[Federal Register Volume 65, Number 106 (Thursday, June 1, 2000)]
[Notices]
[Pages 35242-35257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13553]



[[Page 35241]]

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Part IV





Department of the Interior





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Fish and Wildlife Service



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Department of Commerce





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National Oceanic and Atmospheric Administration



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Availability of a Final Addendum to the Handbook for Habitat 
Conservation Planning and Incidental Take Permitting Process; Notice

Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / 
Notices

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 981208299-0049-02]
RIN:1018-AG06, 0648-XA14


Notice of Availability of a Final Addendum to the Handbook for 
Habitat Conservation Planning and Incidental Take Permitting Process

AGENCIES: Fish and Wildlife Service, Interior, and National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Commerce.

ACTION: Notice of final policy.

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SUMMARY: The Fish and Wildlife Service and the National Marine 
Fisheries Service (the Services) are publishing a final addendum to the 
Handbook for Habitat Conservation Planning and Incidental Take 
Permitting Process (HCP Handbook). This addendum, which is also known 
as the five-point policy guidance, is printed entirely within this 
notice. Like the HCP Handbook, the addendum provides clarifying 
guidance for the Services in conducting the incidental take permit 
program and for those applying for an incidental take permit under 
section 10(a)(1)(B) of the Endangered Species Act (ESA). This guidance 
will promote efficiency and nationwide consistency within and between 
the Services and improve the Habitat Conservation Planning program.

DATES: This policy is effective July 3, 2000.

ADDRESSES: Chief, Division of Endangered Species, U.S. Fish and 
Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, 
Virginia 22203 (facsimile 703/358-1735); or Chief, Endangered Species 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, Maryland 20910 
(facsimile 301/713-0376).

FOR FURTHER INFORMATION CONTACT: Nancy Gloman, Chief, Division of 
Endangered Species, U.S. Fish and Wildlife Service (telephone 703/358-
2171, facsimile 703/358-1735), or Wanda Cain, Chief, Endangered Species 
Division, National Marine Fisheries Service (telephone 301/713-1401, 
facsimile 301/713-0376) at the above addresses.

SUPPLEMENTARY INFORMATION:

Background

    The Endangered Species Act (ESA) was amended in 1982 to allow the 
Secretaries to authorize the taking of listed species incidentally to 
an otherwise lawful activity by non-Federal entities such as states, 
counties, local governments, and private landowners (section 
10(a)(1)(B)). To receive a permit, the applicant submits a conservation 
plan (also referred to as an HCP) that meets the criteria included in 
the ESA and its implementing regulations (50 CFR parts 17 and 222).
    The section 10 incidental take permitting process (or HCP process) 
provides additional flexibility for landowners by including planning 
for unlisted species, which enables the process to embrace an ecosystem 
and landscape-level approach. This proactive approach can reduce future 
conflicts and may even preclude listing of species, furthering the 
purposes of the ESA. As the Services have made many refinements to the 
process, we have also experienced tremendous growth in the demand for 
Habitat Conservation Plans (HCPs) in recent years. In 1992, 14 HCPs had 
been approved. As of today, we have more than 260 HCP permits covering 
more than twenty million acres of land, providing conservation for 
approximately 200 listed species. More than 200 HCPs are under some 
stage of development. The HCP process provides an opportunity to 
develop strong partnerships with local governments and the private 
sector.
    Based on the Services' experience in developing HCPs and lessons 
learned since 1983, the Services developed comprehensive guidance on 
conducting the incidental take permit program. This guidance was 
developed into the HCP Handbook, which was made available for public 
review and comment on December 21, 1994 (59 FR 65782). It was issued in 
final form on December 2, 1996 (61 FR 63854).
    With the 1982 amendments, Congress envisioned and allowed the 
Federal government to provide regulatory assurances to non-Federal 
property owners through the section 10 incidental take permit process. 
We decided that a clearer policy associated with the permit regulations 
in 50 CFR 17.22, 17.32, and 222.307 regarding the assurances provided 
to landowners entering into an HCP was needed. This prompted us to 
develop the ``No Surprises'' policy, which was based on the 1982 
Congressional Report language and a decade of working with private 
landowners during the development and implementation of HCPs. The 
Services believed that non-Federal property owners should be provided 
economic and regulatory certainty regarding the overall cost of species 
conservation and mitigation, provided that the affected species were 
adequately covered, and the permittee was properly implementing the HCP 
and complying with the terms and conditions of the HCP, permit, and 
Implementing Agreement (IA), if used. The Services codified the ``No 
Surprises'' policy into a final rule, 50 CFR 17.22(b)(5), 17.32(b)(5) 
and 222.307(g), on February 23, 1998 (63 FR 8859). It was at this time 
that the Services announced our intent to revise the HCP Handbook, both 
to reflect the final No Surprises rule and to further enhance the 
effectiveness of the HCP process in general through expanded use of 
five concepts, including permit duration, public participation, 
adaptive management, monitoring provisions, and biological goals.
    On March 9, 1999, the Services published the draft five-point 
policy (64 FR 11485) for public review and comment. This notice 
establishes the five-point policy as a final addendum to the HCP 
Handbook. The addendum supplements the HCP Handbook and No Surprises 
final rule and will be applied within the context of the existing 
statute and regulations. This final addendum is considered agency 
policy, and the Services are fully committed to its implementation. The 
concepts and definitions of terms used in the addendum are found in the 
ESA, implementing regulations, and HCP Handbook. Further information 
about HCPs may be obtained from the FWS webpage at http://www.fws.gov/r9endspp/hcp/hcp.html.

Summary of Comments Received

    The Services received more than 200 letters of comment on the draft 
addendum from individuals, conservation groups, trade associations, 
local governments, Federal and State agencies, businesses and 
corporations, and private organizations. Because most of these letters 
included similar comments (many were form letters) we grouped the 
comments according to issues. We further divided these issues into two 
sets. The issues in the first set deal with the policy as a whole and 
HCPs in general. The issues in the second set pertain to the individual 
sections of the policy and are organized accordingly. The following is 
a summary of the relevant comments and the Services' responses.

[[Page 35243]]

General Five-Point Policy or HCP Issues

    Issue 1: Many commenters were concerned that the policy would not 
be complied with unless it was regulatory in nature and, therefore, 
suggested codifying the policy into regulation rather than issuing the 
addendum as policy.
    Response 1: We believe that publishing the addendum as policy at 
this time is appropriate, because, like the HCP Handbook itself, the 
addendum provides specific guidance for implementation of the statute 
and regulations. The intent of the addendum is to clarify the concepts 
identified in existing policy and regulations and ensure consistency in 
their use. The Services will follow the guidance in the HCP Handbook 
including this addendum.
    Issue 2: Many commenters stated that HCPs should incorporate 
recovery goals. The comments were primarily referring to the biological 
goals of the HCP, but also requested the incorporation of recovery 
goals into adaptive management and monitoring. Other comments included 
the suggestion of minimum scientific standards for the five points 
addressed in the addendum or for HCPs in general. Conversely, one 
commenter stated that biological goals and objectives should simply be 
that the HCP ``not appreciably reduce the likelihood of survival and 
recovery,'' which is one of the statutory criteria for permit issuance. 
Other suggested methods of incorporating recovery into HCPs include 
developing an overall strategy of recovery that includes HCPs, or tying 
adaptive management back into the recovery goals of a species.
    Response 2: The HCP program standards are contained within the 
statutory and regulatory criteria. Two of the statutory criteria for 
obtaining an incidental take permit are that the proposed activity, 
along with the HCP, does not appreciably reduce the likelihood of 
survival and recovery of the species, and that the HCP minimizes and 
mitigates the impact of the taking to the maximum extent practicable. 
The Services believe that guidance is necessary for identifying 
biological goals and objectives that translate these statutory and 
regulatory criteria or standards into meaningful biological measures, 
specific to a particular HCP situation and in a manner that will 
facilitate monitoring.
    The Services also agree that the biological goals and objectives 
should be consistent with recovery but in a manner that is commensurate 
with the scope of the HCP. Under section 10 of the ESA, we do not 
explicitly require an HCP to recover listed species or contribute to 
the recovery objectives outlined in a recovery plan, but do not intend 
to permit activities that preclude recovery. This approach reflects the 
intent of the section 10(a)(1)(B) incidental take permit process to 
provide for authorization of incidental take, not to mandate recovery. 
However, the extent to which an HCP may contribute to recovery is an 
important consideration in any HCP effort, and applicants should be 
encouraged to develop HCPs that produce a net positive effect on a 
species. The Services can use recovery goals to frame the biological 
goals and objectives. Recovery plans are also used as sources for 
possible minimization and mitigation measures for the HCP.
    If a recovery plan is not available, we must rely upon other 
available sources of biological information to encourage the 
development of HCPs that would aid in a species' recovery. If a 
recovery plan is available, the Services and applicants should refer to 
it for information on uncertainty associated with the species' biology 
and/or its conservation in order to determine if an adaptive management 
strategy is necessary.
    By defining what adaptive management means for HCPs in the 
addendum, we established a standard for its use. An adaptive management 
strategy is used to address significant uncertainty associated with a 
particular HCP, but it is not practicable (or possible) to require that 
all adaptive management strategies impose an elaborate experimental 
design. However, an adaptive management strategy must be tied to the 
biological goals and objectives of the HCP and based on the best 
scientific information available. We may also obtain strategies to deal 
with the uncertainty from recovery plans that can be incorporated into 
an HCP's adaptive management program.
    Similarly, a monitoring program's standard for HCPs is based on the 
best scientific information available, but an HCP's monitoring program 
also is scaled to the particular HCP. The Services should be aware of 
the types of monitoring programs that are ongoing in order to 
coordinate efforts between HCPs. It may be more economical for smaller 
HCPs to participate in larger monitoring programs by contributing to or 
incorporating those programs.
    Issue 3: Many comments referred to the No Surprises policy, 
requesting either an increase or decrease in the amount of assurances 
associated with incidental take permits.
    Response 3: The Services published the final rule on the No 
Surprises policy on February 23, 1998 (63 FR 8859). The final rule 
codified into 50 CFR parts 17 and 222 the nature of the assurances 
provided to incidental take permittees. All permits issued after March 
25, 1998, under section 10(a)(1)(B) of the ESA receive No Surprises 
assurances as specified in 50 CFR 17.22(b)(5), 17.32(b)(5), 222.307(g), 
and 222.307(h). This policy addendum does not alter the assurances 
provided to permittees by regulation.
    The No Surprises assurances apply only to incidental take permits 
issued in accordance with the requirements of the Services' regulations 
where the HCP is properly implemented. The assurances extend only to 
those species adequately covered by the HCP. The term ``No Surprises'' 
refers to regulatory assurances, not biological assurances, and applies 
only to the extent of mitigation required by the incidental take permit 
in response to unforeseen circumstances or changed circumstances not 
provided for in the HCP. Specifically, permittees, who are properly 
implementing their HCP, will not be required to provide additional 
conservation and mitigation measures involving the commitment of 
additional land, water or financial compensation or additional 
restrictions on the use of land, water, or other natural resources 
without their consent.
    The No Surprises assurances encourage contingency planning. Changes 
in circumstances that can be reasonably anticipated during the 
implementation of an HCP can be planned for in the HCP. Such HCPs 
should describe the modifications in the project or activity that will 
be implemented if these circumstances occur. Precisely because nature 
is so dynamic, planning for changed circumstances and adopting adaptive 
management strategies within the HCP, permit, or IA, if used, will 
better serve both the needs of permittees and endangered species 
conservation.
    Issue 4: Based largely on a study on HCPs supported by the American 
Institute of Biological Sciences and National Center for Ecological 
Analysis and Synthesis, several commenters raised questions about 
biological uncertainty in decisions to issue incidental take permits. 
Some commenters requested a moratorium on issuing 10(a)(1)(B) 
incidental take permits, stating that there is not enough known about 
the species to lock in long-term conservation actions provided by HCPs 
and the assurances given with these permits. One commenter specifically 
stated that incidental take permits should not be issued if there is 
any uncertainty. Instead, efforts should

