ESA Section 10 Incidental Take Permit (12-FD-d)
A developer who applies for an incidental take permit is required to submit a Habitat Conservation Plan (HCP). Among other things, the HCP specifies the impacts that are likely to result from the taking and the measures the permit applicant (i.e., the developer) will undertake to minimize and mitigate such impacts. 16 USC 1539(a)(2)(A).Incidental Take Permits associated with a HCP cover many activities. For renewable energy and transmission development projects, these activities include harming, harassment, pursuit, hunting, shooting, wounding, killing, trapping, capturing, or collecting of any wildlife within the United States. Incidental take permits only apply for non-Federal activities that will result in take of treated or endangered species.
ESA Section 10 Incidental Take Permit Process
12-FD-d.1 - Coordinate with Appropriate Endangered Species Office
Initially, where a proposed project has the potential to affect threatened or endangered species, developers should consult with the appropriate endangered species office. For onshore renewable energy and transmission development projects, the appropriate agency will likely be the USFWS. Thus, developers should consult with the nearest USFWS field office. HCP Fact Sheet.
12-FD-d.2 - Initiate Development of Habitat Conservation Plan (HCP)
While the developer is responsible for creating a comprehensive HCP, the USFWS will provide technical assistance and advice during the HCP development phase. Generally, developers should include all federally listed wildlife species likely to be incidentally taken during the life of the project or permit. In addition, there are advantages for developers that address unlisted species (proposed and candidate species) as doing so can protect the developer from further delays where species that were not listed at the time the original HCP was approved subsequently become listed. Developers should also include listed plant species in their HCP. HCP Handbook - Chapter 3. While Section 9 of the ESA does not prohibit the taking of listed plants, Section 7 consultation (on a Section 10 permit) requires that the permit does not jeopardize the existence of a listed plant species. 16 USC 1538; 16 USC 1536(a)(2).
12-FD-d.3 - Consult/Negotiate with USFWS to Determine Scope and Complexity of HCP
The process for developing an adequate HCP is the most time-consuming phase of the Section 10 process. Developers should engage with the USFWS as much as practicable in order to determine how much information developers need include in the HCP, based in part on the complexity of the specific issues associated with the land and species in question. HCP Handbook - Chapter 3.
12-FD-d.4 - Form 3-200 Application; Copies of Approvals or Status of Applications and Final HCP
The application is available on the USFWS website here: Form 3-200 Permit Application. The application fee is $25 and requires information that identifies the:
- Location of activities,
- Underlying activity that may result in take, and
- Species sought to be covered by the permit.
In addition, the application must include a complete HCP.
12-FD-d.5 to 12-FD-d.6 - Review Application Materials for Completeness
The USFWS administrator will only review substantively complete applications. The USFWS will notify the developer if the application is substantively incomplete and allow for the resubmittal of necessary information. HCP Handbook - Chapter 6.
12-FD-d.7 - Is the HCP Statutorily Complete?
USFWS determines whether the HCP meets statutory issuance criteria under section 10(a)(2)(B) of the ESA. In order to pass statutory muster the HCP must identify:
- The impact which will likely result from such taking;
- What steps the developer will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;
- What alternative actions to such taking the developer considered and the reasons why such alternatives are not being utilized; and
- Such other measures that USFWS may require as being necessary or appropriate for purposes of the plan.
12-FD-d.8 - Complete Internal Section 7 ESA Consultation
Whereas a development project with a federal nexus (that may result in the take of listed species) requires the developer to go through Section 7 ESA Consultation, here (for development with no federal nexus, Incidental Take Permit) the USFWS will conduct Section 7 Consultation internally as part of the Section 10 process. Although the provisions of ESA section 7 and section 10 are similar, section 7 and its regulations introduce several considerations into the HCP process that are not explicitly required by section 10. Specifically, indirect effects, effects on federally listed plants, and effects on critical habitat. HCP Handbook - Chapter 1. The USFWS effectively completes an internal review of its own actions to ensure compliance with ESA Section 7.
12-FD-d.9 - Based on the HCP, is an EA or EIS Necessary?
The USFWS recognizes a special category of HCPs with relatively minor or negligible impacts: “Low-effect HCPs.” An HCP qualifies as low-effect if it will only result in:
- Minor or negligible effects on federally listed, proposed, or candidate species and their habitats covered under the HCP; and
- Minor or negligible effects on other environmental values or resources.
Low-effect HCPs have simplified application processing requirements, mainly because the activity is categorically excluded from NEPA review. As part of the USFWS’s internal application screening process, USFWS will complete a Low-effect HCP Screening Form in applicable cases.
Where the USFWS makes a determination of low-effect, they will issue an Environmental Action Memorandum: a brief document that serves as the USFWS’s record of NEPA compliance for categorically excluded actions by explaining the reasons the USFWS concluded that there will be no individual or cumulative significant effects on the environment.
