HABITAT CONSERVATION PLANNING

1. HABITAT CONSERVATION PLANNING Charles J. Randel,1 III, Howard O. Clark, Jr.,2Darren P. Newman,2 and Thomas P. Dixon3 1Randel Wildlife Consulting, Inc., South Pasadena, CA 2H.T. Harvey & Associates, Fresno, CA 3Atkins, Austin, TX

2. Introduction • Habitat Conservation Planning and Environmental Impact Assessments require a working knowledge • Federal and State Statutes • Federal, State, and Local environmental statutes, regulations, and policies

3. Federal Statutes • National Environmental Policy Act (NEPA) • Provides guidance to federal agencies on the evaluation of federal actions on the environment • Endangered Species Act (ESA) • Section 9 – basis on which Habitat Conservation Plans are founded • Section 7 – Informal Consultation • Required federal agencies proposing actions to consult with the U.S. Fish and Wildlife Service or National Oceanic and Atmospheric Administration Fisheries Service (Informal Consultation) • Section 10 – Formal Consultation • Allows for issuance of “incidental take permits” for federally listed species

4. State Statutes • State Environmental Policy Acts (SEPA) • 15 States currently have SEPAs which are similar to NEPA, with a state agency given regulatory oversight • Policies and regulatory oversight agencies will vary by state

5. Environmental Impact Assessment (EIA) • EIA is the process of identification and evaluation of human actions on the environment • Regulatory agencies are responsible for the preparation and certification of EIAs

6. EIA Documents • EIA Document Types • Environmental Impact Statement (EIS) • Environmental Assessment (EA) • The EA is the most commonly prepared EIA • Categorical Exclusion (CatEx) • Findings of No Significant Impact (FONSI)

7. Environmental Assessment • The EA is meant to be a succinct public document analyzing when a proposed action or project has a potential to have environmental impacts • Preparation of EAs may vary between federal agencies, but must include: • Need for the proposed action • Description of the proposed action and alternatives • Anticipated effects of the proposed action and alternatives • Agency and expert consultation conducted

8. Public Review • Proposed federal actions determined to have a significant environmental affect must • Publish a Notice of Intent (NOI) in the federal register • Prepare a Draft EIA and publish a Notice of Availability (NOA) to receive comments from interested parties • Address received public comments and publish a Final EIA

9. Habitat Conservation Plan • Concept and process modeled after the San Bruno Mountain Habitat Conservation Plan (HCP) developed in the mid-1970s • Created by Congress as a method to reduce issues and conflicts between species with a federal listing and nonfederal development projects • HCPs vary in size of area, number of species covered, and agreement duration • Areas of approved HCPs range from 0.07 ha to >6,475 km2 • May be created for single species or >150

10. HCP Requirements • The following must be included in an HCP • Effects likely to result from the proposed taking • Measures undertaken to monitor, minimize, and mitigate effects, and funding to undertake such measures • Alternative actions considered resulting in no “take” and justification for not implamenting • Additional measures USFWS or NOAA Fisheries may require as necessary or appropriate

11. Assessing “Take” • “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct” by the ESA • Prior to drafting an HCP coordination with USFWS or NOAA Fisheries Service should be conducted to determine if “take” is a likely result of an action or project • USFWS or NOAA Fisheries Service may determine “take” can reasonably be avoided by one of the following: • Relocation of the proposed action or policy area • Relocation of project facilities • Seasonal changes in timing of project • When “take” cannot be avoided an Incidental Take Permit application will be recommended

12. Species and Effect Determination • A project applicant must identify which species are likely to be effected by their proposed project or policy • It is recommended that all species potentially effected by addressed in the HCP to reduce potential violations of the ESA • HCPs should include: • Delineation of HCP boundary or plan area • Biological data collected and synthesis for species covered • Identification of activities likely to result in incidental take • Qualification of anticipated levels of “Take”

13. Anticipated Take Levels • Incidental take anticipated due to proposed actions must be provided • A “good faith” effort must be made to determine the amount of incidental take for each species covered under the Incidental Take Permit • May be the actual number of each species anticipated to be killed, harmed, or harassed by the proposed action • May be based on the amount of habitat affected either directly or indirectly from proposed project elements when the number of individuals is unknown or cannot be determined

14. Mitigation • Commonly employed mitigation approaches for HCPs • Avoidance • May be accomplished through project design or timing of proposed activities • Minimization or effects • Must be approved by U.S. Fish and Wildlife Service • Habitat Restoration • Habitat Preservation

15. Available Funding • Regardless of species, size, or duration HCPs must have sufficient funding to ensure proper implementation • Failure to meet funding levels prior to approval are grounds for suspension, revocation, or denial of existing permits, including Incidental Take Permits

16. Alternative Actions • Actions considered during the HCP process and determined infeasible during implementation • Must include a “no build” alternative • Examples include • Modification of schedules • Project element relocation • Land purchase agreements

17. Coordination and Planning • Early coordination with either the U.S. Fish and Wildlife Service or National Oceanic and Atmospheric Administration Fisheries Services is essential to successful HCPs • Coordination with state regulatory agencies for potential affects on state-listed species should additionally be conducted to ensure successful implementation of an HCP

18. Implementation • Once an HCP is approved and an Incidental Take Permit is issued implementation of the HCP may begin • Monitoring is key to ensure the HCP is being implemented as agreed • Periodic reports are required to ensure compliance with issued permits

19. Safe Harbor Agreements • Safe Harbor Agreements are voluntary agreements where U.S. Fish and Wildlife Service work with nonfederal landowners to develop management actions contributing to the recovery of listed species for a predetermined period of time

20. Candidate Conservation Agrements • A formal agreement between the U.S. Fish and Wildlife Service and nonfederal landowners addressing conservation needs of candidate or at-risk species

21. SUMMARY • Key environmental statues (e.g., NEPA and ESA) established in the 1960s and 1970s • Environmental Impact Assessment can be: • Environmental Impact Statements (EIS) • Environmental Assessments (EA) • Findings of No Significant Impacts (FONSI) • Categorical Exclusions (CATEX) • EIA preparation times are dependent on project or action complexity

22. SUMMARY Incidental Take Permits (ITP) are allowed for private projects under Section 10 of the ESA Prior to USFWS or NOAA Fisheries Service issuing an ITP a Habitat Conservation Plan (HCP) must be prepared HCPs must include: (1) Purpose Statement, (2) Assessment of Potential “take”, (3) Listed and nonlisted species considered for coverage, (4) Likely effects, (5) Delineation of HCP boundary and duration of HCP, (6) Mitigation of “take”, (7) Available Funding, (8) Alternative actions considered, and (9) Coordination and Planning Voluntary alternatives to HCPs include: Safe Harbor Agreements Candidate Conservation Agreements