CHAPTER 4 COMPLEX PERMITS UNDER SECTION 10 OF THE ENDANGERED SPECIES ACT

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 4
COMPLEX PERMITS UNDER SECTION 10 OF THE ENDANGERED SPECIES ACT
David Zippin
Vice President
ICF International
San Francisco, California
Kathleen C. Schroder
Shareholder
Bjork Lindley Little PC
Denver, Colorado

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DAVID ZIPPIN is a vice president and the HCP practice leader for the consulting firm ICF International. Dr. Zippin has more than 25 years of experience in the preparation and implementation of large-scale multi-species programmatic habitat conservation plans (HCPs) and their environmental compliance documents under Section 10 of the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). Dr. Zippin also has extensive experience assisting clients in compliance with the state Endangered Species Acts, and the federal Bald and Golden Eagle Protection Act and wetland regulations under the Clean Water Act. Dr. Zippin has overseen, managed, or been part of the technical team for over 50 project and programmatic HCPs in 10 states for a wide variety of government agencies and industries including utilities, renewable energy, and oil & gas. For example, he is leading development of an HCP for American Electric Power in Oklahoma, Arkansas, and Texas for the American burying beetle; he supported the Desert Renewable Energy Conservation Plan in California; and he has been advising oil & gas companies in Wyoming on their ESA compliance options regarding the potential listing of the greater sage grouse. David teaches ESA compliance, habitat conservation planning for endangered species, and HCP implementation at the USFWS National Conservation Training Center outside Washington, DC and at university extension programs. He is the co-author of the award-winning book Understanding the Habitat Conservation Planning Process in California: A Guidebook for Project and Regional Conservation Planning. Dr. Zippin received a Ph.D. in biological sciences (conservation biology) from the University of Texas, Austin, and a B.A. in ecology, behavior, and evolution from the University of California, San Diego.

KATHLEEN C. SCHRODER is a shareholder in the law firm of Bjork Lindley Little PC, Denver, Colorado, where she focuses on public lands law and, in particular, oil and gas leasing and development on federal lands. Katie advises oil and gas operators on issues related to the National Environmental Policy Act, Endangered Species Act, and National Historic Preservation Act, as well as federal royalty matters. She serves as a Trustee to the Rocky Mountain Mineral Law Foundation on behalf of Western Energy Alliance and has authored several papers for the Foundation. She is a former Chair of the Public Land and Resources Committee of the American Bar Association's Section of Environment, Energy, and Resources and sits on the Board of Directors for Western Energy Alliance. Prior to joining Bjork Lindley Little PC, she served as an attorney-advisor in the Solicitor's Office of the U.S. Department of the Interior and as a clerk to Justice Alex J. Martinez of the Colorado Supreme Court. Katie received her law degree from the University of Colorado School of Law, where she was elected to membership in the Order of the Coif and was an articles editor for the University of Colorado Law Review. She holds a B.A. from Rice University.

I. Introduction

II. Background on Section 10 Permits

III. Structures of Section 10 Permits

A. Individual Permits

B. Programmatic or Master Permits with Certificates of Inclusion or Participation

1. Regulatory Basis for Programmatic Permits

2. Advantages to Programmatic Permits

3. Use of Programmatic Permits

C. General Conservation Plans

D. Primary Permit Conservation Plan

E. Jointly Held Permits and Co-Permittees

F. Mix-and-Match: Combinations of Permit Structures

IV. Considerations for Selecting a Permit Structure

A. Timing of Permit Approval

B. NEPA Analysis and Section 7 Consultation

C. Monitoring and Reporting Obligations

D. Effects on Confidentiality

V. Issues Surrounding Permit Compliance and Maintenance

A. Permit Obligations by Third Parties

1. Full Participation in a Permit or Conservation Plan

2. Full Compliance with a Jointly Held Permit

3. Compliance Obligations of the Holder of a Master Permit

B. Compliance Obligations of Individual Permittees and Participants

VI. Area Covered by Habitat Conservation Plans

A. What Area Should a Multi-Species Conservation Plan Cover?

B. Including Federal Land in Complex HCPs

VII. Which Species Should be Included in a Multi-Species HCP?

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VIII. Amount of Incidental Take Authorized by a Complex Permit

