Habitat conservation plans (HCPs) have become an increasingly prevalent land management tool that seeks to balance the needs of endangered or threatened species with the needs of non-federal landowners. HCPs are voluntary agreements under the Endangered Species Act (ESA) negotiated between the federal government and private landowners or state and local governments, and, in some cases, other stakeholders. These agreements are designed to allow landowners to receive a federal permitÑknown as an incidental take permitÑto unintentionally harm listed species in the course of completing proposed projects. In exchange for a permit, landowners agree to pursue specific management protections for endangered and threatened species.
HCPs are as varied and diverse as the habitats they aim to protect. HCPs range in size from a few acres to over a million acres. Some plans focus on a single species, while others focus on multiple species or ecosystems. Some HCPs are negotiated directly between the U. S. Fish and Wildlife Service (FWS) and the landowner; others involve a host of stakeholders, such as state and local governments, environmental groups, recreational groups, non-applicant landowners, and business organizations. HCPs also differ in their durationÑpermits range from one year to 100 yearsÑand use a variety of funding mechanisms (Beatley 1994; FWS 1997b). Finally, HCPs vary in the means the parties to the agreement use to protect species: some HCPs focus on preserving key habitat areas while others require predator control, prescribed burning, or other mitigation measures.
One example of an HCP is the Coachella Valley HCP near Palm Springs, California (Beatley 1994). This HCP developed because rapidly expanding housing development on private land in the California desert increasingly threatened the habitat of the Coachella Valley fringe toed lizard (Uma inornata). Rather than go to court, the housing developers, federal and state agencies, conservationists, affected county governments, and other parties negotiated an HCP that was designed to allow development to continue and still protect key portions of the lizard's habitat. Completed in 1986, the HCP established three reserves totaling 17,000 acres, 8,000 acres of which is potentially occupiable lizard habitat. The parties acquired the reserve holdings using funds from The Nature Conservancy, the Federal Land and Water Conservation Fund, and other sources. Counting the reserve system and public lands in the valley managed as lizard habitat, the HCP protects roughly 15 percent of the total lizard habitat that remained in 1985. The rest of the lizard's range is open for development largely without restriction; counties do, however, assess a per-acre mitigation fee on all new development within the lizard's historic range. The FWS permitted the HCP for a period of thirty years, and it has largely been implemented as planned.
HCPs are likely to play an increasingly important role in species conservation in the United States. First, more attention is being paid to protecting listed species on non-federal lands, where conflicts between development and species are most likely to occur. According to a 1994 report by the General Accounting Office, over 80% of listed species reside in habitat on non-federal lands and nearly three-quarters of listed species have more than 60% of their habitat on non-federal lands (U.S. General Accounting Office 1994). Moreover, federal conservation efforts have begun to focus species recovery efforts on a number of "hot spot" areas, especially Florida, Southern California, Texas, and old growth forests in the Pacific Northwest, where high levels of endemism exist, and where biodiversity is jeopardized by rapid economic growth and development (K. Day, FWS, personal communication, Oct. 2, 1996; see e.g., Rodriguez et al. 1997). Approved HCPs are already most numerous in these areas and will continue to play important conservation roles there. HCPs are also important because they may help address weaknesses in the ESA. While the ESA has functioned well as a last ditch effort to prevent extinction, it has routinely failed either to address the habitat needs of species before they face extinction or to recover species to the point that they can be removed from the endangered species list (see e.g., National Research Council 1995). Both supporters and critics of the ESA have also identified the law's focus on individual species and lack of an overall habitat-oriented perspective as major weaknesses (Rohlf 1991). The lack of resources available for endangered species protection efforts has also been a continuing problem.
Many have pointed to HCPs as a promising tool to address these concerns (see e.g., Thornton 1991). For example, because HCPs can be designed as multi-party collaborative processes that can include both public and private lands and species other than those that are listed under the ESA, they can provide opportunities to protect species before they face extinction and to implement ecosystem-based management (FWS and NMFS 1996). HCPs can also function as a surrogate for community open-space planning, which may engage people who might otherwise not be concerned about endangered species in the process of protecting their habitats. Finally, HCPs may also provide opportunities to leverage significant private and public resources to implement species protection measures.