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be spent on filling those data gaps before issuing permits.
    Response 4: The Services believe that covered species, both listed 
and unlisted, will be afforded more protection because of the 
conservation measures gained through the HCP process. Permitting 
incidental take that includes carefully constructed conservation 
actions will benefit most covered species. Part of the careful 
construction of an HCP is incorporation of contingency plans, whether 
it is through planning for changed circumstances or developing and 
implementing an adaptive management strategy.
    A moratorium on incidental take permits would not serve species or 
the public well and would not be in accordance with the ESA. Section 
10(a)(2)(B) of the ESA states that an incidental take permit that meets 
the issuance criteria shall be issued. The partnerships this program 
encourages are needed to promote endangered and threatened species 
conservation on non-Federal lands.
    The Services appreciate the suggestions provided in the study 
sponsored by the American Institute of Biological Sciences and the 
National Center for Ecological Analysis and Synthesis. Nevertheless, we 
believe, and the study confirmed, that the HCPs currently in place are 
based on the best available scientific and commercial information. If 
we lack critical information regarding the biological needs of a 
species proposed to be covered under an HCP, we will not issue the 
permit until such information is obtained or an acceptable adaptive 
management strategy is incorporated into the HCP to address the 
uncertainty.
    Issue 5: Some comments stated that the addendum should allow 
citizen suits to ensure that permittees are properly implementing their 
HCPs.
    Response 5: The addendum does not in any way alter the ability of 
citizens to bring lawsuits using the citizen suit provision of the ESA.
    Issue 6: One commenter stated that the addendum should provide for 
compensation for loss of Tribal resources due to implementation of 
HCPs.
    Response 6: The Secretarial Order regarding American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act was issued on June 5, 1997, by the Secretaries of the 
Interior and of Commerce pursuant to the ESA, the Federal-Tribal trust 
relationship, and other Federal law. This Order clarifies the 
responsibilities of the Services when ESA actions affect, or may 
affect, Indian lands, tribal trust resources, or the exercise of 
American Indian tribal rights. The order does not require HCP 
applicants to include the tribes in actual negotiations or require 
compensation for loss of Tribal resources.
    Issue 7: One comment stated that the draft addendum did not adhere 
to the policy on the use of plain English in Government documents.
    Response 7: The final addendum is written to incorporate the 
principles of plain English. However, most of the concepts within this 
addendum and within the HCP Program are biological or otherwise 
technical in nature. Therefore, we must use certain terminology that is 
associated with those concepts.
    Issue 8: One commenter suggested that all five points addressed by 
the addendum should be proportional to the scale of the HCP.
    Response 8: The Services agree that application of each of the 5 
points (i.e., the biological goals and objectives, an adaptive 
management strategy, the monitoring program of an HCP, the 
determination of the duration of an incidental take permit, and the 
scope of public involvement) should be commensurate with the scope of 
the HCP. Each individual section within the addendum discusses the 
relationship between each of the five points and the scope of the HCP.

Biological Goals Issues

    Issue 9: There were comments about who should determine the 
biological goals and objectives of an HCP. One commenter suggested that 
the person(s) with the most experience with the species should 
determine the biological goals and objectives of an HCP. Additional 
comments suggested that we confer with State agencies in determining 
biological goals and objectives. Another commenter stated that the 
Services should provide applicants assistance in developing the 
biological goals and objectives.
    Response 9: In addition to the applicants, the Services play an 
integral role in determining the biological goals and objectives. We 
agree that species experts should be consulted during development of an 
HCP, including determining the biological goals and objectives. We have 
revised the biological goals and objectives section to articulate the 
methods available for their development. Service biologists frequently 
confer informally with species experts or other specialty experts 
(e.g., population modeling, habitat assessment, restoration).
    The Services also agree that State agencies should be involved with 
HCPs, including HCPs that cover non-listed species, and we encourage 
applicants to include the State wildlife agencies during the 
development of their HCPs. The addendum reflects this commitment.
    Issue 10: There were comments about whether species would benefit 
more from habitat-based biological goals versus goals specific to the 
number of individuals or populations. Some suggested that habitat-based 
goals would be sufficient. Others stated that there should only be 
species-based goals and that they should account for all life stages of 
that species and any natural fluctuations in population levels.
    Response 10: As discussed in the draft addendum, an appropriate HCP 
biological goal for a species will depend upon the particular species, 
the nature of the impact, the nature of the conservation measures in 
the HCP, and to what extent the populations or other ecological factors 
fluctuate. The addendum states the following:

    The biological goals and objectives may be either habitat or 
species based. Habitat-based goals are expressed in terms of amount 
and/or quality of habitat to be achieved. Species-based goals are 
expressed in terms specific to individuals or populations of that 
species. Complex multispecies or regional HCPs may use combination 
of habitat- and species-specific goals and objectives. However, 
according to 50 CFR 17.22, 17.32, 222.102, and 222.307, each covered 
species must be addressed as if it were listed and named on the 
permit. Although the goals and objectives may be stated in habitat 
terms, each covered species that falls under that goal or objective 
must be accounted for individually.

The Services chose to broadly define the application of biological 
goals and objectives, not only in terms of whether they should be 
habitat-based or species-based, but also how the goals and objectives 
should be measured (e.g., numbers, life history stages, acres). This 
broad definition allows for flexibility in determining appropriate 
biological goals and objectives. The Services and applicants must 
determine the appropriate unit of measure such as numbers of 
individuals at a particular life stage, all lifestages, or quantity or 
quality of habitat for each individual HCP. The Services and applicants 
should also consult with appropriate experts to determine those goals 
(see above discussion).
    Regardless of the type of goal used, at some point, all HCPs must 
undergo a species by species analysis. If an HCP is planned on a 
habitat basis, a species-by-species analysis must be made to determine 
if the HCP adequately covers the species. The relationship of habitat 
goals to specific species will help the

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Services and applicant determine if a species is adequately covered by 
an HCP. Also, this consideration of individual species provides a 
safety net for those species that may not neatly fit into a purely 
habitat-based plan. For example, populations of a narrow endemic 
species that occur within a wider ranging habitat type may not be 
adequately covered by an HCP that depends solely on amount of habitat 
conserved in a broad general area and does not specify particular 
locations where the habitat for that species is conserved.
    Issue 11: Some commenters addressed quantifying take within an HCP 
and during its implementation. Some stated that quantifying take should 
not be required, and others stated that it should always be required.
    Response 11: Although identifying the amount or extent of take 
within an HCP and the permit does not directly refer to development of 
biological goals and objectives, it is related and will be addressed 
here. Section 10(a)(2)(A) requires that an HCP specify the impact which 
will likely result from the take to be permitted. Both Services require 
applicants to include certain information about the species to be 
covered by an HCP. FWS permit application criteria require 
identification of the number, age, and sex of such species, if known 
(50 CFR 17.22, 17.32). NMFS application criteria require a description 
of the anticipated impact, including amount, extent, and type of 
anticipated taking (50 CFR 222.307). While evaluating an HCP, we use 
the amount of incidental take as a main indicator of the impact the 
proposed project will likely have on the species. Identifying the 
amount of incidental take contributes to the analysis of whether the 
proposed incidental take permit will appreciably reduce the likelihood 
of survival and recovery of the species.
    There are situations where precisely quantifying the number of 
individuals that are anticipated to be taken is a less effective method 
than estimating the amount or extent of take in terms of the amount of 
habitat altered. What is most important is that we are able to assess 
the impact of the anticipated take on the species. Regardless of how 
the incidental take is quantified, it must be indicated in the 
biological opinion the Services complete for the issuance of the permit 
and on the permit itself.