A. Amount of Incidental Take Authorized

B. Allocation of Authorized Incidental Take

IX. Conclusion

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I. Introduction

Section 10 of the Endangered Species Act (ESA) provides a seemingly straightforward mechanism to obtain permits authorizing the incidental take of listed species and permits authorizing the enhancement of their survival. Section 10 permits, however, can be anything but straightforward. Section 10 permits can cover thousands if not millions of acres, authorize incidental take by hundreds of actors, and apply to dozens of species. The most complex section 10 permits cover lands in states such as California, Florida, and Texas where most listed species occur and where urban development expanded rapidly in the last several decades. As the list of threatened and endangered species grows, land users in other parts of the country are expected to utilize more complex section 10 permits.

Complex section 10 permits are dynamic and can be structured to accommodate a wide variety of situations. One or more local governments can hold a section 10 permit to provide incidental take authorization to projects under their jurisdiction. A section 10 permit can cover a species' entire range, which may span multiple states. A habitat conservation plan that accompanies an incidental take permit issued pursuant to section 10(a)(1)(B) permit can cover dozens of species, both listed and not listed. A consortium of state governments can hold a section 10 permit that spans multiple states and covers dozens of species. The permutations of section 10 permits are endless.

Despite their complexity and abundance, little guidance exists on complex section 10 permits. Most guidance on section 10 permits is aimed at single-permittee conservation plans. Handbooks published by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, "the Services") contain limited guidance for programmatic permits--less than a page in the Services' Habitat Conservation Planning Handbook and three pages in the FWS's Draft Candidate Conservation Agreement with Assurances Handbook.¹ Other guidance exists, but it is more regional and not issued by the agencies.² Given the lack of formal guidance, this paper aims to provide insight on the development and use of complex section 10 permits.

First, this paper will provide background on section 10 permits, generally. Second, this paper will outline the different types of complex section 10 permit structures and identify some factors to consider when applications are selecting a type of permit structure. Third, this paper will identify issues associated with maintenance and compliance with complex permits. Fourth, this paper will detail considerations that should be taken into account when identifying the area to be covered by the section 10 permit. Fifth, this paper will outline considerations when determining which species to cover in a Habitat Conservation Plan (HCP) that accompanies an

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incidental take permit.³ Finally, this paper will explain how incidental take is authorized and allocated in section 10 permits.

II. Background on Section 10 Permits

Under section 10 of the ESA, the Services may issue a variety of permits, including permits "to enhance the propagation or survival" of a species. Additionally, the Services may issue permits that authorize the taking of listed fish and wildlife "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."⁴ The former are known as "enhancement of survival" permits and the latter are known as "incidental take permits."

Incidental take permits are the most common because they provide exceptions to the ESA's prohibition on take of listed fish and wildlife. The ESA sets forth criteria governing the issuance of incidental take permits. First, an incidental take permit may only be issued after preparation of a "conservation plan," now known as an HCP, that specifies: (1) "the impact which will likely result from such taking"; (2) steps "to minimize and mitigate" the impacts of the taking and "the funding that will be available to implement such steps"; (3) "what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized"; and (4) "such other measures that the Secretary [of the Interior or Commerce] may require as being necessary or appropriate for purposes of the plan."⁵ In addition to preparation of an HCP, the ESA requires the Services to make certain findings before issuing an incidental take permit.⁶ The Services have published a handbook governing the development of HCPs and issuance of incidental take permits.⁷ In January 2016, the FWS and NMFS are expected in January 2016 to publish a draft of the first major revision to the HCP Handbook since its publication in 1996.

The ESA does not impose similar statutory prescriptions on the issuance of enhancement of survival permits. Rather, the Services have released formal policies that establish the circumstances in which enhancement of survival permits are available.⁸ The Services will issue enhancement of survival permits to accompany Candidate Conservation Agreements with Assurances (CCAAs) and Safe Harbor Agreements (SHAs).⁹

CCAAs are...