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Draft Habitat Conservation Planning Handbook Table of Contents Executive Summary List of Acronyms Glossary Chapter 1: Introduction 1.1 Purpose of the Habitat Conservation Planning (HCP) Program 1.2 Evolution
Draft Habitat Conservation Planning Handbook Table of Contents Executive Summary List of Acronyms Glossary Chapter 1: Introduction 1.1 Purpose of the Habitat Conservation Planning (HCP) Program 1.2 Evolution of the HCP Program Added Regulations and Policies Successes of the HCP Program Lessons Learned 1.3 Laws and Other Requirements Related to the HCP Program Relationship and Hierarchy Endangered Species Act (ESA) Section Section Section Section National Environmental Policy Act (NEPA) National Historic Preservation Act (NHPA) Administrative Procedure Act (APA) Tribal Consultation and the ESA Other Related Process Laws A List of Related Natural Resource Laws 1.4 How to Use the HCP Handbook Purpose of the Handbook Organization of the Handbook Tips for Using the HCP Handbook Chapter 2: Overview of the HCP Planning process 2.1 Phases of HCP Planning 2.2 Considerations for Successful HCP Planning Understanding the Regulations Flexibility and Innovation Considerations Going Fast by Starting Slowly Partnerships, Collaboration, and Communication State and Local Coordination Good Communication Well-written Documents i 2.3 Tips for Success 2.4 Factors Influencing How Long the Process Takes 2.5 Roles and Responsibilities Applicant Consultants and Contractors Services Field Offices Regional Offices Headquarters Legal Counsels Chapter 3: Getting Started PHASE 1: Pre-Application 3.0 Introduction 3.1 When are an HCP and Incidental Take Permit Needed? What is Incidental Take When to Seek an Incidental Take Permit and Develop an HCP? When is it Not Necessary to Seek an Incidental Take Permit 3.2 Avoiding Take and Avoiding the Need for an Incidental Take Permit 3.3 Who Can Apply for an Incidental Take Permit? 3.4 What Types of HCPs and Incidental Take Permits are Possible? Single Applicant Programmatic Plans Programmatic Plans Detailed Considerations General Conservation Plans General Conservation Plans Detailed Considerations Umbrella Plans Combined Section 10 Plans Plan Variations and Severability 3.5 What Types of Activities Can be Covered in an HCP Otherwise Lawful Enhancement of Survival Permits Do Not Substitute for an HCP Accommodating State Requirements Section 7 Programmatic Consultations Research Permits No Temporary Authorization of Incidental Take 3.6 Going Fast by Starting Slow 3.7 Other Compliance Requirements Section 7 Intra-Service Consultation Listed Plants and Critical Habitat Migratory Birds and Eagles National Historic Preservation Act National Environmental Policy Act 3.8 Contracted Assistance ii 3.8.1 Facilitators HCP Consultants Preparation of NEPA document by Consultants Advice to Applicants on Selecting a Consultant 3.9 Planning Resources Available 3.10 Making and Documenting Decisions Chapter 4: Communicating and Coordinating 4.0 Effective Communication 4.1 Identify Stakeholders National Marine Fisheries Service (NMFS)/U.S. Fish and Wildlife Service (FWS) Other Federal Agencies Federally Recognized Tribes State Agencies Federally-Elected Officials 4.2 Establish Communication Objectives 4.3 Messaging and Channels Written Media Personal Contact with Stakeholders Public Comments Public Meetings Public Hearings Focus Groups Nominal Group Process Workshops and Forums Advisory Committees 4.4 Analyzing Stakeholder Input 4.5 Implementation and Monitoring 4.6 Effective Coordination Develop a Project Charter Develop a Work Breakdown Structure Establish an Organizational Structure Establish Management Procedures 4.7 Maintaining an Administrative Record General Guidelines Documents That Should Be Included in the Administrative Record Other Documents That May Be Included in the Administrative Record Documents that Generally Should Not Be Included in the Administrative Record iii PHASE 2: Developing the HCP and Environmental Compliance Documents Chapter 5: Land and Water Use Activities and Alternative Actions to the Taking 5.1 Activities Covered by the Incidental Take Permit and HCP Activities Resulting in Intentional Take Covered Activity Eligibility Covering All Activities Related to the Proposed Action 5.2 Types of Land and Water Use Activities Covered in HCPs 5.3 Analyzing the Components of Land and Water Use Activities 5.4 Excluding Certain Activities 5.5 Describing Covered Activities in the HCP 5.6 Alternative Actions to the Taking in the HCP 5.7 NEPA Alternatives Chapter 6: Identifying the Plan Area and Permit Area 6.1 Determining the Plan Area What is the Plan Area? Plan Area Size Considerations Plan Area Units 6.2 Determining the Permit Area 6.3 Analysis Areas HCP Analysis Areas Section 7 Action Area NEPA Analysis Areas NHPA Area of Potential Effect 6.4 Maps and Data Needs Maps and Analysis Metadata and Data Documentation Data Management and Sharing Plans Chapter 7: Identifying HCP Species