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HCP Introduction (Adobe PDF)

This document is designed to answer frequently asked questions about the Etowah Aquatic Habitat Conservation Plan (HCP). HCPs are designed to protect species listed under the Endangered Species Act, while allowing development and other activities to occur. The Etowah Aquatic HCP is being developed by the local governments-cities and counties-of the Etowah basin, to protect nine imperiled fish species found in the basin's rivers and creeks. The Etowah Aquatic HCP will help avoid, minimize and mitigate the impacts of residential, commercial and light industrial activities on these species.

What is the Endangered Species Act (ESA)?

The ESA was passed by Congress in 1973 to "conserve the ecosystems upon which endangered and threatened species depend, and to conserve and recover listed species." Endangered species are in danger of extinction throughout all or a significant portion of their ranges. Threatened species are considered likely to become endangered in the near future (see http://endangered.fws.gov/ for more information.) The Georgia General Assembly has also passed a law protecting species of concern.

The ESA prohibits activities that may result in death, injury or harassment of endangered species, or destruction or modification of their habitat. Under the ESA, this is called "take."

Are there penalties for committing take under the ESA?

Yes. Penalties range from warnings, to monetary fines, to jail time for the most egregious violators.

Are there exceptions to the ESA that allow otherwise lawful activities that may cause take?

Yes. An important component of the ESA is the Habitat Conservation Plan (HCP). The ESA requires all parties who participate in actions that may cause take to write an HCP explaining how they have avoided, minimized and mitigated for the take their activity may cause (the only exception is for federal actions, or actions that require federal permits, which must meet a different set of requirements; see below). Examples of avoidance, minimization and mitigation strategies include using advanced stormwater control or reducing the amount of disturbed habitat. Once an HCP has been written and approved, the applicant receives an Incidental Take Permit (ITP) from the United States Fish & Wildlife Service (USFWS). The ITP allows the applicant to proceed with the activity proposed in the HCP, even though a small amount of take may occur. Applicants who follow their HCPs cannot be penalized by USFWS for take, as long as the amount does not exceed what is allowed in the ITP.

So HCPs allow endangered species to be killed and habitat destroyed?

HCPs allow development activities in areas where threatened and endangered species are found by allowing some take to occur, while making sure that take will not jeopardize the persistence of the entire population.

The bottom line is that USFWS will not approve an ITP if it finds that the HCP does not do enough to avoid, minimize and mitigate take Additionally, if the holder of an ITP violates the conditions of the ITP and exceeds allowable levels of take, USFWS has the right to penalize the permit holder.

The Etowah basin is home to several endangered aquatic species such as fish and mussels. How is incidental take handled here currently? Has anyone written an HCP in the Etowah basin?

No HCP has yet been written in the Etowah basin. Although many projects could have been required to have an individual HCP, up to now the USFWS has not mandated them. However USFWS reports that it plans to change this policy and to require individual HCPs in the near future, unless applicants voluntarily agree to comply with the draft provisions of the Etowah Aquatic HCP. Once the Etowah Aquatic HCP is passed, no individual HCPs will be necessary within participating jurisdictions.

What is the Etowah Aquatic HCP?

In 2002 the cities and counties in the Etowah Watershed began collaborating on the development of a regional HCP to protect threatened and endangered aquatic species found in the Etowah River and its tributaries.

The Etowah Aquatic HCP is focusing on minimizing impacts from residential, commercial and industrial development on three species of threatened and endangered fish: the Etowah, amber and Cherokee darters. In addition, six other fish species that are imperiled (but not listed under the ESA) will be covered. This way, only one HCP must be written even if these species are later listed.

When the Etowah Aquatic HCP is completed, who will hold the ITPs?

Each city and county that chooses to adopt the plan and all of its components will receive an ITP. The ITP covers all development activities that occur within the jurisdiction's boundaries.

If the ITP is held by a city or county, how will it affect developers and other individuals working in that jurisdiction?

Participating jurisdictions will adopt ordinances and policies included in the HCP. Anyone working in the jurisdiction will follow those policies just as they follow other local laws. That is, the only thing a local developer, builder, or any other individual needs to do to comply with the HCP is to obey local regulations. Local jurisdictions must effectively enforce these regulations or risk losing their ITPs.

How is the Etowah Aquatic HCP being developed? Who is responsible for deciding what goes into the HCP?

When the cities and counties of the basin agreed to participate in development of a regional HCP, each Board of Commissioners and City Council appointed a Steering Committee member to represent their jurisdiction. Some Steering Committee members are elected officials, others are local government staff, and some are members of the broader community. The Steering Committee ultimately decides what will go into the HCP based on input from Technical Committees of experienced professionals and community members.

