Frequently Asked Questions
Q: What are the basic applicable provisions of the Endangered
Species Act (ESA)?
A: The ESA requires the Secretary of the Interior, who acts through the U.S. Fish and Wildlife Service (Service), to make various decisions about the status and protection of animal and plant species. The Service administers the following core programs in that regard:
- Section 4 authorizes the Service to identify “endangered” and “threatened” species, known as the “listing” function, and then to designate “critical habitat” and develop “recovery plans” for the species.
- Section 7 requires all federal agencies to ensure that actions they carry out, fund, or authorize do not “jeopardize” the continued existence of listed species or “adversely modify” their critical habitat.
- Section 9 requires that all persons, including all private and public entities subject to federal jurisdiction, avoid committing “take” of listed species of fish and wildlife. Take is defined by Service regulations to include habitat modification that actually kills or injures a listed species.
- Sections 7 (for federal actions) and 10 (for actions not subject to Section 7) establish a procedure and criteria for the Service to approve “incidental take” of listed species.
The central prohibitory ESA provision is section 9, which prohibits the “take” of a listed species. By regulation, the Service has defined take to include habitat destruction or modification that actually results in death or injury to a member of the species. Private landowners and state or local governments planning to conduct activities on their land that might incidentally “take” a species listed as endangered or threatened under the ESA may obtain an incidental take permit (also commonly referred to as a “10(a) permit”) from the Service prior to conducting such activities. To obtain a permit, the applicant must develop a habitat conservation plan (HCP) that is designed to minimize and mitigate the impacts of the taking sought to be authorized. The HCP process allows activities to proceed while promoting the conservation of listed species.
Q: What is a Regional Habitat Conservation Plan?
A:An HCP routinely involves one individual or entity as an applicant who develops the HCP to accompany an incidental take permit to cover actions for a single project in a discrete area. Although the ESA does not specifically mention Regional Habitat Conservation Plans (RHCP), the Endangered Species Habitat Conservation Planning Handbook issued by the Service in November 1996 as supplemented by the Addendum to HCP Handbook dated June 2000 does discuss them. In contrast to individual HCPs, an RHCP often covers a larger geographic area, numerous landowners, and multiple species. Local or regional authorities or entities are often the applicant/permittee, and often may be relied upon to implement the mitigation plan under an RHCP. The HCP Handbook states as one of its “guiding principles” that the Service encourages state and local governments and private landowners to undertake regional and multi-species HCPs.
Q: What are the benefits to a Regional Habitat Conservation Plan?
A: The HCP Handbook notes that the cumulative total HCP processing requirements are greater when regional or area-wide activities are permitted through individual HCPs and related permits, rather than comprehensively under an RHCP. The benefits of an RHCP include the following:
- Maximizing flexibility and available options in developing mitigation programs.
- Reducing the economic and logistic burden on individual landowners by distributing their impacts.
- Reducing uncoordinated decision making.
- Providing the permittee with long-term planning assurances and increasing the number of species for which such assurances can be given.
- Bringing a broad range of activities under the permit’s legal protection.
- Reducing the regulatory burden of ESA compliance for all affected participants.
Q: What other requirements govern development of an RHCP?
A: Development of an HCP is a complex legal and biological process involving multiple provisions of federal and state law. In addition, the Service has issued extensive guidance concerning HCP development. The key legal requirements for the development of an HCP can be divided into four basic categories:
- ESA requirements directly relating to HCPs;
- Intra-agency consultation requirements under ESA section 7(a)(2);
- Review of HCP impacts and alternatives as a major federal action under the National Environmental Policy Act; and
- State law requirements set forth in Part 83 of the Texas Parks and Wildlife Code (§§ 83.011-83.020).
Each of these four areas includes procedural as well as substantive criteria that will be followed in developing and implementing the Comal County RHCP.
Q: How is development of the RHCP funded?
A: In September 2006, Comal County was awarded a $612,852.00 federal grant from the Service to develop and complete the Comal County RHCP, Environmental Impact Statement (EIS), and section 10(a) permit application. The federal grant requires 25% local match, which can be provided using in-kind services, such as by using County staff resources.
Q: What are “covered species”?
A: Those species listed on the permit, and unlisted species that have been adequately addressed in an HCP as though they were listed, and are therefore included on the permit or, alternately, for which assurances are provided to the permittee that such species will be added to the permit if listed under certain circumstances. “Covered species” are subject to the assurances of the “No Surprises” rule.
Q: What species are anticipated to be “covered species” under the
Comal County RHCP?
A: Currently, seven federally listed endangered species occur in Comal County, Texas. The listed endangered species include: two aquatic insects, the Comal Springs Dryopid Beetle (Stygoparnus comalensis) and the Comal Springs Riffle Beetle (Heterelmis comalensis); one crustacean, Peck’s Cave Amphipod (Stygobromus pecki); one fish, the Fountain Darter (Etheostoma fonticola); and three birds, the golden-cheeked warbler (Dendroica chrysoparia), black-capped vireo (Vireo atricapilla), and whooping crane (Grus americana). The Comal County RHCP will seek to include the golden-cheeked warbler and black-capped vireo as covered species. The other listed species, while not covered under the plan, will likely benefit from the conservation actions established for the RHCP.
It is not anticipated that the County will require incidental take authorization under this RHCP for the four aquatic, or “aquifer” species, Peck's cave amphipod (Stygobromus pecki), Comal Springs riffle beetle (Heterelmis comalensis), Comal Springs dryopid beetle (Stygoparnus comalensis), and Fountain darter (Etheostoma fonticola) The on-going Recovery Implementation Program for Edwards Aquifer Species will eventually establish “take” and mitigation criteria for the listed aquifer species and those species need not be considered as covered species in the Comal County RHCP.
Q: What are No Surprise assurances?
A: Under the No Surprises rule, the Service provides assurances to permittees that they will not be required to commit additional lands, waters, funds, or restrictions on lands beyond those contemplated at the time the permit was issued to mitigate the effects of unforeseen circumstances on threatened or endangered species. These assurances will be applicable to those species (listed and non-listed) found to be “adequately covered” under the HCP. “Adequately covered” refers to any species addressed in an HCP, provided that the HCP satisfied the permit issuance criteria under section 10(a)(2)(B) of the ESA as to that species.
For more information on HCP Frequently Asked Questions developed by the Service, please click here.