Legislative and administrative history
HCPs arise from Sections 9 and 10(a) of the ESA. Under Section 9 of the ESA it is illegal to "take" (i.e., kill, harm, or harass) a listed species. This prohibition against the take of species applies to private and public lands and has been interpreted broadly to include habitat destruction or modification. This prohibition has been particularly problematic for private landowners who could be subject to criminal and civil penalties for undertaking development activities that could harm or kill listed species on their lands (Beatley 1994). However, under Section 10(a) of the ESA, non-federal landowners who plan activities on their lands that may "incidentally take" (i.e., unintentionally harm) a threatened or endangered species may apply to the FWS or National Marine Fisheries Service (NMFS) for an incidental take permit (ITP) that exempts them from this strict Section 9 prohibition against take. In order to receive this ITP landowners must, among other things, prepare an HCP.
Congress was urged to create the Section 10(a) exemption by proponents of a conservation plan on San Bruno Mountain, California that was crafted in the early 1980s. In the conference report on the 1982 ESA Amendments, Congress specified that it intended the San Bruno plan to act "as a model" for future conservation plans developed under the incidental take exemption provision and that "the adequacy of similar conservation plans should be measured against the San Bruno plan" (H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32, 1982. p. 31). Congress further noted that the San Bruno plan: (1) was based on "an independent exhaustive biological study" completed prior to the development of the plan; and (2) protected at least 87% of the habitat of the listed butterflies that led to the development of the HCPÑenough habitat "to allow for enhancement of the survival of the species" (H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32, 1982. p. 32).
To receive an ITP under Section 10(a), applicants must at a minimum submit a conservation plan that specifies (1) the impact which will likely result from their proposed incidental take; (2) what steps they will take to minimize and mitigate impacts, and the funding that will be available to implement such steps; (3) the alternative actions the applicant considered, and why they are not being used; (4) other measures required by the agency; and (5) procedures to deal with future unforeseen circumstances that may affect the health of the species or the success of the HCP (50 C. F. R. §§ 17.22, 17.32(b)(1)).
The habitat conservation planning process
The planning process has three general stages: development, approval, and implementation. The development of an HCP typically requires significant scientific baseline collection and analysis, often conducted by outside consultants hired by the applicant. The whole process can take many years and cost millions of dollars. Usually, district-level FWS or NMFS staff assist in the applicant's development of the HCP by providing clarification, scientific information, and feedback. For many large or complex HCPs, a steering committee representing affected stakeholders and scientific and agency interests is formed.
In the development stage, parties also negotiate the terms of the agreement. In return for allowing an incidental take of a species, the parties agree to pursue specific management protections for the species. Almost all HCPs share a basic central strategy of identifying and protecting certain high value habitat areas (Beatley 1994). In some cases, the landowner sets aside a portion of his or her own land for conservation purposes; in others, the landowner or independent parties (e.g., private land trusts; local, state, or federal government entities) purchase the habitat conservation areas. Local zoning restrictions have also been used to protect designated areas (Beatley 1994). In addition to these land protections, HCPs can also include other mitigation actions, such as public education campaigns, habitat restoration, land-use restrictions on nearby public lands, control of exotic species or predation, captive breeding, or changes to the design or density of landowners' projects (Beatley 1994).
The approval stage of the HCP planning process involves both internal agency analysis and external public review. The applicant usually submits four documents for agency approval: (1) a completed permit form which requests the specified amount and rate of incidental take; (2) the HCP, which includes the scientific information and details of the mitigation plan; (3) an implementation agreement which serves as a binding contract and details how the elements of the plan will be carried out, paid for, and monitored; and (4) the appropriate National Environmental Policy Act (NEPA) documentation (i.e., environmental assessment or environmental impact statement). The agency in turn will amend the NEPA documents if necessary and publish notice of the HCP and a minimum 30-day public comment period in the Federal Register. If the agency approves the HCP, it issues the applicant an ITP. This permit action qualifies as a federal agency action; thus, the agency must engage itself in a "self-consultation" process to evaluate whether the proposed action is in compliance with Section 7 of the ESA (50 Federal Register 39685, Sept. 30, 1985). State endangered species laws and environmental reviews, as well as local zoning or planning regulations, may require additional documentation or public review.
