Podcast

The Basics of Obtaining an Incidental Take Permit under the Endangered Species Act
02/25/2021
Podcast Transcript

Announcer:

Welcome to CEC Explains, your deep dive into fascinating subjects from the worlds of engineering and the environment, brought to you by Civil and Environmental Consultants. And now, from our CEC studios around the nation, this is CEC Explains.

 

Leo:

The subject of our podcast today is obtaining an incidental take permit under the Endangered Species Act, understanding the basics. So today we’re going to explore some of the basic questions that project proponents often ask concerning an incidental take permits — their value, what are some of the challenges of obtaining them and what the US Fish and Wildlife Service is doing to make the process easier.

 

Hi, I’m Leo Lentsch in one capacity or another, I’ve been involved in implementing the Endangered Species Act since 1980. The majority of my experience includes assisting a variety of entities obtain incidental take permits. I’ve been involved in over 30, large-scale, complex, and often contentious ESA compliance projects. I’ve learned many practical lessons from that experience. And with this in mind, it is my pleasure to introduce our co-host, Trish Adams. Trish is the National Habitat Conservation Planning Coordinator for the US Fish and Wildlife Service, and works out of their headquarters office in Washington, D.C.

 

Trish:

Thank you very much, Leo. Yeah, I’ve been with the Fish and Wildlife service for 22 years with the last eight years in our headquarters office, coordinating the National Habitat Conservation Planning Program under section 10 of the ESA. And prior to headquarters, I was located in the South Florida Ecological Services office in Vero Beach, Florida, assigned as the lead biologist on large, and sounds like you and I, Leo, have something in common with often controversial projects. Ours were mainly related to federal coastal construction projects and they were handled under the consultation under section seven of the ESA and Fish and Wildlife Coordination Act before becoming the South Florida habitat Conservation Planning Coordinator.

 

Leo:

Thanks, Trish. With that, we’ll start with a few series of questions. We often get asked, what is the single most important value of HCPs for a project proponent?

 

Trish:

Sure. what I hear the most is the main reason why applicants often choose to seek an incidental take permit and develop an HCP is because HCPs offer the opportunity to plan for the future with regulatory certainty and a streamlined regulatory process. So those assurances are extremely important to applicants, we hear. This advanced planning provides significant cost savings in time alone versus seeking permits on a project-by-project basis. HCPs also provide a value for the Fish and Wildlife Service, because it gives us an opportunity to help guide and shape where important economic activities occur in balance with listed species conservation.

 

Leo:

So Trish, what industries tend to benefit the most from an obtaining incidental take permit?

 

Trish:

I would say any industry that routinely has operations, for instance, like either new projects or ongoing operation and maintenance projects in areas where occupied listed species occur in their habitat. And, if they know that on the radar, there may be candidate species that are in their area and could be listed in the near future. If that could be an advantage for them to go ahead and seek an incidental take permit, develop that HCP that will allow them to then include those candidates’ species and listed species so that it won’t have a disruption in their operations. And taking the time to develop a comprehensive plan will streamline the process and provide those regulatory assurances that we’ve been talking about. And this leads to efficient project planning. So, everyone will know right upfront what’s expected. There’s not that project by project negotiation where that uncertainty of, well, how long has that consultation going to occur? When do I need to begin my construction activities to avoid impacts? You’ll know everything upfront and that just provides for much better project planning and budgeting, is what we hear.

 

Leo:

That’s great. That’s great. Those are really great points. We also get asked a fair bit, from local communities, can they benefit from an HCP development?

 

Trish:

Oh yeah, absolutely. They can provide a benefit to their constituents within their community. So, either within a state or within a County, and this best benefit is often seen through the development of the county-wide statewide or regional HCPs. And again, it’s often in terms of those long-term cost savings and tax dollars savings as well, because it increases the ability of those communities to get their projects on the ground faster. And so, this could include a county permitting development activities for a single-family residence or commercial construction, as well as their own infrastructure projects. Having those in place and having those analyses done comprehensively over a long term provides that certainty into the future and provides that expectation of what’s going to be required. And, for instance, I think the Western Riverside Multiple Species HCP in California is a great example of that.

 

They conducted several studies on the effectiveness of their HCP, and they found that within the HCP in place, the completion of transportation projects had been accelerated by one to five years. That translated into an overall cost savings of $312 million. So that’s pretty significant and that’s just in time. And that doesn’t even take into account the mitigation areas, and those green spaces, and the value that that provides to communities in the sense of providing places where folks can recreate. And also, the aesthetic value of these green spaces within the community. And oftentimes counties will see an increase in land values around their preserves. And these are often highly sought after real estate that do increase those property values.

 

Leo:

So, you’ve mentioned assurances a little bit through our conversation. Could you highlight what types of assurances are provided with an incidental take permit?