Most HCPs do not qualify as “low-effect.” Where an HCP does not qualify as “low-effect” either an Environmental Assessment (EA) or Environmental Impact Statement (EIS) must be prepared. Most HCPs require an EA and some HCPs require an EIS. HCP Handbook - Chapter 5.
12-FD-d.10 - Publish Notice of Application in the Federal Register; Open for Public Comment
Regardless of whether the HCP is low-effect or not, the USFWS must always publish notice of a Section 10 Application in the Federal Register and allow 30 days for public comment. 16 USC 1539(c); HCP Handbook - Chapter 5
12-FD-d.11 to 12-FD-d.12 - Incidental Take Permit
If USFWS determines, after considering public comment, that the HCP is statutorily complete and that permit issuance criteria have been satisfied, it must issue the permit. 16 USC 1539(a)(2)(B)
Upon issuance of the Section 10 Permit, the USFWS must publish notice in the Federal Register. 16 USC 1539(d).
12-FD-d.13 - Will the HCP Likely Have a Significant Impact on the Human Environment?
During the application processing phase, after determining that a HCP does not qualify as “low-effect,” the USFWS will determine whether an EA or EIS is required. HCPs that are likely to have a significant impact on the human environment require an EIS. Otherwise, an EA is required. HCP Handbook - Chapter 5.
12-FD-d.14 - Prepare Draft Environmental Assessment
The USFWS is ultimately responsible for NEPA compliance and must ensure the draft EA is prepared. However, in practice developers will assist in preparing the EA. In some cases developers may be best served (from a timing perspective) to prepare a joint HCP/EA from the outset. An example of a joint HCP/EA is provided: Integrated HCP/EA Example
12-FD-d.15 - Publish Notice of Application and EA in the Federal Register; Open for Public Comment
As explained in 12-FD-d.7 above, the USFWS must publish notice of a Section 10 Application and allow for public comment. In addition, the USFWS must publish notice of the EA and allow for public comment. Generally, the USFWS publishes both notices concurrently as the comment period for both notices is 30 days. 16 USC 1539(c); HCP Handbook - Chapter 5.
12-FD-d.16 - Will the HCP Have a Significant Impact on the Human Environment?
After the 30 day comment period the USFWS will either make a Finding of No Significant Impact (FONSI) or determine that an EIS is required. HCP Handbook - Chapter 5.
12-FD-d.17 to 12-FD-d.18 - Incidental Take Permit
If the NEPA determination is a FONSI, the USFWS will issue the Incidental Take Permit and publish notice of issuance in the Federal Register as described in 12-FD-d.11 to 12-FD-d.12 above. HCP Handbook - Chapter 5.
12-FD-d.19 - Prepare Draft Environmental Impact Statement
For large-scale HCPs and/or HCPs that have a significant impact on one or more protected species, an EIS may be necessary. The USFWS is still ultimately responsible for NEPA compliance, however, the developer may still assist in preparing the required analyses and documentation. Note that for larger scale HCPs that require an EIS, the USFWS may also require an Implementing Agreement that provides more detail regarding how the HCP will be carried out over time and further specifies the responsibilities of all parties involved. A template Implementing Agreement is provided for reference: Template Implementing Agreement.
12-FD-d.20 - Publish Notice of Application and EIS in the Federal Register; Open for Public Comment
The USFWS must publish notice of a Section 10 Application and allow for public comment. In addition, the USFWS must publish notice of the EIS and allow for public comment. Generally, the USFWS publishes both notices concurrently. Note that the comment period for an EIS is 45 days, thus extending 15 days after the comment period for an EA/HCP. 16 USC 1539(c); HCP Handbook Chapter - 5.
12-FD-d.21 - Prepare Final EIS
Based on any comments received during the 45 day period, the USFWS will modify the draft EIS and prepare a final EIS.
12-FD-d.22 - Publish Notice of Availability of Final EIS in the Federal Register; Begin Waiting Period
As an additional step in the process unique to HCPs requiring an EIS, the USFWS must publish a notice of availability of the final EIS in the Federal Register and wait approximately 30 days. 550 FW 3 Documenting and Implementing Decisions.
12-FD-d.23 - Record of Decision
After the 30 day waiting period, the USFWS will publish a Record of Decision that acts as a concise public record of the NEPA decision, including any conditions adopted for monitoring or enforcement. 550 FW 3 Documenting and Implementing Decisions.
12-FD-d.24 to 12-FD-d.25 - Incidental Take Permit
After completing the NEPA process, the USFWS will issue the Incidental Take Permit and publish notice of issuance in the Federal Register as described in 12-FD-d.12 to 12-FD-d.13 above.
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