Central Oregon Habitat Conservation Plan

“The Regulator’s Perspective”

Overview

• Brief Overview of ESA • HCP Structure and Process• Upper Deschutes Basin HCP

Our mission is “to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people.”

The purposes of the ESA are grand:

“to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved”

“to provide a program for the conservation of such endangered species and threatened species”

The Endangered Species Act• Section 2: Findings and Purposes• Section 3: Definitions• Section 4: Listing, Critical Habitat Designation,

Recovery, Monitoring• Section 5: Land Acquisition• Section 6: Financial Assistance to States and Territories• Section 7: The Role of Federal Agencies• Section 8: International Cooperation• Section 8A: Convention Implementation• Section 9: Unlawful Activities• Section 10: Exceptions, including Permits• Section 11: Penalties and Enforcement

Gives joint authority to Fish and Wildlife Service and NOAA–Fisheries

The ESA requires the following actions:

1. Status reviews of at-risk species

2. Identify & list species and designate critical habitat3. Apply “take” protective regulations for threatened

species: Section 4(d)4. Regulate activities that would “take” species5. Consult on federal actions: Section 7 consultations6. Ensure that Federal actions do not jeopardize the

species7. Issue “incidental take” permits:(Section10 e.g. HCP)8. Plan and implement recovery plans 9. Delist

Habitat Conservation Plans Section 10(a)(1)(B)

• Provides a mechanism for authorizing take incidental to otherwise lawful non-federal activities.

• Ensures that the conservation needs of listed species are considered when non-Federal actions are likely to result in take

Contents of an HCP

• Assessment of impacts• Measures permittee will take• Funding to implement such measures• Procedures to deal with changed

circumstances• Alternative actions• Additional measures that FWS may

require

HCP ProcessApplicant is responsible for:• Development of the HCP• Complete Application Package

– Application form, HCP, Implementation agreement, Draft NEPA document

• FWS Responsibilities– Technical assistance, NEPA compliance,

prepare biological opinion, prepare findings and incidental take permit.

HCP Planning Assistance, Recovery & Land Acquisition Grants:• Financial assistance for habitat conservation planning

to support baseline surveys and inventories, document preparation, outreach, and similar planning activities

• Funding is provided to States to acquire land or water, or interests therein from willing sellers

• Used to support actions in approved recovery plans

Regulatory Assurance

• No surprises regulation

• If unforeseen circumstances arise the FWS will not require additional commitments.

ESA Issuance CriteriaSection 10(a)(2)(B)

• The taking will be incidental

• The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking

• The applicant will ensure that adequate funding for the plan will be provided

• The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild

• Other measures required by the Secretary

Other Laws to Consider• National Environmental

Policy Act (NEPA)• National Historic

Preservation Act (NHPA)• Administrative

Procedures Act (APA)• Federal Advisory

Committee Act (FACA)• Freedom of Information

Act (FOIA)• Privacy Act• Coastal Zone

Management Act (CZMA)

• Migratory Bird Treaty Act (MBTA)

• Bald Eagle and Golden Eagle Protection Act (BGEPA)

• Marine Mammal Protection Act (MMPA)

• Clean Water Act (CWA)

• Marine Sanctuaries Act

• Magnuson-Stevens Fishery Conservation and Management Act

Secretarial Order on Native Americans and the Endangered Species Act #3206

– 1997 (Tribal Secretarial Order)

- Clarifies responsibilities of Federal agencies for actions taken under the ESA that may affect Indian lands, tribal trust resources, or the exercise of American Indian tribal rights.

Section 10 - Five Point Policy

• Biological goals and objectives

• Monitoring

• Adaptive management

• Permit duration

• Public participation

Five Point Policy (cont.)

Biological goals and objectives:• Defines the expected biological outcome for

each species, ecosystem or habitat;

• Consistent with recovery;

• Promotes effective monitoring.• Rationale for mitigation strategies;

• Should be proportionate to the expected impacts of the proposed action.

Five Point Policy

Monitoring:• Required by regulation

• Compliance monitoring

• Effects monitoring

• Effectiveness monitoring

Five Point Policy (cont.)

Adaptive Management:

• Method for addressing uncertainty;

• HCP outlines agreed-upon responses to change;

• Involves monitoring and feedback to biological goals and objectives.

Five Point Policy (cont.)

Permit duration:

• Duration of proposed activities

• Time to implement and achieve benefits to species (biological goals & objectives)

• Biological uncertainty

Section 10(j) Experimental Population

• FWS/NMFS can designate reintroduced populations established outside the species’ current range but within its historic range as experimental populations

• Non-essential experimental population are deemed not essential to the continued existence of the species.

10(j) Experimental Population Designation

• Identify the experimental population• Determine if the population is essential to

the continued existence of the species• Provide geographic boundaries• Provide take prohibitions as necessary and

appropriate

Effect of 10(j) Designation

• If Secretary determines that the experimental population is non-essential, then:

• May provide limits on take liability• Treated as proposed for listing• Section 7(a)(2) consultation not required• Section 7(a)(4) conference required• No critical habitat designation

Scope and Scale of HCP

Information Needs

• Description of proposed covered activities and permit area

• Information on species occurrence and/or habitat (based on surveys, vegetation map, or habitat model)

• Information on species stressors, threats, and conservation needs

Permit Area(covered area)

• Area where covered activities will occur

• Mitigation/conservation area(s)

• Geographic area(s) of

“direct control” by applicant

Determining Covered Species

• Understand what information is needed to develop the covered species list

• Understand what species can and should be included as covered species

• Understand requirements for issuing a permit for a covered species

Considerations for Proposed Covered Species List

• What is cost and time needed to collect biological information?

• What is cost to implement minimization, mitigation, and monitoring measures versus the risk of take?

• What is the duration of the covered activities and the permit?

HCPs are:

•planning documents required as part of the incidental take permit process

HCPs are also •an effective tool providing for multiple partnerships with Federal and non-Federal parties to conserve listed and unlisted species and resolve resource issues

Thank you

Contact Information: Nancy Gilbert541 383-7146

Nancy_gilbert@fws.gov