 

Trish:

First, the incidental take permit in of itself ensures that the permittee will be in compliance with the Endangered Species Act. So that eliminates potential conflicts with the law and reduces the potential for third-party lawsuits as well. And, but most importantly, the permittee will receive ‘no surprises’ assurances from the Fish and Wildlife Service. And simply that means, once we issue the permit, we are bound to the deal that we made in those permit conditions. So unless there’s a mutually agreeable decision to change, say something related to the mitigation or minimization measures, then the service can’t come in, because you’re a protected under ‘no surprises’ just to randomly increase monitoring costs or excuse me, mitigation costs or, or impose additional minimization measures on that permittee. So that alone provides that regulatory assurances and provides that long-term planning opportunity and good, efficient project management and project planning on the side of, not only project proponents, but if it’s within an area where say a county or a state, then even the residents will have a full understanding of what’s expected of them and what their costs are. And so that’s immeasurable.

 

Leo:

Having that, ‘no surprises,’ a deal is a deal, is really important for those communities.

 

Trish:

And that, in my opinion, is one of the key successes of the HCP program. And it’s, it’s not something that you get in a consultation under section seven, for instance. So, if you’re going in for and getting a biological opinion.

 

Leo:

So, one other question is, do project proponents ever initiate developing an HCP when other ESA compliance pathways are available?

 

Trish:

Yes, actually they do. And just for that exact reason that we just talked about, that these project proponents are looking for those assurances and the ‘no surprises,’ which under those other ESA avenues, like I mentioned, aren’t, aren’t available. So, for long-term planning it, it may be in their best interest to seek an incidental take permit and develop an HCP and include those other federal agencies as cooperators in developing their HCP. And what this does is having those other federal agencies involved while the ITP, our ITP won’t necessarily address or permit those activities under other federal laws, but having those federal agencies in, in as a cooperator on the HCP will allow us all to get on the same page. And the federal agency will have an opportunity to chime in and direct proponents in a way to ensure that when they do come in for their consultation or a permit, like say from BLM or the Army Corps of Engineers, then they have the measures that are going to be needed to comply with those laws will already be built into the HCP. And so, doing all that advanced planning, we’ll eliminate that project by project negotiation uncertainty that goes along with that. So again, having, having the ability to plan into the future to meet your needs is really one of the key successes, I think, and what makes the HCP program really great.

 

Leo:

I think your example demonstrates, you know, that streamlining process for using incidental take permits. So that’s a great example.

 

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Leo:

Trish, you mentioned in your responses to some of our earlier questions, you know, developing an HCP, from your perspective, what’s the most challenging aspect of developing one of those instruments?

 

Trish:

Well, you know, it really depends on a number of factors. I mean, it’s the diversity of the HCP program and the flexibility that it affords provides a challenge right from the beginning, because we encourage applicants to develop HCPs, to meet their needs as long as they abide by the certain sideboards that we have in our regulations, policy and guidance. So, it really depends on a number of factors like, for instance, the complexity of the proposed activities, the species that are expected to be impacted and how at risk they are, the available mitigation options — and of course there may be potential controversy related to the project. But, you know, really like most things in life, I found, that really sometimes it’s the people that are involved that can really make a difference and make or break an HCP.

 

Trish:

So, it’s good to have the right people at the table on both sides from the Fish and Wildlife Service, as well as from the applicant’s perspective as well. So, in all the challenges of an HCP can be overcome when you have a committed team on both sides. And we honestly view our interactions with our applicants as a partnership because we cannot recover listed species — and that is our main charge is to recover listed species — without the help of private landowners and industries, because most of the species occur in areas where it, where it’s private property, or where some of these activities are taking place. So, in my view, this is a partnership. It’s, even though it is a regulatory program, but at the same time, I really, truly view it as a partnership. And so, when you have those commitments on both sides to do what is needed for the applicant to move forward with their lawful activities, as well as for us, we need to make sure that we’re meeting the needs, as it relates to the listed species.

 

Leo:

Trish, that’s certainly been my experience. And here at CEC, we really emphasize the importance of interpersonal relationships, how that helps move projects forward.

 

Trish:

It’s all about the partnerships, about those relationships between people and building the trust.

 

Leo:

I know there’s a lot of variation in the time that it takes to develop HCPs and, and sometimes, you know, there’s a fair bit of concern that it’ll take a long time to develop one. Could you, could you speak to that a little bit, about how long does it usually take?

 

Trish:

That’s the million-dollar question, isn’t it? And honestly, it really does depend on the complexity and the enthusiasm of the project proponent to get it done. And usually, you need that project proponent, or the champion, and who’s going to really push it to make sure that the project stays on track and that will really help in order to get it done more quickly, because, I mean, it’s not really a surprise, we know that some of them can take long a very long time.