Adaptive Management Issues

    Issue 12: Many commenters raised the issue as to the correct 
definition, and, therefore, correct application of adaptive management. 
Additionally, these commenters stated that under the ``scientific 
definition'' of adaptive management, true adaptive management is 
impossible under No Surprises.
    Response 12: The Services recognize the use of the term within the 
scientific literature. However, the phrase ``adaptive management'' is 
used in many other disciplines and contexts and has different meanings 
to different people. The scientific definition typically follows 
Holling (1978) and Walters (1986) (see also Walters and Holling, 1990; 
McLain and Lee, 1996; Walters 1997). This definition is described as a 
process that tackles the uncertainty in management of natural resources 
through experimentation. Most frequently, this involves modeling to 
determine a course of action for on-the-ground implementation with 
monitoring to test the model's predictions. Walters (1986) breaks down 
categories of learning through implementation as ``active'' and 
``passive'' adaptive management. Passive adaptation is where 
information obtained is used to determine a single best course of 
action. Active adaptation is developing and testing a range of 
alternative strategies (Walters and Holling 1990). For the purposes of 
the HCP program, we are defining adaptive management as a method for 
examining alternative strategies for meeting measurable biological 
goals and objectives, and then, if necessary, adjusting future 
conservation management actions according to what is learned.
    The Services are incorporating a broad perspective of adaptive 
management, with the key components that make an adaptive process in 
HCPs meaningful. These components include careful planning through 
identification of uncertainty, incorporating a range of alternatives, 
implementing a sufficient monitoring program to determine success of 
the alternatives, and a feedback loop from the results of the 
monitoring program that allows for change in the management strategies. 
Because the Services and applicant provide these elements up front in 
the HCP, they are consistent with No Surprises.
    The addendum makes a distinction between adaptive management that 
would have a more experimental approach versus contingency planning for 
the implementation of measures in the event of changed circumstances 
where there is little uncertainty. An HCP can provide provisions for 
changed circumstances that does not involve adaptive management.
    Issue 13: One commenter stated that all HCPs should contain 
adaptive management.
    Response 13: As stated in the addendum, the Services will 
incorporate adaptive management strategies when appropriate. Adaptive 
management is necessary for those plans ``that would otherwise pose a 
significant risk to the species at the time the permit is issued due to 
significant data or information gaps.'' Not all HCPs warrant adaptive 
management, although any HCP may incorporate an adaptive management 
strategy if agreed upon by the applicant and the Services.
    In addition, the ability for applicants and the Services to build 
contingency measures into an HCP's operating conservation strategy does 
not depend solely on the use of adaptive management. For instance, the 
No Surprises final rule provides for planning for changed 
circumstances. This planning involves providing alternative actions for 
possible events that may alter the ability of an HCP to meet its 
biological goals and objectives. An adaptive management strategy would 
not be necessary if there were no significant uncertainty associated 
with identifying appropriate responses to potential changed 
circumstances.
    Issue 14: One commenter stated that adaptive management not only 
increases the complexity of an HCP (and, therefore, the time and effort 
involved in its development and implementation), but the uncertainty 
poses an economic risk to permittees.
    Response 14: We agree that adaptive management may increase the 
complexity of an HCP. However, adaptive management strategies should be 
commensurate with the scope of the HCP (e.g., the smaller the scope or 
impacts, the less complex the HCP and any adaptive management if 
warranted). Additionally, all HCPs must meet statutory and regulatory 
issuance criteria prior to approval and issuance of a permit. Adaptive 
management is one tool available to applicants and the Services that 
can be used to meet the issuance criteria. It is also a means for 
increasing the flexibility of an HCP. A results-oriented implementation 
program lets a permittee apply a number of different methods for 
achieving a certain goal, rather than adhering to an inflexible list of 
prescriptions. A results-oriented program actually provides some 
certainty to the permittee by establishing a framework to modify the 
operating conservation strategy. Results are periodically assessed, 
and, if shortcomings are evident, previously agreed-upon alternative 
strategies are implemented, thereby streamlining

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additional discussions between the Services and permittee.
    Setting the sideboards and structure during development of the HCP 
provides applicants certainty in the extent of requirements for 
implementing an adaptive management strategy. As stated in the No 
Surprises final rule, we will not require a permittee to make 
additional mitigation commitments, including any adaptive management 
provisions, beyond what was agreed to in the HCP, permit, and IA, if 
used.
    Issue 15: One commenter stated that adaptive management should not 
replace good, up-front conservation measures.
    Response 15: The Services agree that adaptive management should not 
be used in place of developing good up-front conservation measures or 
to postpone addressing difficult issues. However, adaptive management 
may be necessary to craft a framework for addressing uncertainty in the 
operating conservation program to ensure that the measures fulfill the 
biological goals and objectives of an HCP.

Monitoring Issues

    Issue 16: Several commenters stated that the Services should 
establish minimum standards or require scientific standards for the 
monitoring program within an HCP.
    Response 16: The implementing regulations for an HCP (50 CFR 17.22, 
17.32, and 222.307) require a monitoring component. The HCP Handbook 
includes guidance on what the monitoring component of an HCP should 
look like. However, we have refined that guidance and have incorporated 
it into the addendum. The Services agree that any methodology and 
techniques involved in biological aspects of monitoring should be based 
on science. The addendum does state that ``The monitoring program will 
be based on sound science. Standard survey or other previously-
established monitoring protocols should be used. Although the specific 
methods used to gather necessary data may differ depending on the 
species and habitat types, monitoring programs should use a 
multispecies approach when appropriate.'' Monitoring approaches that 
are consistent with the Handbook and addendum should be adequate for 
assessing whether the HCP is achieving its biological goals and 
objectives.
    Issue 17: Some commenters stated that it was difficult to 
distinguish between compliance monitoring and effects and effectiveness 
monitoring.
    Response 17: The Services recognize that it may be difficult to 
distinguish between the two types of monitoring particularly when the 
actual monitoring actions may overlap. One way to distinguish between 
the two types is that compliance monitoring verifies that the permittee 
is carrying out the terms of the HCP, permit, and IA (if one is used) 
while effects and effectiveness monitoring evaluates the biological 
effects of the permitted action and determines whether the 
effectiveness of the operating conservation program of the HCP is 
consistent with the assumptions and predictions made when the HCP was 
developed and approved. The permittee is primarily responsible for 
ensuring that their HCP is working as planned and the Services are 
primarily responsible for monitoring whether the permittee is complying 
with permit requirements.
    Issue 18: A few commenters suggested that the Services identify, in 
the addendum, minimum qualifications for personnel conducting 
monitoring.
    Response 18: The addendum does state that the personnel conducting 
the monitoring should be qualified. However, the necessary 
qualifications depend upon what is being monitored. Since HCPs are 
highly variable, the addendum is flexible about the minimum 
qualifications of personnel conducting the monitoring, and the 
Services' staff will determine whether the person or company conducting 
the monitoring is qualified.
    Issue 19: One commenter suggested the Services require all 
monitoring programs to include population counts.
    Response 19: Population monitoring may not be appropriate for all 
HCPs. The scope of any HCP monitoring program should be in proportion 
to the scope of that HCP. If an HCP affects only a portion of a 
population, the permittee should not be responsible for monitoring the 
entire population. In addition, it may or may not be appropriate for a 
particular HCP to include counting of populations or individuals. The 
appropriate unit of measure in a monitoring program depends upon the 
specific impacts and operating conservation program within an HCP and 
the biological goals and objectives of the HCP. The unit of measure 
also depends on how the species uses the habitat to be affected. 
However, the Services should coordinate monitoring programs to obtain a 
larger picture of the status of a population.
    Issue 20: Some commenters suggested that self-reporting should not 
be used as a means to demonstrate that the permittee is in compliance 
with the terms of an HCP.
    Response 20: We are not limited to self-reporting for compliance 
monitoring. However, the limited resources available to the Services to 
conduct monitoring necessitates our reliance on the working 
relationships between us and the permittees to verify compliance. As 
discussed in the addendum, where appropriate, we may conduct our own 
evaluation, including site visits. The Services should be able to use 
the periodic reports made by permittees as one method in determining 
whether the permittee is in compliance. Periodic reports may be our 
first source of information about the implementation of an HCP. From 
these reports, we may catch discrepancies that alert us to possible 
implementation problems. Also, the information obtained to determine 
effects and effectiveness may be the same information needed to 
determine compliance. We do not want to use limited resources on 
duplicative monitoring efforts.

Permit Duration Issues

    Issue 21: One commenter suggested that the Services link the 
duration of the permit to recovery of the species covered by an HCP.
    Response 21: We assume that this comment refers to linking duration 
of the permit to completion of recovery goals where HCPs have a 
``recovery standard.'' We discuss the relationship of the HCP program 
and recovery in the above responses.
    Issue 22: Some commenters stated that we should not place time 
limits on mitigation measures.
    Response 22: This comment seems to reflect a misunderstanding 
regarding the duration of an incidental take permit. Permit duration is 
the length of time during which the permittee has incidental take 
authorization. HCPs may be designed such that mitigation measures are 
in effect for longer periods of time, including in perpetuity, than the 
time the incidental take permit is in effect.

Public Participation Issues

    Issue 23: Many comments pertained to whether the Services or the 
applicant decides who participates in the development of HCPs. Most 
commenters stated that the applicant should not decide who 
participates, and offered alternatives including mandatory stakeholder 
or interested party participation, and leaving the decision up to the 
Services.
    Response 23: The experience of the Services shows that the more 
public participation in the development phase of an HCP, the more 
likely it will be accepted by the public. However, we maintain that the 
inclusion of other

[[Page 35247]]

interested parties in the development of an HCP is ultimately the 
decision of the applicant. The ESA and its implementing regulations do 
not mandate public participation before an applicant submits a permit 
application; only a public comment period after it is submitted and 
published in the Federal Register. We strongly encourage applicants to 
include more public participation at all stages of development.
    Issue 24: Some commenters suggested that scientists should be 
involved in the development of HCPs. Another commenter stated that all 
HCPs should be subject to peer review.
    Response 24: During consideration of whether to issue an incidental 
take permit, the Services are required to use the best available 
scientific and commercial information. Such data come from a variety of 
sources: scientific literature and peer-reviewed publications, in-house 
expertise, other State or Federal agencies, academia, and non-
governmental organizations, to name a few. For listed species, the 
Services can draw upon a number of existing information sources, all of 
which have gone through peer and public review. ESA listing packages 
are used to gain further species-specific biological information, and 
where possible, the Services will draw upon recovery plans to identify 
conservation and monitoring measures and objectives for listed species. 
The addendum encourages applicants to use scientific advisory 
committees during the development and implementation of an HCP, 
especially large-scale ones.
    The applicant's integration of a scientific advisory committee and 
perhaps other stakeholders improves the development and implementation 
of any adaptive management strategy. Advisory committees can assist the 
Services and applicants in identifying key components of uncertainty 
and determine alternative strategies for addressing that uncertainty. 
We also encourage the use of peer-review for an HCP. An applicant, with 
guidance from the Services, may seek independent scientific review of 
specific sections of an HCP and its operating conservation strategy to 
ensure the use of the best scientific information for HCP development.
    Issue 25: One commenter requested that the public comment period 
under the National Environmental Policy Act (NEPA) for HCPs not be 
extended. Another comment suggested that the Services process 
incidental take permits with Environmental Impact Statements within 
nine months, and, if that deadline is not met, we would be required to 
issue the permit within 30 days.
    Response 25: The addendum contains changes to the existing HCP 
public comment period but does not change any public input required by 
the Council on Environmental Quality regulations for implementing the 
procedural provisions of NEPA (40 CFR 1500-1508).
    The intent of the addendum is to ensure the public has sufficient 
opportunity to review and provide comment on all HCPs, regardless of 
the public review requirements of NEPA. To accomplish this, the 
addendum lays out the various public review requirements for HCPs with 
different levels of impact. For example, low-effect HCPs, which are 
categorically excluded from the NEPA process, will have a minimum 30-
day public review and comment period. The public review period for 
large, complex HCPs is 90 days, unless there is significant public 
involvement during development. All other HCPs (including large complex 
HCPs with significant public involvement) will be made available for 
review and comment for a minimum of 60 days.
    The addendum contains target time frames for us to process an 
incidental take permit application. The target processing time frame 
for an HCP that includes an Environmental Impact Statement (EIS) is up 
to one year, including the 90-day comment period (or 60-days if 
significant public participation has occurred). However, we cannot 
issue a permit until we have determined that it meets the issuance 
criteria under section 10(a)(2)(B) of the ESA. Because of the 
complexity associated with an HCP that has an EIS, we need the target 
processing time frame of one year to determine whether to issue the 
permit. One method to reduce the amount of time needed to process a 
permit application is for an applicant to include up-front public 
participation during HCP development.

