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CHAPTER 4

TREATMENT OF UNLISTED SPECIES

Treatment of unlisted species is a crucial issue for HCPs and the section 10 process. One of

the most common questions asked by permit applicants is, "What happens if a new species is

listed after my section 10 permit has been issued?" Congress considered this issue during the

1982 ESA amendments and clearly intended that the section 10 process would provide for

conservation of unlisted and listed species, and protect section 10 permittees from the

uncertainties of future species listings:

"Although the conservation plan is keyed to the permit provisions 

of the Act, which only apply to listed species, the Committee intends 

that conservation plans may address both listed and unlisted species...In 

the event that an unlisted species addressed in the approved conservation 

plan subsequently is listed pursuant to the Act, no further mitigation 

requirements should be imposed if the conservation plan addressed the 

conservation of the species and its habitat as if the species were listed 

pursuant to the Act." (H.R. Report No. 97-835, 97th Congress, Second 

Session, and 50 FR 39681-39691.) 

A. Addressing Unlisted Species in the HCP 

While HCPs are developed for listed species, they can also cover proposed, candidate or

other rare or declining unlisted species. The inclusion of proposed, candidate, or unlisted

species in an HCP is voluntary and is the decision of the applicant. The Services should

explain to any HCP applicant the benefits of addressing unlisted species in the HCP and the

risks of not doing so, and should strongly encourage the applicant to include as many

proposed and candidate species as can be adequately addressed and covered by the permit. 

The primary reasons for addressing unlisted species with the listed species are: (1) to provide

more planning certainty to the permittee in the face of future species listings; and (2) to

increase the biological value of HCPs through comprehensive multi-species or ecosystem

planning that provides early, proactive consideration of the needs of unlisted species. When

including species other than listed species the applicant must ensure that these species are

adequately covered in the HCP. (See the discussion of what it means for a species to be

"adequately covered" under an HCP in the "No Surprises" policy section of this handbook

and section A.3 of this Chapter). 

If an unlisted species that was not addressed in an HCP becomes listed after the permit for

that HCP has been issued, and if project activities are likely to result in take of the species,

the permittee remains subject to the take prohibitions under section 9 or 4(d) of the ESA for

the new species regardless of the fact that a permit is held for other listed species. In such a

case, the permittee must either avoid take of the species or revise the existing HCP and
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associated documents and obtain a permit amendment to take the newly listed species. This

can result in unwanted complications and delays.

However, if the newly-listed species had been adequately addressed in the original HCP--

even though it was unlisted--the permittee's situation would be different. Depending on how

the unlisted species was treated in the HCP and the permit, the permittee may need to amend

the permit only (not the HCP), or may need to take no additional action whatever to be in

compliance with the ESA for the new species. Addressing unlisted species in an HCP

provides the permittee with regulatory certainty in the event of future species listings,

simplifies (or eliminates the need for) the permit amendment process, and provides the

unlisted species with conservation benefits before they could be legally required under the

ESA.

There are also significant biological advantages. At their best, HCPs can be comprehensive

planning documents that address species conservation needs collectively on a community,

habitat-type, or even ecosystem level. Increasingly, HCP applicants are turning to these

types of planning efforts as an alternative to inefficient, piecemeal approaches to land-use

planning, because they believe that in the long run addressing the interests of wildlife serves

their interests as well (e.g., by protecting ecosystem health, protecting the natural qualities of

their communities, or preventing species declines in the first place), and to increase

regulatory certainty and minimize future Federal requirements.

The Services must also explain to the applicant that the primary jurisdiction over unlisted

species usually rests with the affected state fish and wildlife agency, and that it is advisable to

have the appropriate state agency’s participation in the HCP process. This increases the

likelihood that the HCP will adequately address both State and Federal mitigation

requirements for the affected species in one unified set of mitigation measures, thus

providing further regulatory certainty to the applicant. 

1. Deciding How to Address Unlisted Species.

Procedurally, there are two possible ways to handle unlisted species: (1) do not address them

at all in the HCP; and (2) address them in the HCP and name them on the permit.