Implementing the HCP involves carrying out the prescribed mitigation actions, collecting funds, and monitoring take levels and overall species impacts. Funding for implementation of the HCP can take many forms and often involves some combination of federal, state, local, and private sources, such as per-unit fees on new development, community-wide taxes, contributions from participating groups (e.g., The Nature Conservancy), state wildlife funds, issuance of city bonds, and Federal Land and Water Conservation Fund appropriations (Beatley 1994). Monitoring responsibilities for approved HCPs are usually jointly shared by the applicant and the FWS or NMFS and often involve preparation of periodic reports documenting the amount of development that has occurred, number and type(s) of listed species taken, and the amount of money generated and spent to date (see Dohner and Smith, this issue).
The growth of HCPs
Landowners and the agencies initiated relatively few HCPs in the years following the creation of the Section 10(a) incidental take provisions in 1982. Traditionally, the agencies focused their efforts on those projects or actions that included federal lands or some federal permit approval. Since the Section 10 process is voluntary, most potential applicants chose not to participate and appear to have relied on lax enforcement of the Section 9 take prohibitions on private property (Houck 1993). Moreover, the HCP process was historically viewed as procedurally difficult, costly, plagued with delays, and risky in terms of regulatory assurances (Thornton 1994).
Habitat conservation planning, however, has changed dramatically in recent years. Growing scientific recognition of the role of private lands for endangered species recovery and the landmark 1981 District Court ruling in Palila v. Hawaii Department of Land and Natural Resources (639 F.2d 495, 9th Cir., 1981) both contributed to making Section 9 "a major force for wildlife conservation and a major headache to the development community" (Thornton 1991. p. 610). Indeed, during the last decade there has been a significant rise in disputes concerning Section 9's application to private property (Thornton 1991).
Perhaps more importantly, the Clinton Administration has made several administrative changes in its ESA policies that have increased the incentive for landowners to engage in the HCP planning process and led to a dramatic increase in the number of landowners applying for and receiving approval for HCPs (see e.g., FWS 1995). Indeed, in an effort to encourage the broader application of HCPs and to deflate Congressional efforts to weaken the ESA, the Clinton Administration has sought to make Section 10 and HCPs "one of the ESA's most important and innovative conservation programs" (FWS 1995).
The result has been a dramatic increase in the number and scope of HCPs that have been proposed and approved. Prior to 1994 the FWS had approved a total of only 20 HCPs. However, after the Clinton Administration's efforts to streamline the planning process and increase landowner incentives to participate, the FWS approved 174 new plans between 1994 and 1996. At the end of 1996 there were approximately 200 HCPs at some stage of preparation, and the FWS expects to work on as many as 400 during FY 1998 (FWS 1997a, b). In addition, the scale and scope of HCPs have increased dramatically in recent years. The FWS and NMFS report that the majority of HCPs developed prior to 1995 were of less than 1,000 acres in area while HCPs in development in 1996 included 25 that exceed 10,000 acres, 25 that are more than 100,000 acres, and 18 that exceed 500,000 acres (FWS 1997b). By September 1997, the U. S. Department of Interior expects that more than 18.5 million acres of private land and over 300 species will be covered by HCPs (1997).
The growth of HCPs and the policies that led to this growth raise several controversial issues that are the subject of articles in this issue. Our goal here is to provide background on these issues.
No Surprises policy
One of the most significant policy changes by the Clinton Administration was its adoption of the so-called No Surprises policy on August 11, 1994 (U.S. Departments of Interior and Commerce 1994). This policy assures landowners that once the agencies have approved an HCP, the landowner will not be required to accept new land-use restrictions or financial commitments beyond those agreed to in the HCP. Thus, if "unforeseen circumstances" reduce the likelihood that a species covered by the HCP will survive over the term of the permit, the agencies agree to bear the sole responsibilityÑboth financial and logisticalÑof all recovery efforts above and beyond that required by the HCP. The policy further specifies that the agencies bear the burden of proving that unforeseen circumstances exist and that any additional future mitigation not called for in the original HCP be conducted within the geographic confines of the original HCP unless the permittee allows otherwise. Also under the policy, the agencies agree not to impose additional mitigation measures of any type on landowners whose HCPs are designed to have a net positive impact upon a species. Under current agency guidelines, all new HCPs must be consistent with this policy (FWS and NMFS 1996).