Individual policies within the HCP were developed by Technical Committees of professionals and community members with experience in specific areas, supported by HCP staff from the University of Georgia. Extensive scientific research into the threats to the endangered species was used to inform the policies developed by the Technical Committees. For example, stormwater runoff was identified as a major threat to the species. The HCP Stormwater Ordinance was developed by a committee of developers and engineers to help avoid, minimize and mitigate the effects of stormwater on the endangered species. The HCP Erosion and Sedimentation Control Standard Operating Procedure was developed by a committee of local erosion control consultants and enforcement officers. Regional and local environmental groups such as The Nature Conservancy and the Upper Etowah River Alliance also participate in these committees.

An extensive outreach process has also accompanied development of the HCP. Outreach has involved educating community groups through presentations, literature and newspaper articles; working with elected officials and staff to help develop a thorough understanding of the benefits and costs of adopting a regional HCP; and gathering feedback and recommendations from professionals across the basin, state and nation.

How long will it take to develop the HCP and receive ITPs?

HCPs take an average of 5 years to develop and receive approval from USFWS. Development of the Etowah Aquatic HCP began in earnest in 2003, and it was submitted to USFWS for approval in December, 2006. USFWS state and regional offices returned comments on the HCP in February, 2007.  The comments were addressed, and significant changes were reviewed by HCP Steering Committee members representing participating local governments.  The revised HCP was resubmitted to USFWS on May 10, 2007.

What is the cost of developing the HCP? How is the project being funded?

USFWS has provided approximately $1.2 million in grants to fund the development of the HCP since 2002. Additional funding needs and sources may be identified by the HCP Steering Committee.

Will the HCP qualify the region for additional funding? Are there strings attached?

Funding for land acquisition and habitat protection is available for local governments that sign on to the HCP. If the Etowah Aquatic HCP is approved the region would qualify for federal land acquisition grants, which totaled $68 million in the 2002 fiscal year. There are some requirements, such as partial matching funds.

If a regional HCP is approved, can a participating local government opt out? Can they rejoin later?

Adopting the regional HCP is voluntary and it is possible to opt out. Individual HCPs will be required for specific projects in jurisdictions that do not participate in the regional HCP.

Jurisdictions that opt out can rejoin the regional HCP later. It is to the advantage of local governments to participate from the beginning, however, so they have input into the development of the HCP.

Will the cities in the Etowah basin receive their own ITPs, or will they fall under their county ITPs?

Participating cities will receive ITPs that cover activities within their boundaries.

What happens if a county participates in the plan, but a municipality within the county does not?

Individual HCPs will be required for activities within the municipal boundaries that are not covered by the county HCP.

How will the HCP change development practices to minimize impacts on endangered species?

The HCP contains several strategies for minimizing the key threats that face endangered species. Examples include improved management of stormwater runoff, improved control of erosion from development projects, and design standards for stream crossings to ensure fish passage.

How will the HCP incorporate other state, county and city policies such as those for stormwater and erosion control?

The Technical and Steering Committees working on the HCP researched existing policies and requirements. Wherever possible, these committees have used existing policies as building blocks for HCP policies. In some cases this has resulted in very minor modifications to existing policies or no modifications at all. Much of the development of the HCP simply involves organizing existing policies in ways that allow USFWS to recognize them as components of the HCP, and making sure existing policies are adequately enforced. An example is the HCP stream buffer ordinance, which is essentially identical to the stream buffer ordinance of the Metropolitan North Georgia Water Planning District.

Will the HCP slow or stop economic growth and development in the Etowah watershed?

No. HCPs allow growth and development to continue in a manner that complies with federal law and allows endangered species to thrive for generations to come.

The majority of HCPs are written by industrial interests such as timber and mining companies. These industries have been writing HCPs for many years, as the HCP is the legal instrument that allows them to continue operations in areas where endangered species live.

More recently, researchers have begun to understand the impacts of residential and commercial development on endangered species, and that HCPs are necessary for these industries as well. However, because many residential and commercial development firms have operations in the Etowah, including smaller, local firms, writing an HCP for development in the Etowah is complex. The regional approach of the Etowah Aquatic HCP simplifies that complexity by focusing on local jurisdictions rather than on the many development-related firms that operate in the basin.

What activities will be covered by the Etowah Aquatic HCP?