and Information Needs 7.0 Introduction 7.1 Requirements and Information Needs and Standards for Covered Species 7.2 Selecting Covered Species 7.3 Addressing Non-listed Species in the HCP 7.4 Special Considerations for Some Species Groups Migratory Birds Bald and Golden Eagles Anadromous Fish Sea Turtles Marine Mammals Marine Mammal Protection Act: Incidental Harrasment Authorization iv Marine Mammal Protection Act: Letters of Authorization Plants State Protected Species HCPs and Enhancement of Survival Permits 7.5 Addressing Critical Habitat Effect of Critical Habitat on HCPs Critical Habitat Exclusions 7.6 Identifying the Role of the Plan Area in the Conservation of each Covered Species 7.7 Tools Climate Change Analysis Conceptual Models Decision Support Models Geographic Information System Habitat Equivalency Analysis Population Viability Analysis Reserve Design Optimization Models Resource Equivalency Analysis Species Distribution Models Spreadsheet Population Models 7.8 Data Sharing FOIA and Proprietary Information Chapter 8: Calculating Take from Land and Water Use Activities 8.1 Analysis of Take from Proposed Land and Water Use Activities 8.2 Determining Take Sources and Types of take Units of take Quantity of take Take that may be accounted for in another permitting process 8.3 Describe the Impact that Will result from Such Taking 8.4 Section 7 Tasks Chapter 9: Developing a Conservation and Mitigation Strategy 9.0 Introduction Considering Climate Change 9.1 Mitigation and the Maximum Extent Practicable How to Demonstrate Fully Offset Maximum Extent Practicable Defined The Burden of Proving Maximum Extent Practicable Demonstrating Maximum Extent Practicable Services Conduct an Independent Analysis of Practicability Service Demonstration of Maximum Extent Practicable Timing of Mitigation v 9.1.8 Mitigation and Stay ahead Provisions Developing the Conservation Strategy 9.2 Biological Goals What are Biological Goals? How to Develop Useful Goals Habitat-Based Goals vs. Species-Based Goals Responsibility for Developing Biological Goals and Objectives When to Develop Goals and Objectives Number of Biological Goals 9.3 Biological Objectives SMART Considering Climate Change in the Development of Goals and Objectives 9.4 Conservation Measures Avoidance Measures Minimization Measures Mitigation Measures Restoration of Degraded Habitat Land Preservation Creation of New Habitat Habitat Enhancement Threat Reduction or Elimination Translocation Repatriation Putting Goals, Objectives, and Measures together 9.5 Mitigation Implementation Permittee Implemented Mitigation Conservation Banks In-Lieu-Fee Mitigation Dealing with Uncertainty in Goals, Objectives, and Measures Determining Location for Mitigation Planning for Inflation Conservation Design Permittee Responsibilities: Meeting Goals and Objectives, or Specific Actions in the HCP 9.6 Providing for Changed Circumstances Changed Circumstances Unforeseen Circumstances Steps to Identify and Plan for Changed and Unforeseen Circumstances Differentiating Between a Changed and an Unforeseen Circumstance NEPA and Changed Circumstances Considering Climate Change in Changed Circumstances Timing of Changed Circumstances Information Needs for Changed and Unforseen Circumstances Determining Changed vs. Unforeseen Circumstances No Surprises and Changed Circumstances vi Chapter 10: Monitoring and Adaptive Management 10.0 Introduction 10.1 Monitoring Monitoring for Baseline Information Effectiveness Monitoring to Support Ongoing Conservation Decisions Development of Competing Hypotheses in Management Decisions Reporting Compliance with Permit Terms and Conditions 10.2 Steps to Developing a Monitoring Program Frame the Problem Design the Monitoring Implement the Conservation Program and Learn Changes to the Monitoring Program 10.3 Evaluation Dealing with Uncertainty in the Evaluation Process 10.4 Reporting and Compliance Evaluation ata Sharing Technology and Reporting Outputs from Monitoring and Evaluation in Annual Reports Evaluating HCP Compliance Field Office Preparation To Monitor Compliance of the HCP 10.5 Adaptive Management How to Incorporate Adaptive Management into an HCP Uncertainty in Management Decisions Accounting for uncertainty Adaptive Management Can Help Deal with Uncertainty in an HCP Chapter 11: Implementation Costs and Funding 11.0 Introduction 11.1 Implementation costs Estimating costs Estimating costs Preserve Management Costs Adjusting Funding Estimating HCP costs When a Mitigation Project Doesn t Perform as Proposed 11.2 Funding Sources 11.3 Funding Assurances Types of Plans and the Types of Assurances That are Frequently Used Categories of Funding Assurances How to Stay Ahead Provisions After Funding Assurances Types of Funding Assurances Short-term Assurances A. Cash in Escrow B. Casualty Insurance vii C. Letter of Credit D. Performance Bonds Long-term Assurances A. Annual Appropriations B. Endowments C. Legislatively Guaranteed Funding D. Certificate of Deposit E. Financial Test and Corporate Guarantee