Habitat Conservation Plans

Habitat Conservation Plans (HCP) are a tool that can be used to balance the need to conserve the habitat of species listed by the Endangered Species Act (ESA) and the needs of private landowners to make economic use their own property.  While this is a tool that is specifically used to manage for endangered species it can also be extremely useful in managing many species within the same habitat as an endangered species.

The ESA, established in 1973, provides for the protection of the habitat of any listed threatened or endangered animal.  Any destruction of a listed animal or animal’s habitat is considered a “take” and is punishable by law.  Section 10 of the ESA was enacted in 1983 as a response to the notion that the ESA was too restrictive of activities that were otherwise completely legal but might result in the destruction of habitat or of the animal itself.  This section allows for an individual, state or local government to apply for an Incidental Take Permit (ITP), only granted along with the approval of a HCP.

Possible HCP Benefits

The US Fish and Wildlife Service (FWS) is the managing agency for the ESA and therefore the approval agency for ITPs and HCPs (although the National Marine Fisheries Service approves ITPs and HCPs involving marine species).  The application procedure is laid out in the “Habitat Conservation Plan Handbook” written by the FWS in the mid 1990s to make the process of adopting a HCP more consistent, as the number of applicants increased dramatically (the Handbook includes additional guidance for developing HCPs for such unique circumstances as migratory birds and coordination with National Wildlife Refuges).  Each HCP must include the following:

·   The impact which will result from the taking of the species in question,

·   The steps that will be taken to minimize or mitigate these impacts,

·   The funding sources that will be available to implement these minimization or mitigation measures, and

·   A list of alternative actions considered and the reasons that these alternative actions were not taken. 

The Handbook was amended in 2000 with “the Five Point Policy” which intended to streamline the process among the offices of the FWS.  The five policies are (1) to derive biological goals and objectives, (2) use adaptive management, (3) monitor compliance and effectiveness of the HCP, (4) maintain a range of permit durations and (5) expand public participation.  In addition to streamlining the process, these new policies were adopted in response to criticisms that HCPs were based on inadequate science by the American Institute of Biological Sciences and the National Center for Ecological Analysis and Synthesis (please see http://www.fws.gov/endangered/hcp/response.htm for more information).

Along with the HCP, a permit application form and fee and document illustrating compliance with NEPA are required for the FWS to process the ITP.  Once the FWS receives the application it will post a notice of application on the Federal Register which opens a period of public comment of 30 days for a “low effect” HCP which either requires no NEPA review or simply an Environmental Assessment (EA) or 45 days for an HCP which requires an Environmental Impact Statement (EIS).  After the period of public comment the FWS makes the decision to issue or not issue the ITP and announces the decision via the Federal Register.  The following four standards must be met for a permit to be issued:

• The taking is found to be incidental to the otherwise lawful activity,
• The impacts of the incidental take will be minimized or mitigated as much as possible,
• There is adequate funding for implementing the proposed plan and,
• The taking will not reduce the survival and recovery of the species in question (Duerkson et al., 1997).

Once the ITP is issued, development can begin on the land in accordance with the HCP.

Anyone who is not a federal land owner can develop a HCP and receive the corresponding Incidental Take Permit (ITP), however, it is most practical to develop the HCP at the county or regional level.  Planning at this level creates a more integrated approach to managing the habitat of species.  In contrast, leaving the development and implementation of HCPs to individual landowners in a community is time consuming (because each individual plan must be approved separately), expensive (because of the need to hire lawyers and consultants to prepare each plan) and disjointed (because each landowner must mitigate any destruction of habitat which may result in small patches of isolated habitat of little conservation value or may require impact fees paid to the federal government which are then used for conservation outside of the disturbed community).  Developing the HCP at the county level simplifies the process through one plan.  This means that only one application to the FWS needs to be submitted, only one team of consultants and lawyers needs to be hired, a well thought-out network of protected areas and appropriate areas for development is established, mitigation fees for development are collected by the county and can be spent locally for more conservation lands and, lastly, individual landowners have a more secure idea of what they can do with their property because they can deal directly with the county rather than the federal government.  Those landowners who have land with a high conservation value can be paid a fair price for their land to be put into conservation rather than be denied the ITP from the FWC and have few options.  Landowners whose land does not have a high conservation value can simply apply for a building permit (which the county would be authorized to give as the possessors of the ITP), pay a mitigation fee and retain the economic use of their land.

If an HCP is to be established at the county level there are economies of scale to be captured by including more than one species in the plan.  The FWS does not limit the species that can be included in an HCP; threatened species, species of concern or other species endemic to the same habitat can all be included.  Including as many species as possible has an advantage to whoever administers the HCP because it precludes the need to apply for a new ITP should any of the included species become endangered.  The FWS has also included a “No Surprises” rule.  This rule states that as long as an HCP is being properly administered, the FWS cannot require more land or money from the permit holder should there be unforeseen circumstances regarding the state of the species concerned.  This rule was established to give landowners confidence in the HCP process and the incentive to participate.