With respect to unlisted species that are adequately addressed in the HCP, most applicants

prefer to have such species named on the original permit albeit with a delayed effective date

tied to the date of any future listing. Others prefer to leave such species off the permit and to

amend the permit later if necessary. Either way is acceptable, although, an applicant is well

advised to include on the permit unlisted species that are proposed or likely to be listed

within the foreseeable future. If the applicant strongly opposes the inclusion of unlisted

species covered under the HCP on the permit, then exceptions can be made, but are not

recommended. Most applicants would be expected to prefer that all covered unlisted species

be included on the permit. 
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To some extent, the decision whether or not to address unlisted species will be influenced by

the likelihood of whether a particular species will be listed in the foreseeable future or

otherwise within the life of the permit. Generally, the permit applicant is well advised to

address those species most likely to be listed--e.g., species that are proposed for listing,

candidate species, and other species for which conservation concerns exist. The decision

may also depend on the applicant's objectives in the HCP. If the object is a comprehensive

ecosystem-based HCP, the applicant may elect to address unlisted species even if they are

not likely candidates for listing. In any case, if the applicant elects not to address unlisted

species in the HCP and such species are subsequently listed and could be incidentally taken

within the planning area, the permittee may have to substantially amend and supplement the

HCP to cover that species to remain in compliance with the requirements of the ESA.

2. Addressing Unlisted Species in the HCP and Permit.

If the permittee has elected to address unlisted species in the HCP and to have them included

on the permit with a delayed effective date (the date of future listing), and such species are

subsequently listed, the permittee will be in full ESA compliance for those species and no

further action by the permittee is required.

In such cases, the name of the unlisted species should appear directly on the permit, even

though, technically, they are not protected against take and no Federal permit is needed to

incidentally take them at that time. The permit terms and conditions must make clear that

the permit does not become effective with respect to unlisted species named on it until they

are listed. The following language is suggested:

The permittees, and their designated agents, are authorized to incidentally take (kill,

injure, harm, harass) the [provide species common and scientific names], which are

listed or may be listed in the future under the Federal Endangered Species Act of 1973,

as amended (Act), to the extent that take of these species would otherwise be

prohibited under section 9 of the Act, and its implementing regulations, or pursuant to

a rule promulgated under section 4(d) of the Act. Such take must be incidental to

[name the type of activity] as described in the permit application and associated

documents and as conditioned herein. This permit is immediately effective for species

currently listed under the Act. This permit shall become effective for currently unlisted

species named above upon any future listing of these species under the Act.

Compliance with the entire HCP and associated documents is a condition of the permit. 

Furthermore, if measures described in an HCP for the conservation of unlisted species are

not implemented, and the species is subsequently listed, the permittee would be found to be

out of compliance with the permit with respect to that species and the incidental take of the

species would therefore not be authorized. Consequently, it is in the permittee's best

interests to implement conservation measures described in an HCP for unlisted species. 
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3. Standards for "Covering" Species Under a Permit.

Under the "No Surprises" policy (see Chapter 3, Section B.5(a)) an unlisted species is said to

be "adequately covered" by an HCP and subject to the assurances of "No Surprises" when

the species is addressed in the HCP "as if it was listed pursuant to section 4 of the ESA, and

in which HCP measures for that species would satisfy permit issuance criteria under section

10(a)(1)(B) of the ESA if the species was listed." For purposes of this chapter the term

"adequately covered" shall have the same meaning as it does under the "No Surprises"

policy. Unlisted species must be "adequately covered" under the original HCP before FWS

or NMFS will name (i.e., "cover") such species on a permit or provide assurances that, upon

the request of the permittee, a permit will be amended to include such a species upon the

listing of such species and compliance with section 7.

B. Challenges in Treating Unlisted Species 

Development of HCPs that treat unlisted species as though they were listed constitutes good

conservation planning, but it is not without its challenges. One problem in treating unlisted

species is similar to the problem of determining the HCP plan area as discussed in Chapter 3,

Section B.2(a)--i.e., balancing the need for a comprehensive plan with one that is manageable

in size and scope. Here too there are no simple formulae and inclusion of candidate species

may be a compromise between these two goals.

Another problem is that biological information on candidate and other unlisted species can be

more limited, making it more difficult to determine project impacts, develop suitable

mitigation programs, and meet the section 10 issuance criteria. There are several ways this

situation can be addressed. The applicant may elect to acquire additional biological

information prior to the issuance of the permit. The permittee could also agree to adaptive

management provisions designed to adjust management prescriptions or land use practices to

reflect enhanced information on an unlisted species. Or, HCP planners can elect to address

the species to the extent that information is available, but agree to reduced coverage for that

species under the permit in the absence of further study data. Remember that for legal

coverage under the permit to apply for unlisted species, the species must be "adequately

addressed" in the HCP--i.e., treated as if it was listed and was otherwise able to satisfy the

section 10 criteria. 
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CHAPTER 5

ENVIRONMENTAL ANALYSIS AND DOCUMENTATION

The National Policy Act of 1969 as amended (NEPA), is this country’s basic charter for the

protection of the environment. It established policies, goals, and a mechanism for reaching

these goals. The Council on Environmental Quality (CEQ) regulations implementing the

procedural provisions of NEPA (at 40 CFR §§ 1500-1508) require all agencies to analyze

the impacts of their proposed actions and to include other agencies and the public in the

process.

