation credit transactions.

b. [If applicable] [Permittee] may defer payment of habitat enhancement

and endowment fees for the [x] acres of compensation lands designated

as compensation credits until either the time of sale of such credits or

12 months from the date that compensation lands totaling [x] acres are

transferred to the Service[s] [if applicable], SDFG [if applicable] or the

approved third party [if applicable] in accordance with Section 11.1(a)

of this Agreement. At the time of each sale of compensation credits,

either [Permittee] or the purchaser of such credits shall be required to

contribute habitat enhancement and endowment fees in the amount of

[$__] cash for each acre of habitat deeded to the Service[s] [if

applicable], SDFG [if applicable] or the approved third party. If

[Permittee] does not sell all or a portion of the designated habitat

compensation credits within 12 months of the transfer of habitat

compensation lands totaling [x] acres to the Service[s] [if applicable],

SDFG [if applicable] or the approved third party, [Permittee] shall

immediately pay in cash to the Service[s] [if applicable], SDFG [if

applicable] or the approved third party all remaining habitat

enhancement and endowment fees allocated to the unsold credits.

c. Upon documentary evidence of sale of habitat compensation credits and

deposit of cash fees for habitat enhancement and endowment,

[Permittee] may request that the Service[s] [if applicable] and/or SDFG

[if applicable], as the beneficiary of the Letter of Credit, join with

[Permittee] to request from the issuer an equitable reduction of the

Principal Sum of the Letter of Credit. However, the Principal Sum of

the Letter of Credit shall not be reduced below an amount determined

by the Service[s] [if applicable] and/or SDFG [if applicable] to be

reasonably necessary to cure any potential future default by [Permittee].