 

And, you know, and honestly what we found too, is that, that when we’re developing these larger landscape level plans, the group dynamics usually do follow the Bruce Tuckman’s example of the forming, storming norming, and then getting to performing as an effective group. And, you know, and honestly — so again, it goes back to those relationships, right? So, if you spend a lot of time in the storming phase, then it’s going to take a long time to get through that. But if we can work together and listen, and everyone understand what each other’s needs are, and that means, we as service biologists need to fully understand the needs of the applicant. And then, I see it as our responsibility to see, well, how can we help guide this to meet our needs under the Endangered Species Act to ensure that it meets our issuance criteria and helps move the needle towards recovery of those species. So, I see that that’s a lot on our part too. So, it’s listening and building that trust. So that’s all going to gain and, and that will really determine how much time it will take to develop that HCP.

 

Leo:

That’s great. Again, those are all great examples. Are there any other specific things that an applicant can do? You mentioned a couple of great ones just there. Are there some other things that an applicant can do to help expedite the process?

 

Trish:

I think for me, I think it’s essential to hire a good project manager. You know, or a consultant to lead the HCP development effort. And that person does not need to be a biologist. If they are a really good project manager, they will know how to balance all those moving parts, because there’s a lot of things that go into HCP development that are happening on concurrent courses and keeping track of all of that is essential. And I also recommend resisting the urge to jump right into developing the HCP. Take the time to plan the plan. So that’s the governance of the HCP. So, it’s identifying roles responsibility when those key decision points need to be elevated up to decision makers throughout the process. The last thing you want to do is to have a draft plan, present it to your CEO or board, or on our end, we elevate it up to our regional office and major red flags are identified at that point.

 

And then you’re back to square one, starting over. So, you need to have those check-in points all along through the development process of the HCP. And that’s both on the services side, as well as the applicant’s side. And it’s really super important to develop a timeline right from the beginning. And something that’s reasonable that is going to account for all of those reviews and decision points along the way. Also, include dispute resolution. Because even though we all strive to be good partners, there are some times we can’t get on the same page and having a dispute resolution process built in early will help eliminate any potential conflicts. Because when you’re already sort of at odds, that’s not the time to be figuring out how you’re going to resolve those conflicts. And I found too, that the most successful applicants are ones that have done their homework.

 

They understand what an HCP is, what the issuance criteria are. They’ve reached out to other applicants to see how their process went and what some of the pitfalls were. And some of the lessons learned. And they really understand what our process is about. And conversely, what we do on our end is what we encourage our HCP biologists is to do the same thing. So, if they’re working on a plan with a with an applicant on an industry or a type of project that they’re unfamiliar with, and I’m like, I had to learn about blasting! You know, underwater, underwater blasting. So, I did a lot of homework, so I understood really what was going on and what the constraints were. So, I wasn’t recommending things that was unreasonable. So that’s a two-way street, right? And also, understanding that the service has other responsibilities as a federal action agency. So, we have to also comply with other federal laws, like NEPA, the National Environmental Policy Act, the National Historic Preservation Act.

 

Leo:

How do you ensure consistent approaches for developing HCPs across the country?

 

Trish:

So, it’s very challenging. And it’s mainly because of the diversity that we have across the United States. And we have different habitats, we have different species, there’s different political climates, and there’s different needs in each community around the United States. And that’s part of the reason why the Fish and Wildlife Service is not organized militaristically. And that is often a surprise to those that are not familiar with the Fish and Wildlife Service. And that’s because we give a level of autonomy to the regional offices. They operate individually because they are on the ground. They know what the needs are of their specific areas. And our role in headquarters is to provide support on the regulations, policy and guidance on our programs, but we’re there largely to support those regions. And we took a first stab at really updating our guidance in the revision to the 1996 HCP handbook.

 

We completely reorganized it. We took a hard look at our program to determine what we are doing and why, and what can we do better. And we identified that we could do better under our NEPA consultations, that we had a tendency to react and just do an EIS when, honestly, in EA, and maybe in some circumstances, these projects may have qualified for categorical exclusion. So, we really took a hard look on what we can do better and cut out those things that we shouldn’t be doing or could be doing more efficiently. And to ensure consistency and especially during administration changes like we’re experiencing now, having our monthly HCP practitioner calls nationally allows us to get the latest and greatest information out to the regions as quickly as possible, allow for questions to be asked, so we can respond. And then it gives us in headquarters, a great opportunity to do a pulse check of what is actually happening in the field so that we can adequately respond and then help provide that support.

 

Leo:

I do want to point out, one of the statements in the handbook that that really rings true is: start slow to end fast. And you’ve highlighted that throughout our conversation today.

 

Leo:

I really do want to thank you, Trish. That was a great summary of the things Fish and Wildlife Service are doing to help project proponents comply with the Endangered Species Act. Thank you so much.

 

Trish:

Well, thank you. I really appreciate this opportunity.

 

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