Required Determinations

Regulatory Planning and Review, Regulatory Flexibility Act, and Small 
Business Regulatory Enforcement Fairness Act

    This final policy was subject to Office of Management and Budget 
(OMB) review under Executive Order 12866.
    a. This policy will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required. The primary purpose of the addendum is to 
incorporate the 5-point policy, which was published in draft form on 
March 9, 1999, into the final Handbook for Habitat Conservation 
Planning and Incidental Take Permitting Process. This HCP Handbook 
addendum provides additional guidance on five concepts that, although 
treated only briefly in the handbook, are in widespread use in existing 
and developing HCPs. The main purpose of this addendum is to provide a 
consistent approach to these concepts for future HCPs. The five 
concepts addressed in this addendum include biological goals and 
objectives, adaptive management, monitoring, permit duration, and 
public participation.
    The HCP program and the associated section 10 permits have been in 
place for approximately 17 years. The 1982 amendments to the ESA 
created a statutory framework for the HCP program that was built 
primarily around four permit application criteria and four permit 
issuance criteria. We promulgated regulations in 1985 in order to 
implement the Congressionally created HCP program. The statutory and 
regulatory framework for HCPs has remained unchanged since it was first 
put into place. The five concepts addressed in this addendum are an 
outgrowth of the statute and regulations. This addendum does not create 
these concepts, nor does it change the current regulations or general 
application of the concepts in practice.
    In order to analyze the economic effect of this addendum, we 
reviewed the potential of this policy to have an effect on HCPs in 
three different areas: the cost of HCP development, the cost of HCP 
minimization and mitigation, and The cost of HCP implementation. Past 
and current experience with the HCP program leads us to predict that we 
will complete and approve approximately 35 new HCPs each year into the 
foreseeable future. We expect that the size and complexity of the 
expected 35 HCPs per year will continue to vary from the extremely 
small, single-species HCP to multi-species HCPs covering more than a 
million-acre planning area (see Table 1). Based on past and current 
experience, we predict that 20 of the expected 35 HCPs per year will be 
relatively small and simple HCPs covering one or a few listed species 
(of which 8 may be deemed ``low effect''). The HCPs of medium size and 
complexity are expected to account for another 12 of the 35 HCPs, and 
the remaining three HCPs are expected to be large, complex HCPs.

[[Page 35248]]



  Table 1.--Size Distribution of HCPs According to Planning Area, as of
                            December 31, 1999
  [Some plans have both short-term and long-term HCPs, where the total
  amount of area addressed in the short-term HCP is included within the
  total area of the subsequent long-term HCP. Therefore, the numbers of
  HCPs accounted for above will not total the number of HCPs that have
  been issued. A few HCPs were not included in this tally because they
     addressed the planning areas in linear miles instead of acres.]
------------------------------------------------------------------------
                                                               Number of
                         Size of HCPs                             HCPs
------------------------------------------------------------------------
Less than 1 acre.............................................         44
Between 1-10 acres...........................................         64
Between 10-100 acres.........................................         56
Between 100-500 acres........................................         37
Between 500-1,000 acres......................................         11
Between 1,000-10,000 acres...................................         17
Between 10,000-100,000 acres.................................         14
Between 100,000-500,000 acres................................         10
Between 500,000-1,000,000 acres..............................          4
Greater than 1,000,000 acres.................................          2
------------------------------------------------------------------------

The Effect of Additional Policy Guidance on Biological Goals and 
Objectives
    This addendum emphasizes the benefit of explicitly articulating why 
the minimization and mitigation efforts in an HCP are being provided 
and what they are expected to accomplish. The thrust of this concept is 
aimed at the HCP preparation phase. We have no reason to believe it 
will have any effect on an HCP's minimization and mitigation or on HCP 
implementation. From the very beginning of the HCP program, biological 
goals and objectives have been incorporated into HCPs, sometimes in an 
explicit manner and in other cases in an implicit manner. For example, 
in the first HCP, which was used by Congress as a model for the 1982 
amendments to the ESA, the HCP states that the ``purpose of the [HCP] 
is to provide for the indefinite perpetuation of the Mission Blue and 
Callippe Silverspot butterflies on San Bruno Mountain, as well as to 
conserve * * * the value * * * as a remnant ecosystem. * * * The more 
pervasive goal is to simultaneously provide for the perpetuation and 
enhancement of the grassland habitat which supports the butterflies. * 
* * The focus of preservation is on the grassland because this is 
thought * * * to be the ancestral native habitat. * * *'' [San Bruno 
Mountain Area Habitat Conservation Plan, Final 1991]. A more recent 
example from an HCP developed in Texas states ``the main goal of the 
HCP is to * * * minimize and mitigate the impacts. * * * This main goal 
is achieved by onsite conservation measures * * * and the acquisition 
and dedication of preserve lands for the warbler adjacent to an 
existing habitat preserve and within the same warbler recovery unit as 
the proposed development.'' [Environmental Assessment and Habitat 
Conservation Plan, Issuance of an Endangered Species Section 10(a) 
Permit for the Incidental Take of the Golden-cheeked Warbler (Dendroica 
chrysoparia) during construction and Operation of the Approximate 24-
acre Single Family Residential Development, Canyon Ridge, Phase A, 
Section 3, Austin, Travis County, Texas, December, 1994].
    The second issuance criterion in section 10 of the ESA requires a 
finding that the applicant ``will, to the maximum extent practicable, 
minimize and mitigate the impacts. * * *'' This criterion inherently 
requires a discussion of the minimization and mitigation efforts and 
their relationship to the project impact and the desired outcome of the 
HCP. We believe that the decision documents examining this criterion 
are of higher quality when biological goals and objectives are made 
explicit. This addendum is directed towards agency personnel and does 
not seek to alter the permit application criteria or otherwise require 
anything new of permit applicants. We already encourage HCP applicants 
to provide an explicit discussion of biological goals and objectives, 
but this addendum will not mandate such a discussion in the HCP. 
Instead, this addendum will ensure that the agency decision documents 
that analyze the HCP contain an explicit discussion of biological goals 
and objectives.
    We do not expect that policy guidance requiring an explicit 
articulation of biological goals and objectives that already exist in 
some form in the HCP will require any significant additional time or 
effort. The incorporation of this addendum into the handbook reflects 
support for existing practice more than it does a new policy 
development. As such, and given the relative ease of explaining the 
goals of conservation measures, we believe that this policy will have 
little to no economic effect on small entities or any other entity. In 
addition, we have determined that providing a numerical or quantitative 
description of this deminimus effect is not practical and we have, 
therefore, provided a narrative analysis instead.
The Effect of Additional Policy Guidance on Adaptive Management
    The HCP Handbook already provides policy guidance on adaptive 
management, and thus this addendum merely provides additional 
refinement. The concept of adaptive management has been both broadly 
and narrowly defined by the disciplines that use the concept. We are 
embracing a somewhat broad definition of the term as supported by the 
scientific literature, and one of the reasons for additional policy 
guidance on this concept is to explain our application of the concept 
of adaptive management compared to the narrower definition favored in 
some academic circles.
    Adaptive management has been widely used in the HCP program from 
the very beginning. The first HCP, San Bruno Mountain, utilized the 
concept, stating: ``notwithstanding the considerable knowledge gained 
through the biological study, the Habitat Conservation Plan, in concept 
and in implementation, is novel and in many ways, experimental. There 
are many biological uncertainties which inescapably remain at the 
outset of such an ambitious undertaking which can only be resolved 
through an ongoing program of applied research designed specifically to 
direct Plan implementation.'' [San Bruno Mountain Area Habitat 
Conservation Plan, Final 1991, emphasis in original]. Since the San 
Bruno plan, many HCPs, especially the larger and more complex HCPs, 
have utilized adaptive management concepts in one form or another. 
Examples include the Washington County HCP in Utah and the Plum Creek 
Timber Company I-90 Corridor HCP in Washington. Arguably some of the 
measures in these HCPs that can be categorized as adaptive management 
were included in an attempt to meet regulatory requirements concerning 
unforeseen and changed circumstances. The section 10 regulations 
require that permit applicants develop procedures to address unforeseen 
circumstances (50 CFR 17.22(b)(1)(iii)(B), 17.32(b)(1)(iii)(B) for FWS 
and 50 CFR 222.307(g) for NMFS) and make the existence of these 
procedures a precondition to permit issuance. See 50 CFR 
17.22(b)(2)(iii) and 17.32(b)(2)(iii) for FWS and 50 CFR 222.307(g) for 
NMFS. The No Surprises rulemaking expanded on the contingency planning 
aspects of the HCP program by requiring contingency planning for 
changed circumstances that are foreseeable [See 63 FR 8859 (February 
23, 1998)]. This addendum on adaptive management does not mandate the 
contingency planning identified above, even if some of the procedures 
adopted fall under the heading of adaptive management.
    The addendum states that adaptive management will be used for HCPs 
that are faced with significant data gaps. We believe that an HCP that 
fails to address

[[Page 35249]]

