CHAPTER 7 MAKING THE MOST OF THE HABITAT CONSERVATION PLANNING PROCESS

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 7
MAKING THE MOST OF THE HABITAT CONSERVATION PLANNING PROCESS
W. Parker Moore
Principal
Beveridge & Diamond, PC
Washington, D.C.

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PARKER MOORE - Principal, Beveridge & Diamond P.C. (Washington, D.C.) As Co-Chair of B&D's Natural Resources and Project Development practice group and the Firm's NEPA, Wetlands and ESA Section, Parker focuses his practice on successful project development and regulatory compliance. Parker has helped clients across the country overcome complicated federal permitting and authorization obstacles for major projects, create bulletproof administrative records, and defend their projects against citizen suits. The Endangered Species Act and other federal wildlife protection laws are a cornerstone of Parker's practice. He has advised clients on ESA issues arising in every state except Maine, Hawaii, and Rhode Island. His active ESA matters include serving as counsel to a coalition of ten upstream and midstream oil and natural gas companies in developing a multi-state, multi-species habitat conservation plan - one of the largest in ESA history - that will provide the companies with a 50-year incidental take permit for five bat species; counseling energy industry clients in the development of a nationwide candidate conservation agreement with assurances for the monarch butterfly; developing a programmatic Section 7 consultation agreement between the USFWS and USACE to streamline consultations for the oil and gas industry for projects in West Virginia requiring CWA nationwide permits; and advising the developers of several FERC-jurisdictional pipelines on strategies for ensuring defensible Section 7 consultations.

I. INTRODUCTION

The Endangered Species Act (ESA) prohibits unauthorized take of listed wildlife species and imposes significant civil and criminal penalties for violations.¹ The statute defines "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."² While unfortunately some unauthorized take of listed species is intentional, far more frequently unauthorized take occurs that is an unintended consequence of, rather than the purpose of, an otherwise lawful activity, such as residential, commercial or industrial development, timber activities, and infrastructure projects.³ This take is known as "incidental take."⁴ Before 1982, the regulated community had few options for complying with the ESA when pursuing activities and developing projects that posed a risk of incidental take. This put individuals and companies in the unenviable position of curtailing their activities, oftentimes dramatically affecting their livelihoods, or altogether scuttling projects to avoid the risk of taking listed species.⁵ Although this achieved the goal of reducing unauthorized take of threatened and endangered species, it did nothing to provide an affirmative conservation benefit that could help put those species on the road to recovery.

Fortunately, Congress realized that there was a better way - one that could promote species conservation without unnecessarily impeding important economic activities. In 1982, Congress added Section 10 to the ESA to allow the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services), the agencies charged with implementing and enforcing the ESA, to issue incidental take permits upon receipt of a habitat conservation plan meeting prescribed criteria. Through Section 10, Congress established an important tool to help the Services accomplish the goals of the ESA by buttressing species protection with affirmative conservation measures and simultaneously providing a practical option for stakeholders who engage in potentially impactful activities in areas where at-risk species live.⁶ That tool is the habitat conservation plan (HCP), and it can be quite valuable to imperiled species and the regulated community alike when designed and implemented strategically.

II. SECTION 10 OF THE ENDANGERED SPECIES ACT: HABITAT CONSERVATION PLANS

A. What is an HCP and Why is it Helpful?

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Under Section 10 of the ESA, Congress provides a mechanism under which parties engaging in activities that they believe could cause incidental take of listed species may voluntarily obtain authorization for that impact. That is done by developing a habitat conservation plan and applying for an incidental take permit (ITP).⁷ An HCP is a detailed plan describing the otherwise lawful activities that may cause incidental take, assessing the impacts of that take, and establishing measures to minimize, mitigate, and monitor the take that occurs.⁸ To obtain incidental take authorization under this process, applicants must submit an HCP with an ITP application to FWS or NMFS.⁹ If the HCP and ITP application meet the requirements of Section 10 and the Services' implementing regulations, FWS or NMFS must issue an ITP to the applicant.¹⁰

Unless a party has received incidental take authorization, they must conduct their activities in a manner that avoids impacts to listed species, or they risk exposure to an ESA enforcement action. When dealing with threatened and endangered species, this can be easier said than done. Listed species, by definition, are not prevalent.¹¹ Many are not well known. And they can be hard to detect or identify. This can make it exceedingly difficult for landowners and other stakeholders to plan and conduct their activities in a manner that is certain to avoid unauthorized incidental take, which drives up costs and delays scheduled. This is where HCPs and ITPs come in. They offer certainty to the regulated community by helping participants comply with the ESA by authorizing incidental take and establishing specific conditions on doing so. That in turn allows participants to better predict and manage the costs and schedules associated with their activities and projects.¹²

B. HCP Requirements

While all HCPs have the same overarching purpose - to advance the goals of the ESA by helping to protect and recover listed species - each plan is unique. But every HCP must satisfy the same criteria to meet the requirements of Section 10: (1) specify the impact likely to result from the taking; (2) identify the steps that the applicant will take to "minimize and mitigate such impacts," including information on the funding that will be used to carry out those steps; (3) describe the alternative actions to the taking that the applicant considered and why one or more of those alternatives is not being pursued instead; and (4) provide any other measures that the Services might require as "necessary or appropriate for the purposes the plan."¹³

The ESA then provides that the Services shall issue an ITP to the applicant after public comment if the HCP demonstrates the following:

(i) [T]he taking will be incidental; (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (iii) the applicant

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will ensure that adequate funding for the plan will be provided; (iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and (v) the measures, if any, required under subparagraph (A)(iv) will be met; and [the Secretary] has received such other assurances as he may require that the plan will be implemented. ¹⁴

In addition to these statutory criteria, the Services' implementing regulations and their non-binding Habitat Conservation Planning Handbook elaborate on the requirements of the HCP process and the Services' procedures for carrying it out.¹⁵

C. Core Decisions in HCP Development

Although participation in the HCP program can be extremely valuable, it can be a daunting process that is expensive and frequently takes years to complete. Small-scale HCPs covering a single species in a confined area for a short time period might be completed in less than a year for a cost of around $200,000, but large HCPs covering multiple species over a large area for 25 or more years easily can take five years and cost millions of dollars just to develop. As a result, it is crucial for those considering engaging in the HCP process to carefully consider the costs and benefits of doing so and, if they decide to proceed, to develop a plan that is narrowly focused to achieving their goals.

1. Who Should Develop an HCP?

No one is required to develop an HCP.¹⁶ The ESA does not impose any affirmative requirements on the regulated community, and the Services are not authorized to approve or deny proposed projects and other private activities.¹⁷ Rather, the ESA prohibits the unauthorized take of listed species and puts the onus on individuals and companies to comply with that prohibition.¹⁸ That means that parties engaged in activities that could affect listed species must either modify those activities to avoid unauthorized take, or if take cannot be avoided, obtain a permit authorizing incidental take to avoid potential exposure to ESA liability.¹⁹ HCPs are the mechanism that the ESA provides for obtaining authorization to cause incidental take of listed species when conducting otherwise lawful activities.²⁰ As a result, parties who conduct activities that are likely to impact listed species should consider developing an HCP if those activities cannot reasonably be modified to avoid take while still accomplishing the parties' respective objectives.

2. Covered Species

A fundamental decision when pursuing an HCP is choosing which species to cover under the plan. Covered species are those for which the applicant proposes to receive incidental take

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authorization. If a protected species is not included in the HCP and ITP and it is subsequently taken, the applicant faces exposure to prosecution under the ESA for unauthorized take.²¹ To determine if proposed activities are likely to take a...