A. General Information

The goals and mechanisms of NEPA and the ESA, as they relate to incidental take permits

and HCPs are similar and functionally compatible in many respects. It is important to

recognize the similarities and differences in the requirements and to integrate those

requirements in a manner that provides useful information to the decisionmaker and to the

public. While some NEPA compliance for proposed HCPs has been well integrated with the

HCP process and the HCP documentation, in other cases, NEPA compliance has been

treated as a process requiring separate public meetings and separate documentation that in

large part is duplicative of work already done. Such practices are neither useful or efficient. 

The FWS’s amended procedures implementing NEPA and this handbook provide important

new direction on implementing the requirements of these two environmental statutes.

1. Scope of the NEPA Analysis. 

When thinking about the NEPA analysis as it relates to an incidental take permit and an

HCP, it is important to be precise about the nature of the underlying action. The purpose of

an HCP process is to provide an incidental take permit to the applicant that authorizes the

take of federally listed species in the context of a conservation plan. The HCP will specify

the impacts that will likely result from the taking, what steps the applicant will take to

minimize and mitigate such impacts, what alternative actions are not being utilized and such

other measures as may be required by the Services. 

The scope of the NEPA analysis therefore covers the direct, indirect, and cumulative effects

of the proposed incidental take and the mitigation and minimization measures proposed from

implementation of the HCP. The specific scope of the NEPA analysis will vary depending on

the nature of the scope of activities described in the HCP. In some cases, the anticipated

environmental effects in the NEPA analysis that address the HCP may be confined to effects

on endangered species and other wildlife and plants, simply because there are no other

important effects. In other cases, the NEPA analysis will focus on the effects of the

minimization and mitigation actions on other wildlife and plants and will examine any

alternatives or conservation strategies that might not otherwise have been considered. In
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other cases, the minimization and mitigation activities proposed in the HCP may affect a

wider range of impacts analyzed under NEPA, such as cultural resources or water use. It is

important to keep in mind, however, that the NEPA analysis for an HCP should be directed

towards analyzing direct, indirect, and cumulative impacts that would be caused by the

approval of the HCP, that are reasonably foreseeable, and that are potentially significant. 

2. Categorical Exclusions.

CEQ regulations (40 CFR 1508.4) define categorical exclusions as "...a category of actions

which do not individually or cumulatively have a significant effect on the human environment

and which have been found to have no such effect in procedures adopted by a Federal agency

in implementation of these regulations (§ 1507.3) and for which, therefore, neither an

environmental assessment nor an environmental impact statement is required."

U.S. Fish and Wildlife Service procedures for implementing categorical exclusions are found

in the Department of Interior Manual (516 DM 6, Appendix 1; and 516 DM 2, Appendix 1

& 2). The Departmental manual categorically excludes the issuance of permits involving

fish, wildlife, or plants, when such permits cause no or negligible environmental disturbance. 

National Marine Fisheries Service procedures for implementing categorical exclusions are

found in the NOAA Administrative Order Series 216-6, Sections 602b.3 and 602c.3. That

order categorically excludes permits for scientific research and public display under the ESA

and Marine Mammal Protection Act, and other categories of actions which would not have

significant environmental impacts including routine operations, routine maintenance, actions

with short-term effects, or actions of limited size or magnitude. However, a memo for the

record should be made listing the categorical exclusion.

Low-effect HCPs are defined as those involving: (1) minor or negligible effects on federally

listed and candidate species and their habitats; and (2) minor or negligible effects on other

environmental values or resources. "Low-effect" incidental take permits are those permits

that, individually or cumulatively, have a minor or negligible effect on the species covered in

the HCP. Low-effect HCPs may also apply to habitat-based HCPs if the permitted activities

have minor or negligible effects to the species associated with the habitat-types covered in

the HCP. 