significant data gaps will not meet the issuance criteria of the ESA. 
It is, therefore, not the addendum itself that mandates the use of 
adaptive management in cases of significant data gaps, but is instead 
the applicant's need to overcome data gaps and still meet the permit 
issuance criteria established in the ESA. Current practice on the 
ground is to rely on adaptive management to overcome data gaps. This 
addendum provides policy support for this existing practice, but does 
not change the status quo. We, therefore, determine that the addendum's 
coverage of adaptive management will not effect small entities to any 
measurable degree.
The Effect of Additional Policy Guidance on HCP Monitoring
    This addendum does not impose any new monitoring requirements. 
Monitoring is already required by the section 10 regulations. In the 
preamble to the final rule promulgating the section 10 regulations, we 
agreed with a commenter that the Service should monitor the 
implementation of a conservation plan and accordingly finalized 
revisions to sections 17.22(b)(1)(iii)(B), 17.22(b)(3), 
17.32(b)(1)(iii)(B) and 17.32(b)(3) to require that conservation plans 
specify the monitoring measures to be used and to authorize imposition 
of necessary monitoring as a condition of each permit.'' 50 FR 39681, 
39684 (September 30, 1985). NMFS also included a monitoring requirement 
in their section 10 regulations (50 CFR 307 (d)).
    This addendum seeks to refine existing monitoring policy by 
organizing the types of monitoring being conducted into categories, 
including compliance monitoring, effect monitoring, and effectiveness 
monitoring. The addendum also seeks greater compatibility of monitoring 
data across HCPs. Neither of these policy additions is expected to have 
any economic impact. Current practice entails the HCP applicant and the 
Services working together to arrive at a monitoring program that, based 
on the specifics of the HCP and the species involved, is robust enough 
to provide the information the parties feel will be needed. This 
addendum does not alter current practice and instead reiterates the 
regulatory requirement and provides policy recognition and support for 
the current practice.
The Effect of Policy Guidance on Permit Duration
    The section 10 regulations provide factors that the Director should 
consider in determining permit duration. The Handbook did not provide 
any treatment of the issue of permit duration. This addendum would add 
a short provision to the Handbook that essentially repeats verbatim the 
regulatory language on permit duration. Even though the addendum does 
not expand on the regulations' treatment of permit duration, we believe 
that the Handbook should provide coverage of all aspects of the program 
and it will thus be beneficial to include this provision in the 
Handbook. The policy guidance on permit duration will not affect the 
current approach to determining permit duration and will, therefore, 
not have any effect.
The Effect of Additional Policy Guidance on Public Participation
    In the area of public participation, this addendum signals a 
departure from the current practice in the Handbook by increasing the 
length of the public comment period for many HCPs by thirty days. The 
ESA requires a minimum of a thirty day public comment period, but does 
not prohibit longer public comment periods. This addendum provides that 
``low effect'' HCPs will, as a general matter, continue to be provided 
to the public for a thirty day comment period. The addendum thus does 
not change the current approach for low effect HCPs, which we expect 
will comprise eight of the predicted thirty-five new HCPs per year. The 
addendum indicates most other HCPs will be provided to the public for a 
sixty day comment period. Finally the addendum states that large, 
complex HCPs will need to have a ninety day public comment period 
unless the applicant has taken steps to involve the public earlier in 
the HCP process, in which case the HCP will qualify for the sixty day 
comment period.
    This policy guidance on public participation has the potential to 
affect twenty-seven HCPs per year. The large, complex HCPs, predicted 
to account for three of the new HCPs per year, have historically been 
associated with extensive public notice and involvement, often through 
the EIS process under NEPA. This type of public involvement would 
qualify these HCPs for the sixty day comment period. The parallel NEPA 
process will typically require significant comment time periods, often 
matching or exceeding the time periods established by this addendum. We 
have also observed that the large HCPs of the past were noticed for 
more than the minimum thirty days required by section 10 simply because 
of their size and complexity and in response to requests for extensions 
from the public. We have, therefore, determined that this addendum will 
not alter the current practice with regard to the length of public 
comment periods and large HCPs. Based on this determination, we 
conclude that this policy guidance on public participation will not 
have an economic effect.
    Of the remaining twenty-four expected HCPs per year, we expect at 
least four of those HCPs would have longer than the minimum public 
comment period because of reasonable public requests for extensions. 
There are, therefore, twenty HCPs per year that could potentially be 
effected by the policy guidance on public participation. Of these 
twenty HCPs, only a small number are expected to actually have all 
local approvals in hand and be ready to proceed before the conclusion 
of HCP processing, including the public comment period. Unless an HCP 
applicant is otherwise ready to begin project implementation, we do not 
believe an additional thirty days of public comment will have any 
economic effect. For the small number of HCPs that may be waiting for 
the HCP process to be completed, the economic effect of a thirty day 
extension to the process will depend tremendously on the scale and type 
of project. In addition, many projects will be able to proceed in part 
prior to permit issuance, providing there is no incidental take of 
species or a preclusion of the development of reasonable and prudent 
alternatives. See 16 U.S.C. 1536(d). HCP applicants will be fully aware 
of the addendum's public participation time lines and will, therefore, 
be able to factor the additional public comment period into their HCP 
planning early. This early recognition of the time lines may prove 
beneficial compared to planning on a thirty day comment period only to 
find near the end of that period that the Services has decided sound 
grounds exist for an extension. Based on this narrative analysis, we 
conclude that an increase in public comment periods will have a 
negligible economic effect.
    In summary, the 5 Point HCP addendum provides recognition and 
policy support for existing practices in each of the five concept areas 
discussed above. The addendum does not change the current statutory or 
regulatory framework and merely provides refinements to existing 
policy. As a result, the addendum will not have a significant economic 
effect.
    b. This addendum will not create inconsistencies with other 
agencies' actions. The addendum to the HCP Handbook does change the 
existing requirements for a HCP. The addendum

[[Page 35250]]

is intended to assist Government employees and as such may also assist 
the public. The only change to the HCP Handbook included in the 
addendum is to provide adequate time for public comment when developing 
HCPs.
    c. This policy will not materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients. The addendum to the HCP Handbook was developed solely to 
provide consistency to the HCP program and is intended as guidance for 
the Government.
    d. This policy will not raise novel legal or policy issues. The 
addendum to the HCP Handbook was developed to provide clarification for 
the HCP process and does not change regulations or significantly change 
existing policy.
    The Departments of Interior and Commerce certify that this policy 
will not have a significant economic effect on a substantial number of 
small entities as defined under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). There are more than 248 existing HCPs of which 106 
are for small entities and 142 are for corporations or other large 
entities. The addendum does not change the ability of small entities to 
develop HCPs in the future. The Services expect small entities will 
have the same proportion of future HCPs.
    This policy is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This policy:
    1. Does not have an annual effect on the economy of $100 million or 
more.
    2. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    3. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. The 
purpose of the addendum is to provide Federal employees the guidance 
required for the consistent application of the Handbook for developing 
HCPs. The addendum will provide some simplification to the HCP Program 
due to clarification of processes.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    a. This addendum will not ``significantly or uniquely'' affect 
small governments. A Small Government Agency Plan is not required. The 
HCP Handbook provides guidance to Federal employees involved in 
reviewing and approving incidental take permits that include habitat 
conservation plans. The HCPs and permits generally are coordinated with 
appropriate State and local governments to include their views on the 
activities covered by the permit (in many cases, the activities also 
require State or local government authorization). In some instances, 
the applicant is the local government seeking incidental take permits 
for activities planned and conducted within its area of jurisdiction. 
The addendum does not change this process by encouraging applicants to 
coordinate with State agencies. As with all other applications, this 
addendum will not have an effect on small governments.
    b. This policy will not produce a Federal mandate of $100 million 
or greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. See discussion in the 
section titled ``Regulatory Planning and Review, Regulatory Flexibility 
Act, and Small Business Regulatory Enforcement Fairness Act.''

Takings Implication Assessment

    In accordance with Executive Order 12630, the policy does not have 
significant takings implications. A takings implication assessment is 
not required. The addendum guides employees in the evaluation and 
approval of applications for incidental take permits under existing 
law.

Federalism Assessment

    In accordance with Executive Order 13132, the policy does not have 
sufficient Federalism implications to warrant preparation of a 
Federalism assessment. This addendum does not change the relationship 
between the Services and applicants, nor does it alter the Services' 
relationship with State and local governments within the HCP Program.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the policy does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act.

    This addendum does not require an information collection under the 
Paperwork Reduction Act. A related information collection associated 
with incidental take permits is covered by existing OMB approvals 
(#1018-0094 for FWS #0648-0230 for NMFS).

National Environmental Policy Act

    The Department of the Interior has determined that the issuance of 
the policy is categorically excluded under the Department's National 
Environmental Policy Act procedures in 516 DM 2, Appendix 1.10. The 
National Oceanic and Atmospheric Administration (NOAA) has determined 
that the issuance of this guidance qualifies for a categorical 
exclusion as defined by the NOAA 216-6 Administrative Order, 
Environmental Review Procedure.

Section 7  Consultation

    The Services do not need to complete a section 7 consultation on 
this final policy. An intra-Service consultation is completed prior to 
issuing incidental take permits under 10(a)(1)(B) of the Endangered 
Species Act associated with individual HCPs.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

Addendum to The HCP Handbook

    The five sections (or five-points) of the final addendum are 
contained entirely within this notice. The Services will adhere to the 
guidance provided in the addendum. Nothing in this guidance is intended 
to supersede or alter any aspect of Federal law or regulation 
pertaining to the conservation of threatened or endangered species.

Biological Goals And Objectives

What Are an HCP's Biological Goals and Objectives?

    HCPs have always been designed to achieve a biological purpose, yet 
they may not have specifically stated those biological goals. In the 
future, the Services and HCP applicants will clearly and consistently 
define the expected outcome, i.e., biological goal(s). This rather 
simple concept will facilitate communication among the scientific 
community, the agencies, and the applicants by providing direction for 
the development of HCPs.
    The HCP Handbook discusses identifying biological goals and 
objectives (Chapter 3). Since biological goals and objectives are 
inherent to the HCP process, HCPs have had implied biological goals and 
objectives, and many recent HCPs include explicit biological goals or 
objectives. Explicit biological goals and objectives clarify the 
purpose and direction of an HCP's operating conservation program. They 
create parameters and benchmarks for developing conservation measures,

[[Page 35251]]

provide the rationale behind the HCP's terms and conditions, promote an 
effective monitoring program, and, where appropriate, help determine 
the focus of an adaptive management strategy.

What Are Biological Goals and Objectives in HCPs?

    In the context of HCPs, biological goals are the broad, guiding 
principles for the operating conservation program of the HCP. They are 
the rationale behind the minimization and mitigation strategies. For 
more complex HCPs, biological objectives can be used to step down the 
biological goals into manageable, and, therefore, more understandable 
units. Multiple species HCPs may categorize goals by species or by 
habitat, depending on the structure of the operating conservation 
program. HCPs that are smaller in scope would have simpler biological 
goals that may not need to be stepped down into objectives. It should 
be noted that the biological goals of an individual HCP are not 
necessarily equivalent to the range-wide recovery goals and 
conservation of the species. However, if viewed collectively, the 
biological goals and objectives of HCPs covering the same species 
should support the recovery goals and conservation.
    The biological goals and objectives of an HCP are commensurate with 
the specific impacts and duration of the applicant's proposed action. 
For example, low-effect HCPs generally have simple measurable 
biological goals, such as contributing to a regional preserve design 
through a mitigation bank or avoiding breeding habitat of a particular 
species.

How Do I Incorporate Biological Goals and Ojectives Into an HCP?

