What is a Habitat Conservation Plan (HCP)?
Section 10(a)(1)(B) of the federal Endangered Species Act (ESA) authorizes the United States Fish and Wildlife Service (USFWS) and/or National MarineFisheries Service (NMFS) to issue permits to non-federal entities for the incidental take of a federally-listed threatened and/or endangered species. In order to obtain authorization under Section 10(a)(1)(B) of the ESA, non-federal entities must develop a conservation plan that meets specific requirements as identified in the ESA, apply for an incidental take permit, and once issued, implement the project as specified in their permit.
A Habitat Conservation Plan (HCP) is a planning document designed to accommodate economic development to the greatest extent possible by authorizing the limited and unintentional take of listed species when that take occurs incidental to otherwise lawful activities. The plan is designed not only to help landowners and communities but also to provide long-term benefits to species and their habitats.
HCPs describe the anticipated effects of the proposed taking from an impact to waters of the US, how those impacts will be minimized or mitigated, and how the conservation measures included in the plan will be funded.
If the USFWS or NMFS finds that an HCP meets the specified criteria, it issues an incidental take permit. This allows the permit holder to proceed with an activity that could otherwise result in the unlawful take of a listed species. (see https://www.fws.gov/service/habitat-conservation-plans and/or https://www.fisheries.noaa.gov/permit/permits-incidental-taking-endangered-and-threatened-species for more information on Section 10(a)(1)(B) of the ESA and habitat conservation plans).
What is the U.S. Army Corps of Engineers, Sacramento District (Corps’) role in HCPs?
The Corps does not have a direct role in compliance with Section 10(a)(1)(B) of the ESA, nor in the development of HCPs, as these are for activities conducted by non-federal entities. However, in cases where activities conducted by non-federal entities would require authorization by the Corps under Section 10 of the Rivers and Harbors Act (RHA) for work or structures in navigable waters of the U.S., and/or Section 404 of the Clean Water Act (CWA) for the discharge of dredged and/or fill material into waters of the U.S., the Corps must ensure compliance with Section 7 of the ESA. Section 7 of the ESA requires the Corps to consult with USFWS and/or NMFS for proposed activities that may affect a federally-listed threatened and/or endangered species, or their designated critical habitat.
Because many of the activities covered under two regional HCPs, in Sacramento and Placer counties, also require authorization by the Corps under Section 404 of the CWA, the Corps agreed to be a cooperating agency on the U.S. Fish and Wildlife Service’s (USFWS) Environmental Impact Statements prepared in accordance with the National Environmental Policy Act (NEPA) for two habitat conservation plans in the Sacramento region: the South Sacramento Habitat Conservation Plan (SSHCP) and the Placer County Conservation Program (PCCP). Because many of the listed species to be covered by the SSHCP and PCCP spend some or all of their lifecycles in aquatic environments, the Sacramento District has worked with the Plan Partners and other agencies since the plans’ formative stages. In 2019, the Corps finalized a permit strategy for the SSHCP and in 2021 finalized a permit strategy for the PCCP.
Benefits of CWA 404 alignment with the HCPs?
The Sacramento District views the HCPs as a chance to improve both species and aquatic resource protection in a coordinated way on a regional scale, while taking into account planned development and providing greater certainty for the regulated public. With this in mind, the Sacramento District has coordinated with the USFWS, NMFS and Plan Participants to develop and implement a “streamlined” approach to permitting under CWA 404 that encompasses a number of different permit types and processes.
The Sacramento District requested and received programmatic consultations under Section 7 of the ESA with the USFWS and NMFS for all covered activities that require CWA permits to further streamline the CWA 404 regulatory review process. The Corps also received general 401 Water Quality Certifications from the Central Valley Regional Water Quality Control board for each of the programmatic general permits (PGPs) issued under the permit strategy.