Another consideration in meeting the requirements of this categorical exclusion is cumulative

impacts. CEQ regulations define a cumulative impact as "the impact on the environment

which results from the incremental impact of the action when added to other past, present,

and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal)

or person undertakes such other actions" (50 CFR 1508.7). Once the draft NEPA

procedures (516 DM 6, Appendix 1) are revised, section 10 permits developed with technical

assistance from the FWS may be categorically excluded from NEPA, subject to meeting

specific criteria. The current NEPA procedures in 516 DM 6, Appendix 1 shall remain in

effect, until the final revised procedures are published in the Federal Register. When
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categorically excluding a section 10 permit application, the Services must ensure that the

impacts of the project, considered together with the impacts of other permitted projects, will

not be "significant." For example, if numerous low-effect projects in a given species' habitat

are categorically excluded, the Services must ensure that issuance of section 10 permits for

these projects does not result, over time, in cumulative habitat losses to the extent that such

losses become significant. 

3. Environmental Assessments.

The FWS has also determined in the proposed revised NEPA procedures that most HCPs,

other than those that are low-effect, will normally require preparation of analysis that meets

the requirements for an EA [516 DM 6, Appendix 1]. The purpose of an EA is to briefly

analyze the impacts of a proposed action to determine the significance of the impacts and to

determine whether an EIS is needed, to analyze alternatives for proposals which involve

unresolved conflicts concerning uses of available resources, and to aid an agency’s

compliance with achieving NEPA’s purposes when preparation of an EIS is not necessary. 

An EA consists of a brief discussion or description of: (1) the purpose and need for the

proposed action; (2) the nature of the proposed action; (3) alternatives to the proposed

action that were considered; (4) the environmental impacts of the proposed action and its

alternatives; and (5) a list of agencies and persons consulted in the NEPA review process. 

Public review procedures for EAs vary depending on the scope of the proposed action [see

this chapter, Section A.3 and A.5]. The culmination of the EA process is a Finding of No

Significant Impact (FONSI) or a decision to prepare an EIS. 

a. Use of EAs When Mitigation Reduces Significant Impacts. 

Normally, the Service believes that analysis at the level of an EA will be sufficient for HCPs. 

At times, an HCP that might otherwise require an EIS can be analyzed with an EA, if

mitigation measures that would ensure that environmental impacts do not reach the

significant level are part of the original project proposal (in this case, part of the HCP) and

are enforceable. This type of EA can be used when an HCP would otherwise be expected to

have significant environmental impacts but, with mitigation, those impacts can be reduced to

less than significant levels. The basis for this type of EA is found at 40 CFR 1501.3(b),

1501.4(e)(2), and 1508.9(a)(2). A brief discussion of the subject also occurs in the CEQ

publication, "Forty Most Asked Questions Concerning CEQ's National Environmental Policy

Act Regulations" (46 FR 18026-18038, Nos. 39 and 40).

Under the right conditions, EAs of this type are a useful tool for complying with NEPA and

saving paperwork and time. In fact, HCPs are excellent candidates for this type of EA since

most of the requirements ("up front" mitigation and enforceability) are already standard HCP

components. The main differences between this type of EA and other EAs prepared for

HCPs are that: (1) the impact of the project would result in significant environmental impacts
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but for the mitigation program (in many EAs, the environmental effects would be less than

significant even without the mitigation program); and (2) a 30-day public comment period

must be observed before the decision is made not to prepare an EIS (CEQ regulations

otherwise require no delay in deciding not to prepare an EIS). This 30 day period should be

combined with the 30 day public notice of the proposed section 10 permit. 

If the Services decide to use this provision to issue an EA and a FONSI for a particular

proposed HCP, they should be able to make a clear finding that the HCP, considered

together with mitigation measures that are part of the HCP submitted with the permit

application and would be enforceable, will not result in significant environmental effects. 

FWS and NMFS encourage preparation of this type of EA as a way of streamlining the

section 10 and NEPA processes. However, FWS and NMFS staff should consult the

Regional Director's Office, Environmental Coordinators in the Regional Office, or the

Washington, D.C. Office before initiating this type of EA for the first time. 

b. Programmatic EAs.

A programmatic EA is an EA that addresses a group of actions by different applicants as a

whole, rather than one at a time in separate EAs. For example, a programmatic EA might

address a group of different actions occurring in the same place, or a single action occurring

in many different places. Programmatic EAs can save great amounts of staff and preparation

time, but are appropriate only in certain types of situations.