    Determination of the biological goals and objectives is integral to 
the development of the operating conservation program. Conservation 
measures identified in an HCP, its accompanying incidental take permit, 
and/or IA, if used, provide the means for achieving the biological 
goals and objectives. We will work with the applicant to develop the 
biological goals and objectives by examining the applicant's proposed 
action and the overall conservation needs of the covered species and/or 
its habitat.
    The biological goals and objectives are refined as the operating 
conservation program takes shape. Initial biological goals and 
objectives of an HCP begin by articulating the rationale behind the 
operating conservation program. The Services and applicant improve the 
initial biological goals by compiling the known information of the 
species, estimating the anticipated effects to the species, and stating 
any assumptions made. If the operating conservation program is 
relatively complex, the biological goal is divided into manageable and 
measurable objectives. Biological objectives are the different 
components needed to achieve the biological goal such as preserving 
sufficient habitat, managing the habitat to meet certain criteria, or 
ensuring the persistence of a specific minimum number of individuals. 
The specifics of the operating conservation program are the actions 
anticipated to obtain the biological objectives; therefore, we can use 
these objectives to strengthen the initial operating conservation 
program.
    Elzinga et al. (1998) provide guidance for developing measurable 
objectives for rare plant monitoring that can be used for other 
species. Biological objectives should include the following: species or 
habitat indicator, location, action, quantity/state, and timeframe 
needed to meet the objective. They can be described as a condition to 
be met or as a change to be achieved relative to the existing 
condition. Biological objectives may be addressed in parallel. 
Conversely, achieving the biological objectives may need to occur in 
sequence. For instance, parallel objectives may be (1) maintaining the 
preserve site free of nonnative weeds and (2) enhancing the population 
from 4 individuals to 7 individuals. Sequential objectives may be (1) 
restoring of an area of habitat and then (2) reintroducing the species.
    The Services and applicants have many resources to draw upon when 
determining the biological goals and objectives of an HCP. Both can use 
the available literature, State conservation strategies, candidate 
conservation plans, draft or final recovery plans or outlines, and 
other sources of relevant scientific and commercial information as 
guides in setting biological goals and objectives. Both can consult 
with species experts, State wildlife agencies, recovery teams, and/or 
scientific advisory committees.

What Is the Difference Between a Habitat-Based Goal and a Species-Based 
Goal?

    The biological goals and objectives may be either habitat or 
species based. Habitat-based goals are expressed in terms of amount 
and/or quality of habitat. Species-based goals are expressed in terms 
specific to individuals or populations of that species. Complex 
multispecies or regional HCPs may use a combination of habitat- and 
species-specific goals and objectives. However, according to 50 CFR 
17.22, 17.32, 222.102, and 222.307, each covered species must be 
addressed as if it were listed and named on the permit. Although the 
goals and objectives may be stated in habitat terms, each covered 
species that falls under that goal or objective must be accounted for 
individually as it relates to that habitat.

Are Permittees Required To Achieve the Biological Goals and Objectives 
of the HCP?

    How the biological goals fit with the implementation of an HCP may 
be framed as a series of prescriptive measures to be carried out (a 
prescription-based HCP) or the ability to use any number of measures 
that achieve certain results (a results-based HCP). A prescription-
based HCP outlines a series of tasks that are designed to meet the 
biological goals and objectives. This type of HCP may be most 
appropriate for smaller permits where the permittee would not have an 
ongoing management responsibility. A results-based HCP has flexibility 
in its management so that the permittee may institute the actions that 
are necessary as long as they achieve the intended result (i.e., the 
biological goals and objectives), especially if they have a long-term 
commitment to the conservation program of the HCP. HCPs can also be a 
mix of the two strategies.
    The Services and the applicant should determine the range of 
acceptable and anticipated management adjustments necessary to respond 
to new information. This process will enable the applicant to assess 
the potential economic impacts of adjustments before agreeing to the 
HCP while allowing for flexibility in the implementation of the HCP in 
order to meet the biological goals.
    Regardless of the type of goals and objectives used and how they 
fit within implementation of the HCP, the Services will ensure that the 
biological goals are consistent with conservation actions needed to 
adequately minimize and mitigate impacts to the covered species to the 
maximum extent practicable. Whether the HCP is based on prescriptions, 
results, or both, the permittee's obligation for meeting the biological 
goals and objectives is proper implementation of the operating 
conservation program of the HCP. In other words, under the No Surprises 
assurances, a permittee is required only to implement the HCP, IA, if 
used, and terms and conditions of the permit. Implementation may 
include provisions for ongoing changes in actions in order

[[Page 35252]]

to achieve results or due to results from an adaptive management 
strategy.

Adaptive Management

What Is Adaptive Management?

    Adaptive management is an integrated method for addressing 
uncertainty in natural resource management (Holling 1978, Walters 1986, 
Gundersen 1999). It also refers to a structured process for learning by 
doing. The concept is used in a number of different contexts, including 
the social science aspects of learning and change in natural resource 
management. The term adaptive management was adopted by Holling (1978) 
for natural resource management, who described adaptive management as 
an interactive process that not only reduces, but benefits from, 
uncertainty. Additionally, Walters (1986) breaks down categories of 
learning through implementation as ``active'' and ``passive'' adaptive 
management. Passive adaptation is where information obtained is used to 
determine a single best course of action. Active adaptation is 
developing and testing a range of alternative strategies (Walters and 
Holling 1990). The Services believe that both of these types of 
adaptive management are appropriate to consider when developing a 
strategy to address uncertainty. Therefore, we are defining adaptive 
management broadly as a method for examining alternative strategies for 
meeting measurable biological goals and objectives, and then, if 
necessary, adjusting future conservation management actions according 
to what is learned.
    Implementation of adaptive strategies has been criticized for 
failing to resolve uncertainty or effectively implementing good 
experimental design (Walters 1997; Lee 1999). These failures are 
typically attributed to agency or stakeholder unwillingness to accept 
the risk involved in experimentation. The Services do have certain 
constraints in the HCP Program that may inhibit experimental design. 
For instance, stakeholder involvement in the development of many HCPs, 
including the adaptive management design, is largely at the discretion 
of the applicant.
    Another restriction we face collectively (Services, applicants, 
other stakeholders) is the possible risks to species that may arise 
with using an experimental design. Many adaptive management processes 
with public/stakeholder involvement address large-scale management 
issues (e.g., Florida Everglades, Grand Canyon). This type of process 
is complicated and involved, but appropriate for the scale of the 
issue. Similarly, more active and involved approaches to adaptive 
management are appropriate for large-scale HCPs. However, an active 
approach may pose too much of a risk to the species; therefore, a more 
passive approach may be the best course of action. An active approach 
may also be too cumbersome for the scope of the HCP and, therefore, a 
passive approach may be more appropriate.
    Despite the potential obstacles to incorporating a comprehensive 
adaptive management strategy in an HCP, the Services incorporate 
adaptive management strategies when appropriate. We believe it is 
important that small- to medium-sized HCPs incorporate the flexibility 
to change implementation strategies after permit issuance. The HCP 
Program is flexible enough to develop adaptive management strategies 
that will facilitate and improve the decision-making process for the 
operating conservation program of a given HCP as well as provide for 
informative decision-making.

When Should Adaptive Management Be Incorporated Into an HCP?

    The Services will consider adaptive management as a tool to address 
uncertainty in the conservation of a species covered by an HCP. 
Whenever an adaptive management strategy is used, the approved HCP must 
outline the agreed-upon future changes to the operating conservation 
program. Not all HCPs or all species covered in an incidental take 
permit need an adaptive management strategy. However, an adaptive 
management strategy is essential for HCPs that would otherwise pose a 
significant risk to the species at the time the permit is issued due to 
significant data or information gaps. Possible significant data gaps 
that may require an adaptive management strategy include, but are not 
limited to, a significant lack of specific information about the 
ecology of the species or its habitat (e.g., food preferences, relative 
importance of predators, territory size), uncertainty in the 
effectiveness of habitat or species management techniques, or lack of 
knowledge on the degree of potential effects of the activity on the 
species covered in the incidental take permit.
    Often, a direct relationship exists between the level of biological 
uncertainty for a covered species and the degree of risk that an 
incidental take permit could pose for that species. Therefore, the 
operating conservation program may need to be relatively cautious 
initially and adjusted later based on new information, even though a 
cautious approach may limit the number of alternative strategies that 
may be tested. A practical adaptive management strategy within the 
operating conservation program of a long-term incidental take permit 
will include milestones that are reviewed at scheduled intervals during 
the lifetime of the incidental take permit and permitted action. If a 
relatively high degree of risk exists, milestones and adjustments may 
need to occur early and often.
    Adaptive management should not be a catchall for every uncertainty 
or a means to address issues that could not be resolved during 
negotiations of the HCP. There may be some circumstances with such a 
high degree of uncertainty and potential significant effects that a 
species should not receive coverage in an incidental take permit at all 
until additional research is conducted.

What Are the Elements of an Adaptive Management Strategy in HCPs?

    In an HCP, adaptive management strategies can assist the Services 
and the applicant in developing an adequate operating conservation 
program and improving its effectiveness. An adaptive management 
strategy should (1) identify the uncertainty and the questions that 
need to be addressed to resolve the uncertainty; (2) develop 
alternative strategies and determine which experimental strategies to 
implement; (3) integrate a monitoring program that is able to detect 
the necessary information for strategy evaluation; and (4) incorporate 
feedback loops that link implementation and monitoring to a decision-
making process (which may be similar to a dispute-resolution process) 
that result in appropriate changes in management. If you are developing 
adaptive management strategies, we encourage you to review the 
scientific literature that discusses adaptive management (for a 
starting point see literature cited at the end of the addendum).
    Identifying the uncertainty to be addressed is the foundation of 
the adaptive management strategy. Other components include a 
description of the goal of the operating conservation program (i.e., 
the biological goals and objectives of the HCP) and the identification 
of the parameters that potentially affect that goal. This requires 
communication between the applicant and the Services to identify 
expectations for the adaptive management strategy and may also involve 
assistance from scientists. After this step, we (the Services, 
applicants, and any other participants) will develop the range of 
possible ``experimental'' strategies which may involve some type of

[[Page 35253]]

modeling (which can be as simple as a written description of the 
expected outcomes or as complex as a mathematical model demonstrating 
expected outcomes) of the resource in question. If modeling is 
involved, we must clearly articulate the assumptions and limitations of 
the model used. Many factors may influence the type of alternatives to 
explore, including, but not limited to, economics, policies and 
regulations, and amount of risk to the species. This stage may be an 
appropriate time to involve other stakeholders to help identify the 
alternative strategies.
    Next, a monitoring program needs to be designed that will 
adequately detect the results of the adaptive management strategy. 
Integration of the HCP's monitoring program into the adaptive 
management strategy is essential. The monitoring program plays an 
essential role of determining whether the chosen strategy(ies) is 
providing the desired outcome (i.e., achieving the biological goals of 
the HCP). If a scientific advisory committee is being used, this may be 
an appropriate item for their review. An applicant may also submit a 
monitoring program for independent peer review.
    Finally, an adaptive management strategy must define the feedback 
process that will be used to ensure that the new information gained 
from the monitoring program results in effective change in management 
of the resource.

How Does Adaptive Management Affect No Surprises Assurances?

