35242 Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / Notices

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.

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 EastWest 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.

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

35244 Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / Notices

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 nonFederal 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. Speciesbased goals are expressed in terms specific to

individuals or populations of that species.

Complex multispecies or regional HCPs may

use combination of habitat- and speciesspecific 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 speciesbased, 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-byspecies analysis must be made to

determine if the HCP adequately covers

the species. The relationship of habitat

goals to specific species will help the

Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / Notices 35245

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 onthe-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 resultsoriented 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

35246 Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / Notices

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 upfront 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

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

35248 Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / Notices

TABLE 1.—SIZE DISTRIBUTION OF

HCPS ACCORDING TO PLANNING

AREA, AS OF DECEMBER 31, 1999

[Some plans have both short-term and longterm HCPs, where the total amount of area

addressed in the short-term HCP is included

within the total area of the subsequent longterm 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.]

Size of HCPs Number

of 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

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

35250 Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / Notices

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,

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

35252 Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / Notices

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 largescale 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 largescale 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 decisionmaking 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

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

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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 postconstruction 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 previouslyestablished 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

§§ 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

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

35256 Federal Register / Vol. 65, No. 106 / Thursday, June 1, 2000 / Notices

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 loweffect 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.

Literature Cited

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alluring prospect? Ecology and the

requirements of adaptive management.

Klomp, N. I. & Lunt, I. D. (eds.). Frontiers

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Elzinga, C. L., Salzer, D. W., and J. W.

Willoughby. 1998. Measuring and

monitoring plant populations. BLM

Technical Reference 1730–1. BLM,

Denver, CO.

Gunderson, L. 1999. Resilience, flexibility

and adaptive management—antidotes for

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McLain, R. J. & Lee, R. G. 1996. Adaptive

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Shindler, B., B. Steel, and P. List. 1996.

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management. Journal of Forestry 94: 5.

Walters, C. 1986. Adaptive Management of

Renewable Resources Macmillan, New

York.

Walters, C. 1997. Challenges in adaptive

management of riparian and coastal

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Walters, C. J. and C. S. Holling. 1990. Largescale management 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