Frequently Asked Questions
The Monterey County Water Resources Agency (MCWRA) has initiated the process of planning and developing a comprehensive habitat conservation plan (HCP) called the Salinas River HCP. Below are general questions and answers about HCPs. More specific information relating to the Salinas River HCP will be added as it becomes available. HCP general information is adapted from the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service’s (NMFS) 2016 Habitat Conservation Planning Handbook and the USFWS web page, Habitat Conservation Plans.
HCP General FAQs
What is a Habitat Conservation Plan and Incidental Take Permit?
An HCP is required as part of the application for a Section 10(a)(1)(B) incidental take permit (ITP) under the federal Endangered Species Act (ESA). U.S. Fish and Wildlife Service (USFWS) or National Marine Fisheries Service (NMFS), or both, may each issue an ITP depending on the species covered by the HCP.
An ITP is required to comply with the ESA when non-federal activities that are otherwise lawful are reasonably certain to result in incidental take of threatened or endangered species (see below for more information on incidental take). The purpose of the ITP is to authorize the incidental take of a listed species, not to authorize the activities that result in take. The HCP provides the proposed terms and conditions of the ITP such as the activities and species proposed for coverage under the ITP.
California has its own incidental take permitting process authorized under the California Endangered Species Act (CESA). The California incidental take permitting process is regulated under California Fish and Game Code Section 2081(b).
Who needs an ITP?
Per April 26, 2018, USFWS internal guidance, it is up to the applicant to determine if they want to apply for an ITP as USFWS does not require they apply for one. While seeking an ITP is a voluntary action by an applicant, unauthorized take of an ESA-listed species is a violation of the ESA. An ITP should be sought if the take is “reasonably certain” to occur when considering both the direct and indirect impacts of the activities on a listed species.
What is the process for getting take authorization under an HCP?
Undertaking development of an HCP is a voluntary action initiated by the applicant (in this case, MCWRA). While USFWS and NMFS personnel provide detailed guidance and technical assistance throughout the process—and must ultimately approve the HCP—the development of an HCP is driven by the applicant.
The federal wildlife agency oversees development of a draft National Environmental Policy Act (NEPA) analysis. The adoption of the HCP by a local or state jurisdiction permittee requires compliance with the California Environmental Quality Act (CEQA). A draft CEQA document is typically produced concurrent with completion of the draft HCP. Once the regulatory agencies review and approve the draft HCP, the draft HCP and its CEQA and NEPA environmental compliance documents are released for public review and comment. The applicant is responsible for responding to comments on the CEQA document and the lead federal agency (USFWS or NMFS) is responsible for responding to comments on the NEPA document. If the HCP requires revisions based on the public review process, such revisions are made to the HCP and to the CEQA and NEPA documents. A final HCP and CEQA/NEPA document(s) are prepared.
The final step is undertaken by the regulatory agencies during which each agency issuing a permit prepares a findings document to confirm all permit requirements are met. USFWS and NMFS also prepare their respective ITPs and write a biological opinion under Section 7 of the ESA.
The state process for receiving an ITP includes submittal of an application that includes all required information in California Fish and Game Code Section 2081(b) and an associated application fee. Ideally the information included in the application and eventual ITP mirrors that in the HCP and Federal ITP; however, the state process is independent, and differences may occur. Engaging California Department of Fish and Wildlife (CDFW) staff in the development of the HCP generally minimizes the potential for different requirements between permits.
What is take?
Take of any threatened or endangered species is defined by the ESA as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Harm is defined by USFWS (50 Code of Federal Regulations [CFR] 17.3) to include significant habitat modification or degradation where it actually kills or injures a listed species through impairment of essential behavior (e.g., nesting or reproduction). The NMFS definition of harm (50 CFR 222.102) is very similar but adds more specific terms related to fish. It is “...an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering.”
USFWS further defines harass in 50 CFR 17.3 as “...an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” NMFS employs a similar definition.
Take of any threatened or endangered species is defined by CESA as to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. The CESA definition does not include harm, injury, or harassment (Fish and Game Code Section 86).
What are covered activities?
Covered activities are those activities for which take authorization will be provided by USFWS or NMFS and CDFW for the species addressed in the HCP (called covered species).
What is a threatened, endangered, or candidate species?
Under both state and federal law, species may be listed as threatened or endangered (collectively called listed species). Such species are designated under the federal ESA and its implementing regulations at 50 CFR 17.22 (endangered species) and 17.32 (threatened species). Endangered species means any species that is in danger of extinction throughout all or a significant portion of its range. Threatened species means any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Candidate species are those which USFWS has sufficient information on their biological status and threats to propose listing, but for which the development of a proposed listing regulation is precluded by other higher priority listing activities. Candidates receive no protection under the ESA.