    HCP assurances (No Surprises) and the use of adaptive management 
strategies are compatible. The assurances apply once all appropriate 
HCP provisions have been mutually crafted and agreed upon and approved 
by the Services and the applicant. Adaptive management strategies, if 
used, are part of those provisions, and their implementation becomes 
part of a properly implemented conservation plan. When an HCP, permit, 
and IA, if used, incorporate an adaptive management strategy, it should 
clearly state the range of possible operating conservation program 
adjustments due to significant new information, risk, or uncertainty. 
This range defines the limits of what resource commitments may be 
required of the permittee. This process will enable the applicant to 
assess the potential economic impacts of adjustments before agreeing to 
the HCP.

Is Adaptive Management the Only Method for Changing the Operating 
Conservation Program of an HCP?

    HCPs may be designed to provide flexibility other than through the 
use of adaptive management. The No Surprises final rule lays a 
foundation for contingency planning in HCPs that may or may not include 
adaptive management. This contingency planning is addressed largely 
under the topic of ``changed circumstances.'' Changed circumstances are 
circumstances that can be reasonably anticipated, and the HCP can 
incorporate measures to be implemented if the circumstances occur. The 
permittee or another responsible party may need the flexibility 
provided by the ``changed circumstances'' regulation to employ 
alternative methods or strategies within the operating conservation 
program to achieve the biological goals and objectives. This 
flexibility also allows previously agreed upon management and/or 
mitigation actions to be implemented or discontinued, as needed, in 
response to changed circumstances. These actions are not necessarily 
adaptive management and may be a process for implementing change to the 
operating program or simply a different conservation measure. The HCP, 
incidental take permit, and IA, if any, must describe the agreed upon 
range of management and/or mitigation actions and the process by which 
the management and funding decisions are made and implemented.

How Can an HCP Use Adaptive Management Without a Large and Expensive 
Experimental Design?

    Adaptive management has traditionally been viewed and designed for 
large-scale systems. However, in some situations we may want to retain 
the flexibility of addressing uncertainty through an adaptive 
management strategy at a smaller scale. In such situations, an adaptive 
management strategy could take many forms including creating a simple 
feedback loop so that management changes could be implemented based on 
results of the HCP's monitoring program. Similarly, the agreed-upon 
strategy may be integration of an HCP with any ongoing research, 
recovery planning, and conservation planning by Federal, State, and 
local agencies. This integration is an efficient way to address 
uncertainty and provide the information needed to guide changes in 
small to medium sized HCPs. We can also view smaller, yet similar HCPs 
collectively across a landscape in order to adapt our approaches in 
future HCPs (Johnson 1999). This approach will require us to coordinate 
information among similar HCPs, including communication with the 
individual applicants regarding their role in such a landscape 
approach.

Monitoring

What Is Monitoring in the HCP Program?

    Monitoring is a mandatory element of all HCPs (See 50 CFR 17.22, 
17.32, and 222.307). When properly designed and implemented, monitoring 
programs for HCPs should provide the information necessary to assess 
compliance and project impacts, and verify progress toward the 
biological goals and objectives. Monitoring also provides the 
scientific data necessary to evaluate the success of the HCP's 
operating conservation programs with respect to the possible use of 
those strategies in future HCPs or other programs that contribute to 
the conservation of species and their habitat. The HCP Handbook already 
provides guidance for developing monitoring measures (Chapter 3, 
section B.4.) and discusses reporting requirements (Chapter 6, section 
E.4.). The following information further clarifies and provides 
additional guidance for the monitoring component of an HCP, permit, or 
IA.

What Are the Types of Monitoring That Can Be Incorporated Into HCPs?

    The Services and the applicant must ensure that the monitoring 
program of an HCP provides information to: (1) Evaluate compliance; (2) 
determine if biological goals and objectives are being met; and (3) 
provide feedback information for an adaptive management strategy, if 
one is used. HCP monitoring is divided into two types. Compliance 
Monitoring is verifying that the permittee is carrying out the terms of 
the HCP, permit, and IA, if one is used. Effects and Effectiveness 
Monitoring evaluates the effects of the permitted action and determines 
whether the effectiveness of the operating conservation program of the 
HCP are consistent with the assumptions and predictions made when the 
HCP was developed and approved; in other words, is the HCP achieving 
the biological goals and objectives.
    Scientific literature discussing monitoring uses similar terms as 
the addendum but the terms may have different meanings. For instance, 
the term ``validation monitoring'' is the same concept as the 
addendum's term ``effectiveness monitoring.'' However, ``effectiveness 
monitoring'' in the scientific literature simply means measuring the 
status of species. ``Implementation monitoring'' is roughly equivalent 
to the addendum's term ``compliance monitoring'' with the added 
regulatory nature of the involvement of a permit.

[[Page 35254]]

What Determines the Extent of a Monitoring Program?

    The scope of the monitoring program should be commensurate with the 
scope and duration of the operating conservation program and the 
project impacts. Biological goals and objectives provide a framework 
for developing a monitoring program that measures progress toward 
meeting those goals and objectives. If an HCP, permit, and/or IA has an 
adaptive management strategy, integrating the monitoring program into 
this strategy is crucial in order to guide any necessary changes in 
management.
    Monitoring programs for large-scale or regional planning efforts 
may be elaborate and track more than one component of the HCP (e.g., 
habitat quality or collection of mitigation fees). Conversely, 
monitoring programs for HCPs with smaller impacts of short duration 
might only need to file simple reports that document whether the HCP 
has been implemented as described. For example, if an HCP affects only 
a portion of a population, the permittee should not generally be 
responsible for monitoring the entire population. In addition, it may 
not be appropriate for a monitoring program to involve counting of 
populations or individuals or making an assessment of habitat. The 
appropriate unit of measure in a monitoring program depends upon the 
specific impacts and operating conservation program within an HCP. The 
Services are responsible for ensuring that the appropriate units of 
measure and protocols are used and should coordinate monitoring 
programs to obtain a larger view of the status of a population. The 
applicant and the Services should also design the monitoring program to 
reflect the structure of the biological goals and objectives.
    The monitoring program should reflect the measurable biological 
goals and objectives. The following components are essential for most 
monitoring protocols (the size and scope of the HCP will dictate the 
actual level of detail in each item): (1) Assess the implementation and 
effectiveness of the HCP terms and conditions (e.g., financial 
responsibilities and obligations, management responsibilities, and 
other aspects of the incidental take permit, HCP, and the IA, if 
applicable); (2) determine the level of incidental take of the covered 
species; (3) determine the biological conditions resulting from the 
operating conservation program (e.g., change in the species' status or 
a change in the habitat conditions); and (4) provide any information 
needed to implement an adaptive management strategy, if utilized. An 
effective monitoring program is flexible enough to allow modifications, 
if necessary, to obtain the appropriate information.
    Monitoring programs will vary based on whether they are for low-
effect or for regional, multispecies HCPs; however, the general 
elements of each program are similar. Post-activity or post-
construction monitoring, along with a single report at the end of the 
monitoring period, will often satisfy the monitoring requirements for 
low-effect HCPs. For other HCPs, monitoring programs will be more 
comprehensive and may include milestones, timelines, and/or trigger 
points for change.
    Effects and effectiveness monitoring includes, but is not limited 
to, the following:
    1. Periodic accounting of incidental take that occurred in 
conjunction with the permitted activity;
    2. Surveys to determine species status, appropriately measured for 
the particular operating conservation program (e.g., presence, density, 
or reproductive rates);
    3. Assessments of habitat condition;
    4. Progress reports on fulfillment of the operating conservation 
program (e.g., habitat acres acquired and/or restored); and
    5. Evaluations of the operating conservation program and its 
progress toward its intended biological goals.

What Units Should Be Monitored in an HCP?

    Each HCP's monitoring program should be customized to reflect the 
biological goals, the scope, and the particular implementation tasks of 
the HCP. In order to obtain meaningful information, the applicant and 
the Services should structure the monitoring methods and standards so 
that we can compare the results from one reporting period to another 
period or compare different areas, and the monitoring protocol responds 
to the question(s) asked. Monitored units should reflect the biological 
objective's measurable units (e.g., if the biological objective is in 
terms of numbers of individuals, the monitoring program should measure 
the number of individuals). The monitoring program will be based on 
sound science. Standard survey or other previously-established 
monitoring protocols should be used. Although the specific methods used 
to gather necessary data may differ depending on the species and 
habitat types, monitoring programs should use a multispecies approach 
when appropriate.

What Role Do the Services Have in Monitoring?

    Both the Services and the permittee are responsible for monitoring 
the implementation of the HCP. The Services' primary monitoring 
responsibilities (with the assistance of the permittee) are ensuring 
compliance with the permit's terms and conditions, including proper 
implementation of the HCP by the permittee. Permittee assistance with 
compliance monitoring includes monitoring the implementation and 
reporting their findings/results. The permittee, with the assistance of 
the Services, is responsible for verifying the effects and 
effectiveness of the HCP. To monitor all aspects of an HCP effectively, 
and to ensure its ultimate success, the entire monitoring program 
should incorporate both types of monitoring. The Services and the 
applicant should coordinate the two aspects of monitoring, and the 
monitoring program should also clearly designate who is responsible for 
the various aspects of monitoring.
    The Services are responsible for ensuring that the permittee is 
meeting the terms and conditions of the HCP, its accompanying 
incidental take permit, and IA, if any (i.e., compliance monitoring). 
The Services should verify adherence to the terms and conditions of the 
incidental take permit, HCP, IA, and any other related agreements and 
should ensure that incidental take of the covered species does not 
exceed the level authorized under the incidental take permit. 
Regulations at 50 CFR Secs. 13.45 and 222.301, provide the authority 
for the Services to require periodic reports unless otherwise specified 
by the incidental take permit. Also, the Services will ensure that the 
reporting requirements are tailored for documenting compliance with the 
incidental take permit (e.g., documentation of habitat acquisition, use 
of photographs). These reports help determine whether the permittee is 
properly implementing the terms and conditions of the HCP, its 
incidental take permit, and any IA, and will provide a long-term 
administrative record documenting progress made under the incidental 
take permit.
    In addition to reviewing reports submitted by the permittee, it is 
important for the Services to make field visits to verify the accuracy 
of monitoring data submitted by the permittees. These visits allow the 
Services to check for information, identify unanticipated deficiencies 
or benefits, develop closer cooperative ties with the permittee, 
prevent accidental violations of the incidental take permit's

[[Page 35255]]

terms and conditions, and assist the permittee and Services in 
developing corrective actions when necessary.
    For large-scale or regional HCPs, oversight committees, made up of 
representatives from significantly affected entities (e.g., State Fish 
and Wildlife agencies), are often used to ensure proper and periodic 
review of the monitoring program and to ensure that each program 
properly implements the terms and conditions of the incidental take 
permit. For example, the Wisconsin Statewide HCP for the Karner blue 
butterfly includes an auditing approach to ensure incidental take 
permit compliance. The lead permittee, Wisconsin Department of Natural 
Resources (Wisconsin DNR), will initially conduct annual on-site audits 
of each partner. FWS will audit the Wisconsin DNR in a similar fashion. 
In addition, FWS will accompany the Wisconsin DNR on the partner audits 
as appropriate to understand partner compliance levels. Over time, if 
performance levels are acceptable, Wisconsin DNR will conduct the 
audits less frequently. Each partner will provide an annual monitoring 
report and will submit these along with their audit report to FWS.
    For large-scale or regional HCPs, oversight committees should 
periodically evaluate the permittee's implementation of the HCP, its 
incidental take permit, and IA and the success of the operating 
conservation program in reaching its identified biological goals and 
objectives. Such committees usually include species experts and 
representatives of the permittee, the Services, and other affected 
agencies and entities. Submitting the committee's findings to 
recognized experts in pertinent fields (e.g., conservation biologists 
or restoration specialists) for review or having technical experts 
conduct field investigations to assess implementation of the terms and 
conditions would also be beneficial. Because the formation of these 
committees may be subject to the Federal Advisory Committee Act, the 
role of the participants and the purpose of the meetings must be 
clearly identified. Oversight committees should meet at least annually 
and review implementation of the monitoring program and filing of 
reports as defined in the HCP, permit, and/or IA, if one is used.