The Etowah Aquatic HCP is being written to cover most residential, commercial and light industrial development in the Etowah basin. This includes the work of developers and builders that construct homes, streets, neighborhoods, strip malls and larger commercial centers, as well as the industries that accompany this development such as electric, telephone and cable utilities, and local government infrastructure projects. All of theses activities are permitted and regulated by local governments, and the HCP will not change that. Instead, the HCP simply gives developers, builders and associated industries new guidelines to follow when working in jurisdictions covered by the HCP. In exchange for following new policies, development industries and local governments receive the ITP that protects them in the event that development activities cause an incidental take of endangered species.

What activities will not be covered by the HCP?

The Steering Committee has voted to exempt agricultural and forestry activities from the HCP. Only development-related activities are covered.

The Steering Committee has chosen to write the HCP to comprehensively cover development practices that fall within the jurisdiction of local regulations. There will be some development activities that the HCP does not cover, however. These include things such as state or federal road improvement projects, construction of new transmission lines, wastewater treatment plants, and other point-source discharges of pollutants into waterways.

Additionally, developers participating in activities that are normally covered by the HCP, but seeking variances to HCP policies, can apply for variances by following local variance procedures. In these cases USFWS can require that an individual HCP be written for the proposed activity.

Will the HCP cover planning for new reservoirs and other water supply measures?

Yes. Reservoir construction is one of the most serious threats facing aquatic species in the Etowah. Planning for future water supply is also one of the most pressing concerns for local governments and residents in the basin. The Technical Committee addressing this issue was the Upper Etowah Basin Group, a consortium of water authorities in the basin that focuses on water supply planning issues, supported by Mary Freeman of the U.S. Geological Survey and HCP staff from UGA. This Technical Committee developed a planning process for locating future reservoirs in locations that will minimize impacts on endangered species. This process is expected to greatly increase the efficiency with which new reservoirs are approved by USFWS.

What endangered species will be protected by the Etowah Aquatic HCP?

Three federally listed fish species (amber darter, Etowah darter and Cherokee darter) are proposed to be formally covered by the Etowah Aquatic HCP. Six other imperiled fish species are listed below; they are not formally covered by the HCP but will benefit from the avoidance, minimization and mitigation measures in ways very similar to the listed species. This plan can serve as an appropriate basis for an HCP for these six species should they be listed in the future.

Will the HCP cover geographic areas where there are currently no endangered species?

Some of the species protected by the plan, such as the Cherokee darter, are widely distributed in small streams throughout much of the Etowah basin. Other species, such as the amber darter, are only found in the main stem of the Etowah River and the mouths of larger tributaries. Protecting these species requires not just protection of local stream buffers, but minimization of impacts throughout the upstream watershed. Because water in tributaries that do not contain listed species eventually flows downstream to areas that do support these fish, it is important that all streams maintain a high level of water quality. Therefore, the HCP is intended to cover most of the Etowah basin. However, none of the fish covered under the HCP are in the lower Etowah, near Rome, nor in the lower (most western) tributaries, such as Euharlee Creek and Silver Creek. These lower parts of the basin are not covered by the Etowah Aquatic HCP, although participating jurisdictions are free to apply the same regulations to these areas if they wish.

What happens if there is not a regional aquatic HCP for the Etowah?

USFWS can require all development firms, landowners proposing developments to their property, and local governments improving infrastructure in the Etowah to write individual HCPs for projects the agency believes will impact listed species. Having to develop individual HCPs would likely be expensive, difficult and time consuming for ITP applicants.

A regional HCP alleviates those issues, and makes rules for minimizing and mitigating impacts to endangered species clear and simple, and consistent across the Etowah basin. With a regional HCP in place, all that developers, landowners and local governments must do is follow the rules laid out in the HCP and adopted by each jurisdiction.

Will there be monitoring to see if HCP strategies are working and fish are responding positively?

Yes. A comprehensive program will be developed to monitor the response of the species protected by the HCP, water quality, and quality of habitat, as well as the effectiveness and consistency of local governments at implementing the HCP. An additional monitoring component will gauge the success of the HCP from the perspective of the local community and industry professionals.

Who is the ultimate enforcer of HCP requirements?

Each local government will be responsible for enforcing the requirements of its ITP. However, if a local government fails to meet the terms of its ITP, USFWS can revoke it and require individual ITPs to be written for development projects within that jurisdiction.

Can the HCP be modified once it is adopted and implemented?

Yes. The portion of the plan that allows for modification is called "adaptive management." If monitoring shows that a policy within the HCP is not providing the desired results, that policy can be modified. For example, if monitoring shows that the Stormwater Ordinance is more restrictive than necessary, or not restrictive enough, it can be modified accordingly. Policies can also be modified if they are too difficult to enforce or implement in the field. Modifying a policy will require agreement from all participating jurisdictions.