Approximately 74 of the HCPs issued after 1994 are thought to contain the No Surprises assurance (see Baur, this issue), although the agencies did not officially publish the No Surprises policy in the Federal Register until May 29, 1997. The agencies agreed to seek public comment on the policy and on any HCP that contains the No Surprises assurance when they settled a lawsuit filed by environmental groups unhappy with the process used to adopt the policy (62 Federal Register 29091, May 29, 1997).
Other policy changes
The Clinton Administration has also adopted measures to encourage the development of large-scale, multi-species HCPs and to streamline agency procedures. In November of 1996, the FWS and NMFS released their Habitat Conservation Planning Handbook. While it is "not intended to supersede or alter any aspect of endangered species law or regulation" and serves only as a "guide," the Handbook does contain a number of important procedural changes aimed at expediting permit processing times, reducing the total number of permitting steps, combining required regulatory measures, and increasing coordination earlier in the HCP process. The Handbook focuses on how "to streamline the HCP process to the maximum extent practicable and allowable by law" but does not necessarily focus on how to make HCPs work better for species protection. Agency streamlining has taken a number of forms including "target" permit processing times, creation of a "low effect" category of HCPs that are exempt from full NEPA review, integration of permit and environmental review documents, use of template language, and concurrent agency review processes.
On June 6, 1997 the FWS and NMFS published regulations regarding prelisting agreements and its Safe Harbors policy (Department of Interior 1997). Prelisting agreements forestall listing of an imperiled species in exchange for landowner conservation efforts. The Safe Harbors policy encourages landowners to improve habitat for listed species on their property and attempts to reverse the incentive that landowners currently have to take endangered species before their land is regulated. Under the policy, the appropriate federal agency determines a habitat baseline condition and any increase in a listed species population above that baseline condition that results from the landowner's voluntary stewardship efforts would not increase their regulatory responsibility or affect future land-use decisions. For example, the FWS and a private landowner might agree to provide habitat for a certain number of red-cockaded woodpeckers (Picoides borealis) on the landowner's property. As long as the landowner continues to sustain that habitat and population baseline, he or she can actively log or otherwise manage that land without fear of prosecution under the ESA. The agency has been implementing this policy for some time even though it has not yet been officially approved. Currently, twenty-five Safe Harbor agreements cover more than 21,000 acres of private land and more than 10 species (Department of Interior 1997). Sixteen more agreements are in progress and are expected to cover another 14,000 acres.
While the overarching goal of the ESA is to recover species to the point at which its protections are no longer needed, the goal of species recovery does not currently drive the HCP planning process. In the Conference report to the 1982 ESA Amendments, Congress required the agencies to base their ITP decisions, in part, on "whether the taking will appreciably reduce the likelihood of the survival and recovery of the species in the wild," a standard very similar to the "jeopardy" standard in Section 7 of the ESA (H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32, 1982. p. 29). Congress also suggested that the agencies consider "the extent to which the conservation plan is likely to enhance the habitat of the listed species or increase the long-term survivability of the species or its ecosystem" (H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32, 1982. p. 31).
However, while encouraging species recovery, current agency policies require only that an HCP ensure the survival of all included listed species. The agency claims that HCPs are not legally required to either contribute to recovery or result in a net benefit to an affected species (see e.g., Taylor 1994; FWS and NMFS 1996). In the Habitat Conservation Planning Handbook, the agencies interpret Section 10(a) to "reflect the fact that HCPs were designed by Congress to authorize incidental take, not to be ... recovery tools" (FWS and NMFS 1996. p. 3-20). However, the Handbook also states: "...contribution to recovery is often an integral product of an HCP...." and "[i]n general, conservation plans that are not consistent with recovery plan objectives should be discouraged" (Id.).