F. Irrevocable Trust G. Standby Trust H. Trust Fund I. Surety Bond Third Party Beneficiaries Third-Party Beneficiary Structure Collecting Funds Putting it All Together Chapter 12: Net Effects and Permit Duration 12.0 Introduction 12.1 Determine the Anticipated Type and Amount of Take 12.2 Describe the Impacts of the Taking 12.3 Describe the Expected Benefits of the Mitigation Program 12.4 Determine the Net Effects to Covered Species 12.5 Effects Analysis and Permit Issuance Criteria 12.6 Comparison of HCP Impact of Take Analysis with Section 7 Analysis of Effects Impacts to Covered Species Impacts to Critical Habitat 12.7 Comparison of HCP Impact of Take Analysis with NEPA Analysis of Effects 12.8 Comparison of NHPA Section 106 Process and NEPA Analysis of Effects Permit Duration Considerations Duration of Activities Covered Determining if There is Enough Available Information\ The Extent to Which the Conservation Plan Will Enhance the Habitat and Increase the Long-Term Survivability of Covered Species How Well the Monitoring and Adaptive Management Program Addresses Uncertainty Whether the Funding Strategy for the Conservation Program Is Adequate for the Proposed Duration of the Permit Permit Duration Decision Chapter 13: National Environmental Policy Act Compliance 13.1 Purpose and Need Template NEPA Purpose Statement for Incidental Take Permit Applications Template NEPA Need Statement for Incidental Take Permit Applications viii 13.2 Proposed Action Template Proposed Action Statement for Incidental Take Permit Applications 13.3 Scope and Alternatives Scope Alternatives 13.4 Levels of NEPA Review Categorical Exclusion Environmental Assessment Environmental Impact Statement 13.5 Preparation of NEPA Document by Consultants PHASE 3: Processing the Application, Making a Permitting Decision, and Issuing the Incidental Take Permit Chapter 14: Completing and Reviewing the Permit Application and NEPA Compliance Documents 14.0 Introduction 14.1 Documents Required to Complete the Application 14.2 Permit Application Forms, Application Fees, and Instructions FWS Application Form NMFS Applications Incomplete or Insufficient Application FWS Application Processing Fee 14.3 Field Office Review of the HCP ESA Requirements Issuance Criteria Disqualifying Factors Incomplete or Inadequate HCP Certification of Application by the Field Office that the HCP is Statutorily Complete 14.4 Field Office Review of the NEPA Analysis 14.5 Federal Register Notices Purpose Timing of the Notice Composition and Content of Federal Register Notices Format 14.6 Required Public Comment Periods 14.7 Review by Regional Office and Legal Counsel Regional Office Application Processing Review by Office of the Regional Solicitor and General Counsel 14.8 Getting Federal Register Notices Signed and Published FWS Procedures for Federal Register Notices NMFS Procedures for Federal Register Notices Headquarters 14.9 The Freedom of Information Act and the Privacy Act ix The Freedom of Information Act (5 U.S.C. 552) The Privacy Act of 1974 (5 U.S.C. 552a) Tracking Databases FWS Databases NMFS Databases Implementing Agreements Service Tasks During the Public Comment Period Compliance with Section Drafting the HCP-Specific Biological Opinion Format FWS Intra-Service Consultation NMFS Intra-Service Consultation Inter-Agency Consultation between the Services Integrating the Section 7 Compliance Process with Development of an HCP Integrating HCPs and Federal Actions Drafting the Findings and Recommendations Memo Drafting the NEPA Decision Document Chapter 15: Finalizing the HCP and Environmental Compliance Documents 15.1 Reviewing and Responding to Public Comments Comments on the HCP Comments on the NEPA Analysis No Comments Received Controversy Public Objection Scientific Controversy 15.2 Finalizing the HCP and NEPA Analysis FWS Final Review NMFS Final Review 15.3 Completing the Section 7 Biological and Conference Opinion Relationship Between the Incidental Take Permit and the Incidental Take Statement Conferencing on Potential ESA-Listed Species (Proposed, Candidate, or Unlisted Species) 15.4 Completion of National Historic Preservation Act (NHPA) Section 106 Requirements 15.5 NEPA Decision Documents Environmental Action Statement When to Prepare an Environmental Action Statement Content of the Environmental Action Statement Processing the Environmental Action Statement Making the Decision on an Environmental Assessment Finding of No Significant Impact Content of the Finding of No Significant Impact Making the Decision on an Environmental Impact Statement Record of Decision checklist x Content of the Record of Decision Joint Federal-State Processes Chapter 16: Making a Permit Decision 16.1 Documenting our Findings - Section 10 Findings and Recommendations Memorandum Introduction and Project Description Section 10(a)(2)(A) HCP Criteria Analysis and Finding Permit Issuance Criteria Analysis and Finding The taking will be incidental section 10(a)(2)(B)(i) The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking section 10(a)(2)(B)(ii) The Practicability Standard The applicant will ensure that adequate funding for the conservation plan and procedures to deal with unforeseen circumstances will be provided The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild The measures, if any, required under paragraph (b)(1)(iii)(d) of this section will be met He or she has received such other assurances as he or she may require that the plan will be implemented Disqualifying Factors 16.2 Writing the Permit Permit Terms and Conditions Reporting Requirements 16.3 Federal Register Notice of Availability - Final HCP, Final NEPA Analysis, and Draft or Final Decision Documents 16.4 Preparing and Processing the Signature Package Contents of the Signature Package Who Signs the Documents and Why FWS NMFS Timing When Documents are Signed Environmental Action Statement and Permit Finding of No Significant Impact and Permit Record of Decision and Permit 16.5 Implementing the HCP and Executing the NEPA Decision 16.6 Permit Issuance and Distribution of Copies of the Permit 16.7 Permit Denial, Review, and Appeal Procedures (Who Signs the Permit and Why) Permit Denial Request for Reconsideration of a Permit Denial Copies of Denials 16.8 SPITS, APPS, and ECOS xi PHASE 4: Implementing the HCP and Compliance Monitoring Chapter 17: Implementing the HCP and Making Changes if Necessary 17.1 Implementation and administration of the HCP 17.2 Compliance monitoring: Ensuring the funding, conservation commitments, mitigation and all other aspects of the HCP are being fulfilled; review of annual reports Incidental Take Permit Compliance Monitoring Biological effectiveness monitoring 17.3 Adaptive Management, Changed Circumstances, and No Surprises in Practice 17.4 Permit Amendments, Renewals, Transferals Changing Implementation Interpretations, Corrections, Clarifications, or Missing Details HCP and Incidental Take Permit Amendments Renewals Permit Transfers 17.5 When additional NEPA, Sec 7, NHPA compliance is needed 17.6 Permit Compliance Problems, Notifying Law Enforcement, Suspensions, and Revocations Permit Suspension and Revocation Summary of Suspension and Revocation Process Step by Step Summary of NMFS Suspension and Revocation Process 17.7 Permit Abandonment/Relinquishment Appendices Appendix A: National Historic Preservation Act Compliance and Habitat Conservation Plans for the U.S. Fish and Wildlife Service Appendix B: Special Considerations for Including Use of Pesticides in Habitat Conservation Plans Appendix C: Required Habitat Conservation Plan Elements and Recommended HCP Outline xii Executive Summary Drawing on over 30 years of experiences, remarkable successes, and valuable lessons learned, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (hereafter Services ) are pleased to share with you this revised Habitat Conservation Planning (HCP) Handbook (Handbook). The revised Handbook is the culmination of hard work and dedication by Services staff. It reflects our common commitment to actively advance the congressional findings, purpose, and policies of the Endangered Species Act (ESA), including providing a means to foster relationships with public and private partners; reduce conflicts between listed species and economic activities; and promote long-term conservation of listed species and the ecosystems on which they depend. Since the original HCP Handbook was published in 1996 (61 FR 63854), over 1,000 HCPs covering more than 46 million acres of land have been approved nationwide. During that time, the development and implementation of HCPs has evolved in response to advances in science and technology, changing public expectations, and feedback from our partners. For example, advances in computer technology and geospatial sciences have dramatically improved the way we view and understand species, habitat, and their connection to the larger landscape. In addition, the human dimension of the HCP process has become more complex with changes in public perceptions and expectations. Our experiences and input from our partners has highlighted concerns about the complexity, cost, and time commitment required to develop HCPs. We addressed these opportunities and concerns by establishing process standards and best practices, and also through new and refined policy guidance and procedures. These changes are meant to streamline the HCP process and increase the overall effectiveness of the program. The revised Handbook is designed to be more user-friendly and applicable in both print and web media. We reorganized the Handbook s contents to reflect each phase of the HCP process and include tools and templates to facilitate completion of each phase. We clarified important concepts like maximum extent practicable, adaptive management, and changed and unforeseen circumstances and refined our guidance on compliance with other Federal laws and regulations. We also established guidance for addressing climate change, effective communica
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