Building A Balance: Habitat Conservation Plans Environmental Education Fact Sheet The Endangered Species Act (ESA) prohibits the "taking" of endangered or threatened species on private property. The statute defines "taking" as harassing, harming, pursuing, shooting, wounding, killing, trapping, capturing, or collecting a threatened or endangered species. Activities that result in the injury or death of a listed species through habitat modification are also considered harm to a species, and therefore could be prohibited. Construction and land development activities that would cause injury to a listed species and/or significantly modify a listed species habitat are forbidden without a permit from either the Fish and Wildlife Service (for all species except marine species and andromous fish such as salmon) or the National Marine Fisheries (collectively, the Services). Section 10(a) of the ESA allows the Secretary of the Department of the Interior to authorize a "take" of listed species when the taking will not appreciably reduce the likelihood of the species' survival and recovery. The taking must not be the intended result of the proposed activity, and the permit application must be accompanied by a Habitat Conservation Plan (HCP). The section 10(a) authorization is a land owner's sole remedy to the ESA's land use prohibitions when no other federal action is necessary. Before Congress approved the HCP permit in 1982, landowners who wished to develop land occupied by threatened or endangered species were often forced to abandon their plans. HCPs provide a method whereby development is allowed to continue while listed species are protected on private property. To qualify for a Section 10(a) permit, the applicant is required to prepare a habitat conservation plan (HCP) specifying the impacts of the taking; steps to minimize the impacts; and alternatives to the proposed taking. The HCP outlines the mitigation measures to be implemented. Such measures may involve preservation of existing habitat, restoration of degraded or former habitat, creation of new habitat, the establishment of buffers around existing habitat, or restrictions on land use or access. The HCP also must provide a plan for funding administration of the HCP. Property owners are responsible for initiating and carrying out the incidental take permit/HCP process, for assuming the costs of collecting biological data on the species to be addressed by the HCP, determining the appropriate scope of the plan and insuring funding for plan implementation. There are two different types of HCPs. The first type involves a single landowner and a specific development proposal. The landowner is typically the applicant and the negotiations largely involve the applicant and the Services. For example, a private property owner may submit an HCP to develop a small parcel into buildable lots. The second type, a regional HCP, typically involves a much larger land area and many landowners. A local or regional governmental body is usually the applicant. Frequently, many different interest groups participate in the development of regional HCP. The distinction between single-landowner HCPs and regional HCPs is significant as the time needed to develop a conservation plan is directly proportionate to the number of interest groups participating in the process. Single-landowner HCPs will naturally take less time than regional plan involving many interested parties. Often, however, the biological issues of the species in question demand resolution through a regional HCP. The Service's decision to issue an HCP permit is based on findings that the harm to the species will be incidental, adequate funding to carry out the HCP will be provided, and the taking will not appreciably reduce the likelihood of the survival and recovery of the species. The absence of more precise standards is both a curse and a blessing. The standards leave significant flexibility to the FWS and the permit applicant to tailor a particular HCP to the specific facts and circumstances of any particular case. On the other hand, the absence of more precise standards can lead to extensive arguments over the degree of conservation required in order to secure a Section 10(a) permit. For example, the ESA does not provide any standards regarding the type or amount of mitigation the applicant should include in an HCP. Mitigation measures in adopted HCPs have ranged from elaborate design conditions to avoid and minimize the impact of the project to mitigation in the form of off-site reserves. For example, the San Bruno Mountain HCP included the redesign of the three proposed development projects, the establishment of reserve areas and an active management program to restore the grassland habitat on the mountain. An essential aspect of the HCP idea is the "No Surprises" clause. The clause guarantees the landowner that after their HCP has been approved, except in unforeseen circumstances, the services will not require further lands or funds from the applicant, nor will any further restriction be imposed on the use of land released for development purposes as long as the owner has adhered to the HCP's. The "No Surprises" clause, which was codified as regulation in 1998, provides substantial security for landowners. The formal Section 10(a) permit process is simple on the surface, but is complex in actual practice. Section 10(a) permits are obtained by filing an application with the Services. The ESA requires that the Services provide at least 30 days public notice of the permit in the Federal Register and that the agency(ies) respond to public comments. In reality, most Section 10(a) permits involving more than one landowner have been issued only after elaborate negotiations between the applicants, the Services, local planning agencies and other interest groups in the area. In addition, there are no statutory time-frames for the permit process, and most applications take years for approval. Recently, FWS has attempted to streamline the permit process for less-complex HCPs to three months and 10 months for regional HCPs. It is unclear whether the agency has been successful in its streamlining efforts. |