The central problem in preparing a programmatic EA is having sufficient information to

determine and evaluate effects when the exact number and scope of actions taking place may

be uncertain. As a result, programmatic EAs typically will be successful only when the

activities being addressed in proposed HCPs are relatively well-defined and not overly

conjectural, are similar in nature or geography, and occur at similar points in time or within a

predictable time line. Programmatic EAs can be prepared at the time a group of actions is

proposed. To expedite small-scale actions, they can also be prepared prior to specific project

proposals if the proposals can be defined in advance and are reasonably foreseeable.

Because of the problem of analyzing effects, FWS and NMFS staffs should consult their

Regional Office Environmental Coordinator or other NEPA experts when preparing a

programmatic EA.

4. Environmental Impact Statements.

If the conclusion is reached that a particular HCP will have a significant environmental

impact and thus requires preparation of an EIS, refer to the procedures outlined in the

FWS’s NEPA guidance (30 AM 2-3 and 550 FW 3), and Director's Order No. 11, dated

April 18, 1985 or for NMFS the NEPA procedures are found in the NOAA Administrative
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Order Series 216-6, dated June 21, 1991. For further assistance, consult the appropriate

Regional Office or NMFS, Washington Office D.C. Environmental Coordinator.

B. Techniques for Streamlining Section 10 and NEPA Planning

CEQ regulations encourage agencies to focus on the purpose of the NEPA process; making

better decisions. Amassing needless detail is discouraged; integration of the analysis with the

other planning and environmental review requirements so that all procedures run

concurrently rather than consecutively is explicitly encouraged. The Services fully endorse

these goals. All FWS and NMFS offices are expected to streamline their section 10 permit

and NEPA analyses to the maximum extent practicable, while ensuring compliance with both

ESA and NEPA. The process should be streamlined by integrating the analyses in the same

document, to the extent possible, by running the processes concurrently, not consecutively,

and by conducting joint processes with state and local agencies as applicable. 

1. Combining HCP/NEPA Analysis.

The CEQ regulations specifically permit NEPA documents to be combined with other

agency documents to reduce duplication and paperwork (40 CFR§§1506.4). The Services

policy is to combine the HCP and NEPA analysis into a single document titled, “Proposed

HCP and Environmental Assessment for the [insert name of the HCP document].” 

This technique should not be viewed as preparation of two separate documents that are then

published under the same cover, but rather one integrated analysis that meets the

requirements of both NEPA and ESA. For example, the alternatives section of the combined

document should include alternatives that satisfy both the requirements of section 10 and

NEPA. Similarly, the discussion of effects should include analysis of both the impacts of the

proposed HCP as well as other environmental effects that should be analyzed under NEPA.

FWS and NMFS should work closely with the applicant(s) so that any environmental

documents they draft meet NEPA and section 10 permit application requirements. Appendix

8 contains a example of an integrated HCP/EA. This is one way of integrating the two

documents. Another way of integrating the analysis even more would be to include the full

text of the proposed HCP in the alternative section as the preferred alternative.

2. Joint Federal-State Processes.

Some states have enacted laws that parallel or expand NEPA requirements at the state or

local level (e.g., the California Environmental Quality Act). CEQ regulations (40 CFR

1506.2) and Department of Interior procedures (516 DM 4.18) and NOAA require its
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agencies to cooperate, to the fullest extent possible, with the applicant and state and local

officials to reduce duplication between NEPA, state and local environmental requirements,

and ESA requirements.

FWS and NMFS should cooperate with state and local agencies to avoid duplication and

reduce the time and costs of planning by:

o Conducting joint planning;

o Conducting joint environmental research and studies;

o Conducting joint public hearings; and

o Producing joint environmental documents (however, FWS or NMFS is

responsible for submitting Federal Register notices).

3. Incorporation By Reference.

Incorporation by reference can be used in an EA or EIS to avoid including bulky documents

or written material in support of conclusions. Material incorporated by reference from

another source into the NEPA analysis must be cited and its contents briefly described. It

should not be incorporated by reference unless it is reasonably available for inspection by

interested parties within the time allowed for public comment.

C. Internal Service Guidance and Assistance

FWS procedures for complying with NEPA are found in 30 AM 2-3, and 550 FW3. The

Regional Environmental Coordinator should be familiar with these techniques and be able to

assist Regional and Field Office personnel on NEPA matters. NMFS procedures are found

in the NOAA Administrative Order Series 216-6, dated June 21, 1991.