To date the ITPs and HCPs issued by the FWS range widely in the number of species covered, the duration of the permit and the acreage involved.  However, in recent years large scale plan developed by governments have become more common.  However, many counties are not developing HCPs because of the seemingly prohibitive upfront costs, most of which are a result of obtainign the necessary data for the plan, i.e. surveys of listed species, evaluations of potential habitat. However, Fishkind and Associates found, in the economic analysis of an HCP for Brevard County, Florida, that the long term cost of uncoordinated development is higher than for developing a county-wide plan.  This analysis included biological assessments, mitigation costs, legal costs, time costs and permit application costs.  The cost of developing and implementing an HCP does not have to be borne solely by the community.  There are a number of grants established to help offset these costs.  The table below describes two such grants that are administered by the Cooperative Endangered Species Conservation Fund.  Additionally, most HCPs incorporate a development mitigation fee for those landowners who wish to develop under the county’s ITP.  This mitigation fee helps to offset the cost of implementation of the HCP.

Source: http://www.fws.gov/endangered/grants/section6/index.html

The primary benefit of developing an HCP is to provide a compromise between the public’s conservation goals and private landowner rights to make economic use of their property.  Some of the criticisms of the this approach are that there is limited opportunity for public input, that the plans are based on faulty science and that the “No Surprises” rule benefits the developers too much. 

It is true that in the case of an individual landowner developing an HCP with the FWC there is no provision to force the landowner to allow public comment until the HCP has been submitted to the FWC and notice has been posted in the Federal Register.  However, when the entity developing the HCP is public, such as a city, county or state government there is likely to be more opportunity for public access to the process because of open meeting laws.  Often, in the development phase, an advisory team made up of community representatives and local stakeholders work with the landowner or county and the FWS to determine the terms of the HCP.  This process certainly allows for significant input from those affected by the HCP.  Also, if it is a big enough area to require NEPA review (which most HCPs at the city, county or state level would be) there is a public review requirement to the NEPA process. 

While some HCPs may have been developed based on inaccurate science that is not the norm with these plans.  Truly, the plan is only as good as the science that is behind it and that should be the incentive for public entities to fund the best science as possible to back up their plans.  The adoption of the Addendum to the Handbook was in part a reaction to criticisms of the science underlying these plans.  The FWS includes adaptive management and specific biological goals and policies as requirements in the plans now to accommodate some uncertainty that will always underly planning.

The “No Surprises” rule only protects permit holders from “unforeseen circumstances,” not from projected possible changes to the status of a listed animal.  Therefore, if the plan is based on accurate science and there is a deterioration in the condition of the listed species that does not fall into the “unforeseen” category, then the permit holder will have to accommodate the new information.  Also, the main benefit of developing countywide HCPs is to reduce any deterioration in the status of the species through the creation of regional reserves.  Along with adaptive management techniques, this regional approach ought to reduce the occurrence of “unforeseen circumstances.”

The development of the HCP and the issuance of the ITP are not the end of the process for development in the habitat of endangered species.  As part of the HCP there is a significant monitoring and reporting requirement of the HCP process.  Collecting data not only helps determine if each HCP is functioning properly, it helps better craft the next HCP.  If the FWS determines that the conditions of the ITP and HCP are being violated it can revoke or suspend the permit in which case all activity must stop as it is no longer permitted.

 For a detailed look at the development of selected HCPs please see http://www.ncedr.org/casestudies/hcp.html.

Resources:

Audobon. (n.d.) A Citizen’s Guide to Habitat Conservation Plans. Retrieved on June 4, 2007 from http://www.audubon.org/campaign/esa/hcp-guide.html.

Beatley, T. (1994). Habitat Conservation Planning: Endangered Species and Urban Growth. Austin, TX: University of Texas Press.

Brevard Scrub Conservation and Development Plan Workshop, February 28, 1995 Retrieved on June 4, 2007 from www.co.collier.fl.us/Modules/ShowDocument.aspx?documentid=9925.

Duerkson, C.J., Elliott, D.L., Hobbs, N.T., Johnson, E. & Miller, J.R. (1997). Habitat Protection Planning: Where the Wild Things Are. Chicago, IL: The American Planning Association

National Center for Environmental Decision-making Research. (1998). Improving Integrated Natural Resource Planning: Habitat Conservation Plans. Retrieved on June 4, 2007 from http://www.ncedr.org/casestudies/hcp.html.

USFWS. (2005). Habitat Conservation Plans: Section 10 of the Endangered Species Act. Retrieved on June 4, 2007 from http://www.fws.gov/endangered/hcp/HCP_Incidental_Take.pdf.

USFWS. (n.d). U.S. Fish and Wildlife Service’s Response to AIBS/NCEAS’s Study. Retreived on June 4, 2007 from http://www.fws.gov/endangered/hcp/response.htm.

USFWS & NOAA (2000). Addendum to the HCP Handbook; Executive Summary. Retrieved on June 4, 2007 from http://www.fws.gov/endangered/hcp/executive_summary.pdf.