Public involvement and peer review
Congress gave the agencies broad discretion in implementing Section 10(a). The agencies, in turn, have given a high degree of discretion to landowners in developing the scope, duration, and level of public involvement in the HCP, as well as the number of species covered by the plan (FWS and NMFS 1996). Congress also saw Section 10(a) and its HCP provisions as a means for promoting "creative partnerships between the public and private sectors" (H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32, 1982. p. 30) and suggested that HCPs be "developed jointly between the appropriate federal wildlife agency and the private sector or local or state governmental agencies." It did not, however, explicitly envision an extensive participatory role in the HCP planning process for concerned citizens, independent scientists, or other interested publics. Indeed, the statute requires the agencies only to publish notice of each application and a 30-day comment in the Federal Register (16 U.S.C. § 1539(c); 50 C.F.R. § 17.22 (4)(b)(1)). Moreover, since Congress clearly intended its HCP provisions to address "the concerns of private landowners who are faced with having otherwise lawful actions ...prevented by Section 9 prohibitions against taking" (H.R. Rep. No. 835, 97th Cong., 2nd Sess. 32, 1982. p. 29) the extent of public involvement has often been left up to the discretion of the applicants.
In practice, applicants developing HCPs utilize a variety of public participation methods often depending on the type of land ownership(s) involved in the plan and local and state laws. In some cases an HCP may be negotiated directly between the landowner and the agency, with the 30-day comment period as the only public review of the plan. In other cases, outside stakeholders participate on an HCP steering committee and have more influence over the development of the plan.
As the 105th Congress considers legislation to reauthorize the Endangered Species Act, a number of controversial policy questions surrounding HCPs have not yet been adequately answered. While much has been written about early HCPs, there is a paucity of written material focusing on how HCPs created pursuant to the Clinton administration's policy changes deal with these questions. Given the tremendous growth in the number and scope of HCPs being implemented today, these questions deserve to be answered quicklyÑthe existence of hundreds of endangered species is at stake.
Beatley, T. 1994. Habitat conservation planning. University of Texas Press. 234 pp.
Houck, O. 1993. The Endangered Species Act and its implementation by the U.S. Departments of Interior and Commerce, Colorado Law Review 64(2):277.
National Research Council. 1995. Science and the ESA. National Academy Press, Washington, D.C.
Rodriguez, J. P., W. M. Roberts, and A. Dobson. 1997. Where are endangered species found in the United States. Endangered Species UPDATE 14(3&4):1-4.
Rohlf, D. 1991. Six biological reasons why the ESA doesn't work - and what to do about it. Conservation Biology 5:273.
Taylor, M. 1994. Promoting recovery, Environmental Law 24 (581):592 n.57.
Thornton, R. D. 1991. Searching for consensus and predictability: habitat conservation planning under the ESA of 1973. Environmental Law 2:605-656.
Thornton, R. D. 1994. Industry perspectives regarding habitat conservation plans. Resolve 26:12-14.
U.S. Department of Interior. June 6, 1997. Babbitt and Daley say protection for rare plants and animals have increased under the "new" Endangered Species Act. Press release.
U.S. Department of Interior and U.S. Department of Commerce. August 11, 1994. No Surprises: assuring certainty for private landowners in Endangered Species Act habitat conservation planning. Joint press release.
U.S. General Accounting Office. 1994. Endangered Species Act: information on species protection on non-federal land.
U.S. Fish and Wildlife Service. March 6, 1995. Protecting America's living heritage: a fair, cooperative and scientifically sound approach to improving the ESA. Brochure.
U.S. Fish and Wildlife Service. February 6, 1997a. Administration's proposed budget would increase funding for a broad range of conservation planning. Press release.
U.S. Fish and Wildlife Service. May 8, 1997b. Habitat conservation planning: Fish and Wildlife Service responses to questions of the House Resources Committee regarding HCPs.
U.S. Fish and Wildlife Service and National Marine Fisheries Service. 1996. Habitat conservation planning handbook. U.S. Departments of Interior and Commerce. 110 pp.
The authors are engaged in an 18 month Master's project at the University of Michigan's School of Natural Resources and Environment . They are studying the role of public participation in the HCP process and can be contacted at email@example.com. Dr. Steven Yaffee is the advisor.
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