What Role Does the Permittee Have in Monitoring?

    Not only do permittees provide regular implementation reports, they 
are also involved in effects and effectiveness monitoring. Effects 
monitoring determines the extent of impacts from the permitted 
activity. Effectiveness monitoring, in the HCP program, assesses 
progress toward the biological goals and objectives of the HCP (e.g., 
if the conservation strategies are producing the desired habitat 
conditions or population numbers). Effects and effectiveness monitoring 
may also involve assessing threats and population trends of the covered 
species related to the permitted activities, as well as monitoring the 
development of targeted habitat conditions. Permittees, with assistance 
from the Services, should ensure that the HCP includes provisions for 
monitoring the effects and effectiveness of the HCP. The Services and 
the HCP permittee will cooperatively develop the effects and 
effectiveness monitoring program and determine responsibility for its 
various components. In multi-party HCPs, different parties may monitor 
different aspects of the HCP. The Services must periodically review any 
monitoring program to confirm that it is conducted according to their 
standards.

What Should Be Included in Monitoring Reports?

    The Services will streamline the reporting requirements for 
monitoring programs by requesting all reports in a single document. The 
HCP, permit, or IA should specifically state the level of detail and 
quantification needed in the monitoring report and tailor report due 
dates to the activities conducted under the incidental take permit 
(e.g., due at the end of a particular stage of the project or the 
anniversary date of incidental take permit issuance). Most monitoring 
programs require reports annually, usually due on the anniversary date 
of incidental take permit issuance. Wherever possible, the Services 
will coordinate the due dates with other reporting requirements (e.g., 
State reports), so the permittee can satisfy more than one reporting 
requirement with a single report. The following list represents the 
information generally needed in a monitoring report:
    1. Biological goals and objectives of the HCP (which may need to be 
reported only once);
    2. Objectives for the monitoring program (which may need to be 
reported only once);
    3. Effects on the covered species or habitat;
    4. Location of sampling sites;
    5. Methods for data collection and variables measured;
    6. Frequency, timing, and duration of sampling for the variables;
    7. Description of the data analysis and who conducted the analyses; 
and
    8. Evaluation of progress toward achieving measurable biological 
goals and objectives and other terms and conditions as required by the 
incidental take permit or IA.
    These elements may be simplified for periods of no activity or low-
effect HCPs. If a required report is not submitted by the date 
specified in the HCP or incidental take permit terms and conditions, or 
is inadequate, the Services will notify the permittee. The Services 
have discretion to offer the permittee an extension of time to 
demonstrate compliance. The Services have examined this reporting 
guidance under the Paperwork Reduction Act of 1995 and found that it 
does not contain requests for additional information or an increase in 
the collection requirements other than those already approved for 
incidental take permits (OMB approval for FWS, # 1018-0094; for NMFS, # 
0648-0230).

How Are Monitoring Programs Funded?

    The ESA and the implementing regulations (50 CFR 17 and 222) 
require that HCPs specify the measures the permittee will adopt to 
ensure adequate funding for the HCP. The Services should not approve an 
HCP that does not contain an adequate funding commitment from the 
applicant/permittee to support an acceptable monitoring program unless 
the HCP establishes alternative funding mechanisms. The Services and 
the applicant should work together to develop the monitoring program 
and determine who will be responsible for monitoring the various 
components of the HCP. Specific monitoring tasks may be assigned to 
entities other than the permittee (e.g., State or Tribal agencies) as 
long as the Services and parties responsible for implementing the HCP 
approve of the monitoring assignment. The terms of the HCP, incidental 
take permit, and IA may contain funding mechanisms that provide for a 
public (e.g., local, State, or Federal) or a private entity to conduct 
all or portions of the monitoring. This funding mechanism must be 
agreed upon by the Services and the parties responsible for 
implementing the HCP.

Permit Duration

How Do We Decide the Length of Time for Which the Permit Is in Place?

    Both FWS and NMFS regulations for incidental take permits outline 
factors to consider when determining incidental take permit duration 
(50 CFR 17.32 and 222.307). These factors include duration of the 
applicant's proposed activities and the expected positive and negative

[[Page 35256]]

effects on covered species associated with the proposed duration, 
including the extent to which the operating conservation program will 
increase the long-term survivability of the listed species and/or 
enhance its habitat. For instance, if the permittee's action or the 
implementation of the conservation measures continually occur over a 
long period of time, such as with timber harvest management, the permit 
would need to encompass that time period.
    The Services will also consider the extent of information 
underlying the HCP, the length of time necessary to implement and 
achieve the benefits of the operating conservation program, and the 
extent to which the program incorporates adaptive management 
strategies. Significant biological uncertainty may necessitate an 
adaptive management strategy. The gathering of new information through 
the monitoring program requires an appropriate period of time for 
meaningful interpretation of new information into changes in 
management; this analysis could necessitate a permit with a longer 
duration. However, if an adaptive management strategy that 
significantly reduces the risk of the HCP to that species cannot be 
devised and implemented, then, if the issuance criteria are met, a 
shorter duration may be appropriate.
    The varying biological impacts resulting from the proposed activity 
(e.g., variations in the length of timber rotations and treatments 
versus a real estate subdivision buildout) and the nature or scope of 
the permitted activity and conservation program in the HCP (e.g., 
housing or commercial developments versus long-term sustainable 
forestry; conservation easements) account for variation in permit 
duration. Longer permits may be necessary to ensure long-term active 
commitments to the HCP and typically include up-front contingency 
planning for changed circumstances to allow appropriate changes in the 
conservation measures.

Public Participation

What Is the Public Participation Requirement for HCPs?

    As stated in the HCP Handbook in Chapter 6.B, we currently require 
a minimum 30-day public comment period for all HCP applications. This 
comment period is required by section 10(c) of the ESA and the 
implementing regulations at 50 CFR 17 and 222. The Services recognize 
the concern of the public regarding an inadequate time for the public 
comment period, especially for large-scale HCPs. With a few exceptions, 
we are extending the minimum comment period to 60 days for most HCPs. 
The exceptions to a 60-day comment period would be for low-effect HCPs, 
individual permits under a programmatic HCP, and large-scale, regional, 
or exceptionally complex HCPs.
    The Services believe the current 30-day public comment period 
provides enough time for interested parties to review major HCP 
amendments and low-effect HCPs. Low-effect HCPs have a categorical 
exclusion from NEPA and, therefore, do not have a NEPA public 
participation requirement. Similarly, in some cases, individual permits 
issued under a programmatic HCP may not need additional public review 
since the larger, programmatic HCP would have undergone more extensive 
review.
    However, for large-scale, regional, or exceptionally complex HCPs, 
the Services are increasingly encouraging applicants to use 
informational meetings and/or advisory committees. In addition, the 
minimum comment period for these HCPs is now 90 days, unless 
significant public participation occurs during HCP development. With 
the extension of the public comment periods, the recommended timeline 
targets for processing incidental take permits are extended 
accordingly: The target timeline from receipt of a complete application 
to the issuance of a permit for low-effect HCPs will remain up to 3 
months, HCPs with an Environmental Assessment (EA) will be 4 to 6 
months, and HCPs with a 90-day comment period and/or an Environmental 
Impact Statement (EIS) may be up to 12 months.

How Do the Services Let Interested Parties Know About the HCP's Comment 
Period?

    During the public comment period, any member of the public may 
review and comment on the HCP and the accompanying NEPA document, if 
applicable. If an EIS is required, the public can also participate 
during the scoping process. We announce all complete applications 
received in the Federal Register. When practicable, the Services will 
announce the availability of HCPs in electronic format and in local 
newspapers of general circulation.

How Do the Services or Applicants Incorporate Public Participation 
During the Development of an HCP?

    The Services will strongly encourage potential applicants to allow 
for public participation during the development of an HCP, particularly 
if non-Federal public agencies (e.g., State Fish and Wildlife agencies) 
are involved. Although the development of an HCP is the applicant's 
responsibility, the Services will encourage applicants for most large-
scale, regional HCP efforts to provide extensive opportunities for 
public involvement during the planning and implementation process.
    The Services encourage the use of scientific advisory committees 
during the development and implementation of an HCP. The integration of 
a scientific advisory committee and perhaps other stakeholders improves 
the development and implementation of any adaptive management strategy. 
Advisory committees can assist the Services and applicants in 
identifying key components of uncertainty and determining alternative 
strategies for addressing that uncertainty. We also encourage the use 
of peer review for an HCP. An applicant, with guidance from the 
Services, may seek independent scientific review of specific sections 
of an HCP and its operating conservation strategy to ensure the use of 
the best scientific information.

How Do the Services Consider Tribal Interest in an HCP?

    We recommend that applicants include participation by affected 
Native American tribes during the development of the HCP. If an 
applicant chooses not to consult with Tribes, under the Secretarial 
Order on Federal-Tribal Trust Responsibilities and ESA, the Services 
will consult with the affected Tribes to evaluate the effects of the 
proposed HCP on tribal trust resources. We will also provide the 
information gained from the consulted tribal government to the HCP 
applicant prior to the submission of the draft HCP for public comment 
and will advocate the incorporation of measures that will conserve, 
restore, or enhance Tribal trust resources. After consultation with the 
tribal government and the applicant and after careful consideration of 
the Tribe's concerns, we will clearly state the rationale for the 
recommended final decision and explain how the decision relates to the 
Services' trust responsibility.

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Gunderson, L. 1999. Resilience, flexibility and adaptive 
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experiments and learning by doing. Ecology 71: 2060.

    Dated: April 4, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.

    Dated: May 19, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-13553 Filed 5-31-00; 8:45 am]
BILLING CODE 4310-55-P; 3510-22-P