Under CESA, endangered species are native species or subspecies of bird, mammal, fish, amphibian, reptile, or plant which are in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease (Fish and Game Code Section 2062). Threatened species are native species or subspecies of bird, mammal, fish, amphibian, reptile, or plant that, although not presently threatened with extinction, are likely to become an endangered species in the foreseeable future in the absence of the special protection and management efforts (Fish and Game Code Section 2067). Candidate species are native species or subspecies of bird, mammal, fish, amphibian, reptile, or plant that the California Fish and Game Commission has formally noticed as being under review by CDFW for listing. Candidates are given full CESA protection (Fish and Game Code 2068).
What is a covered species?
Covered species are those species for which incidental take authorization is provided by an HCP and associated ITP. Covered species may include listed species, as well as candidate, proposed, and other species not listed under the ESA or CESA. Non-listed species are typically covered by an HCP if there is a reasonable belief that the species will become listed during the permit term of the conservation plan. If this were to occur, no additional federal permitting for the newly listed species would be required. While non-listed species can be covered by an HCP, they cannot be covered by a state ITP.
Are take permits needed for listed plants?
There are no federal prohibitions under the ESA for the take of listed plants on non-federal lands, unless taking of those plants is in violation of state law. However, before USFWS or NMFS issues a permit for take of animals, USFWS or NMFS must evaluate the effects of the permit on listed plants because Section 7 of the ESA requires that issuance of an ITP must not jeopardize any listed species, including plants. Therefore, listed plants that are likely to be affected by the action receiving take coverage under an HCP are included as a covered species.
In addition, CESA prohibits take of state-listed plants under certain circumstances. Therefore, a state ITP for a state-listed plant may be required for certain covered activities.
What is species mitigation?
Mitigation reduces or ameliorates potential adverse effects of a proposed activity on covered species. Mitigation addresses specific conservation needs of the covered species, is feasible, and enforceable. Mitigation measures may take many forms, such as preservation of existing habitat, enhancement or restoration of degraded or former habitat, creation of new habitats, establishment of buffer areas around existing habitats, and modifications of land use or water management practices. Mitigation may also include purchasing habitat credit in a mitigation bank, such as a preserve owned and managed by a conservancy group.
For HCPs, applicants must develop a conservation strategy that includes both minimization and mitigation in a manner that ideally fully offsets the impacts of the taking. USFWS uses the phrase “fully offset” to mean completely mitigating any impacts expected to remain after avoidance and minimization measures are applied. To fully offset the impacts of the taking, HCPs generally include conservation measures that fully replace the biological values that would be lost from the covered activities. Fully offset also means the mitigation is commensurate (i.e., equal) with the impacts of the taking.
The mitigation requirements for the state ITP under CESA are very similar and require that take must be minimized and fully mitigated.
What is the legal commitment of an HCP?
The elements of an HCP are made binding through acceptance of the ITPs by a permittee. While the ITPs have expiration dates, the mitigation identified in the HCP is in perpetuity (because permanent impacts on species are also in perpetuity). Violation of the terms of an ITP could result in illegal take under Section 9 of the ESA. If the violation is deemed technical or inadvertent in nature, USFWS or NMFS may send the permittee a notice of noncompliance by certified mail or may recommend alternative actions to the permittee so that they may regain compliance with the terms of the permit.
What other laws besides the ESA and CESA are involved?
In issuing an ITP, USFWS and NMFS must comply with NEPA and all other applicable statutory and regulatory requirements, including the National Historic Preservation Act. USFWS or NMFS is the lead agency under NEPA for an HCP. Similarly, in issuing a state ITP, CDFW must comply with CEQA. The lead agency for the CEQA document for an HCP is often the HCP applicant. When issuing the State ITP under California Fish and Game Code Section 2081(b), CDFW must also comply with CEQA. CDFW utilizes the CEQA document developed by the State agency adopting the HCP (the lead agency under CEQA) to satisfy its requirements under CEQA.
Because of the critical role that water plays in many listed species’ life histories, impacts on species habitat often overlap with impacts on regulated aquatic resources. Covered activities that require work in waterbodies (e.g., rivers, wetlands) typically trigger compliance with laws regulating discharge, fill, and general disturbances of aquatic resources. These laws include, but are not limited to, the federal Clean Water Act, California Porter-Cologne Water Quality Control Act, and California Fish and Game Code Section 1602 (Lake and Streambed Alteration Agreement).
Does the public get to comment on the HCP?
Public comments must be considered in the permit decision. For the HCP, there will be at least one formal public comment period on the application for an ITP. Additionally, NEPA requires public comment on certain types of NEPA documents, and USFWS and NMFS runs these two comment periods concurrently.