Conservation Sonoma

An HCP is required as part of the application for a Section 10(a)(1)(B) incidental take permit (ITP) under the 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. The County of Sonoma (County) is currently anticipating covering species regulated by both USFWS and NMFS in 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.

An NCCP is the California state counterpart to the federal HCP. It provides a means for complying with the NCCP Act and securing incidental take authorization under California Fish & Game Code Section 2835. A primary objective of an NCCP is to conserve natural communities at the ecosystem scale while accommodating compatible land uses. To be approved by the California Department of Fish and Wildlife (CDFW), an NCCP must provide for the conservation of species and protection and management of natural communities in perpetuity within the area covered by permits. NCCPs are broader than HCPs because the NCCP Act requires that conservation measures improve the overall condition of a species, whereas an HCP typically only requires avoidance of a net adverse impact on a species. And while an HCP can be applied at a project-by-project or regional scale, an NCCP must be applied at the regional scale to promote the long-term recovery of species, protection of habitat and natural communities, and diversity of species at the landscape scale. Thus, the NCCP requirements go “above and beyond” the federal or state mitigation requirements.

Per April 26, 2018, USFWS internal guidance, it is up to the applicant to determine if they want to apply for an ITP as the 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.

Undertaking development of an HCP or NCCP is a voluntary action initiated by the applicant (in this case, the County is the applicant and may be joined by additional co-applicants from amongst partners cooperatively engaged in plan development). While USFWS, NMFS, and CDFW personnel provide detailed guidance and technical assistance throughout the process—and must ultimately approve the HCP/NCCP—the development of an HCP/NCCP is driven by the applicant. The NCCP Act requires a Planning Agreement between CDFW and the applicant, which is a basic and preliminary outline of the conservation planning effort, including processes for public participation, coordination with federal agencies regarding ESA requirements, and independent scientific input and analysis to assist with development of a scientifically based plan. CDFW requires completion of the Planning Agreement as one of the first steps in undertaking NCCP development. The federal wildlife agencies, USFWS and NMFS, evaluate the HCP/NCCP for compliance with the National Environmental Policy Act (NEPA) prior to ITP issuance. USFWS and NMFS will make an internal determination regarding which of the agencies will lead the NEPA process, although each agency will conduct an independent NEPA analysis prior to issuance of their respective ITPs. Lead agency status is typically determined by the magnitude of the agency’s involvement (e.g., number of listed species under their jurisdiction proposed for coverage in the plan). The issuance of a permit under the NCCP Act, as well as the adoption of the HCP/NCCP by a local or state jurisdiction permittee, requires compliance with the California Environmental Quality Act (CEQA). Draft CEQA and NEPA documents are typically produced concurrent with completion of the draft HCP/NCCP. Once the regulatory agencies review and approve the draft HCP/NCCP, the draft HCP/NCCP 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 for the Sonoma County HCP/NCCP) is responsible for responding to comments on the NEPA document. If the HCP/NCCP requires revisions based on the public review process, such revisions are made to the HCP/NCCP and to the CEQA and NEPA documents. A final HCP/NCCP and CEQA and NEPA document 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 prepare their respective ITPs and write a biological opinion under Section 7 of the ESA.

Local agencies often choose to prepare a joint HCP/NCCP because the requirements of both documents are similar and because coverage is desired for both federally and state-listed species.

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.” Take of any threatened or endangered species is defined by the California Endangered Species Act (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).

Covered activities are those activities for which take authorization will be provided by USFWS, NMFS, and CDFW for the species addressed in the HCP/NCCP (called covered 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 or NMFS have 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 Section 2068).

Covered species are those species for which incidental take authorization is provided by an HCP/NCCP 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/NCCP 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 or state permitting for the newly listed species would be required.

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 HCP permit must not jeopardize any listed species, including plants. In addition, an NCCP provides for the protection of plants and their habitats in the same way it does for animals. Therefore, listed plants that are likely to be affected by the action receiving take coverage under an HCP/NCCP are included as a covered species.

Mitigation reduces or ameliorates potential adverse effects of a proposed activity on covered species. Mitigation measures address specific conservation needs of the covered species, are feasible, and enforceable. Mitigation measures may take many forms, such as preservation of existing habitat, enhancement or restoration of degraded or a 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 avoids, minimizes, and mitigates impacts to the maximum extent practicable with the goal of fully offsetting the impacts to covered species. 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 taking. The NCCP Act requires that conservation measures foster collaboration among public agencies and private interests, effectively address cumulative impacts, conserve unfragmented habitats, and support multispecies and multihabitat management (Fish and Game Code Section 2821). The NCCP Act also includes a requirement to maintain the proportionality between take and mitigation to ensure that conservation is achieved at the same or better rate than the loss of habitat.

The elements of an HCP/NCCP 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 and/or under the NCCP Act.

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 an NCCP Act permit, CDFW must comply with CEQA. The lead agency for the CEQA document for an HCP/NCCP is often the HCP/NCCP applicant. 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).

Native American representatives include individuals representing federally and non-federally recognized Native American tribes whose traditional territory encompasses or intersects with the Sonoma County HCP/NCCP area. Native American tribes must be consulted during the environmental review process under both federal and state regulations and may have cultural, natural, and traditional resources or assets that could be impacted by the outcome of the Sonoma County HCP/NCCP. Therefore, support from these representatives is often needed to implement conservation goals and objectives. On the federal side, Section 106 of the National Historic Preservation Act both requires tribal consultation and largely drives the consultation process when a federal agency project may affect historic properties that are either located on Native American tribal lands, or when any Native American tribe attaches religious or cultural significance to the historic property. In addition, the regulations implementing NEPA require tribal consultation and involvement during the NEPA process. One requirement is to preserve important historic, cultural, and natural aspects of our national heritage, and USFWS and NMFS have a responsibility to engage in meaningful consultation with tribes with respect to cultural resources-related laws and executive orders, such as Executive Order 13175. It is the goal of USFWS and NMFS to include federally recognized tribes in their decision-making process, as specified in their Tribal Consultation Handbook. Furthermore, tribes are sovereign governments and thus more than just a member of the public, which gives them a unique status that entitles them to a government-to-government relationship with the US government.

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 run these two comment periods concurrently. For the NCCP, the public has a chance to comment on the draft Planning Agreement before it has been signed. The NCCP Act also includes extensive requirements for public participation during plan development.