CHAPTER 9 HABITAT CONSERVATION PLANNING IN THE BABBITT INTERIOR DEPARTMENT—ENVIRONMENTAL SALVATION OR LANDOWNER GIVEAWAY?1
| Jurisdiction | United States |
(Nov 1997)
HABITAT CONSERVATION PLANNING IN THE BABBITT INTERIOR DEPARTMENT—ENVIRONMENTAL SALVATION OR LANDOWNER GIVEAWAY?1
Nossaman, Guthner, Knox & Elliott, LLP
Irvine, California
I. SUMMARY OF HABITAT CONSERVATION PLANNING PROVISIONS OF ENDANGERED SPECIES ACT AND EMERGING INNOVATIONS.
Section 10(a) of the Endangered Species Act2 (ESA) authorizes the Secretaries of Interior and Commerce to issue permits allowing the "incidental take" of endangered and threatened species. To obtain a Section 10(a) permit, the applicant is required to prepare a habitat conservation plan ("HCP") specifying (i) the impacts of the taking, (ii) steps to minimize the impacts, and (iii) alternatives to the proposed taking.
The ESA provides broad authority to the U.S. Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service (NMFS) to approve HCPs that reconcile conflicts between development activities and the conservation of endangered species and their habitat. Given the decision of the Supreme Court in Babbitt v. Sweet Home Chapter of Communities3 (upholding the definition of "harm" in the Endangered Species Act regulations to include habitat modification), Section 10(a) is likely to play an
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increasingly prominent role in the resolution of conflicts between the development and the environmental communities.
Although enacted in 1982, Section 10(a) received scant attention outside of the State of California4 until the appointment of Bruce Babbitt as Secretary of the Interior. Secretary Babbitt and the Clinton Administration have made habitat conversation planning a centerpiece of the Administration's ESA administrative reforms. The reforms include the "No Surprises" policy, candidate conservation agreements, the "safe harbor" policy, and various other measures to encourage landowners to participate in habitat conservation planning. Secretary Babbitt's initiatives have exceeded beyond anyone's wildest dreams. 400 HCPs have either been approved or are under development. In sharp contract to the HCPs proposed prior to the Babbitt reforms, many of the HCPs now underway address large areas of land and the habitat of hundreds of species. Beginning in the early 1990's, landowners and local governments initiated so-called "habitat-based" HCPs. These new form of HCPs attempt to move away from the "species-by-species" approach of the early HCPs and resolve conflicts with development activities through an ecosystem or habitat-based approach. Attachment 1 graphically depicts the planning areas of the approved or ongoing HCPs in the three western states. Collectively, these plans will address tens of millions of acres of land and the habitat of hundreds of endangered or threatened species.
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It is now widely accepted that habitat conservation plans are essential if the goals of the ESA are to be achieved. The National Academy of Sciences has commented favorably on HCPs because such regional conservation approaches are more consistent with principles of conservation biology than project-by-project, species-by-species regulatory approaches.5 The former general counsel of the National Wildlife Federation has also recently documented the conservation benefits that are being realized through HCP planning efforts.6 The National Academy of Sciences has identified six tenets of conservation biology:
1. Species well distributed across their range are less susceptible to extinction than species confined to small portions of their range.
2. Large blocks of habitat containing large populations of a target species are superior to small blocks of habitat containing small populations.
3. Blocks of habitat that are close together are better than blocks far apart.
4. Habitat that occurs in blocks that are less fragmented internally is preferable to habitat that is internally fragmented.
5. Interconnected blocks of habitat serve conservation purposes better than isolated blocks, and habitat corridors or linkages function better when the habitat within them resembles habitat that is preferred by target species.
6. Blocks of habitat that are roadless or otherwise
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inaccessible to humans are better than roaded and accessible habitat blocks.7
The record of the last twenty years under the ESA strongly indicates that tenets are more likely to be achieved through regional conservation planning efforts than through project-by-project, species-by-species approaches.8 This is the case because it is only through comprehensive, regional conservation programs that entire ecological systems can be effectively conserved.
Section 10(a) is a now the primary regulatory mechanism under the ESA for permitting the incidental take of federally-listed endangered and threatened species on private property. Although the consultation process of Section 7 of the ESA9 also provides a mechanism for permitting incidental take, the Section 7 process is only available where there is a federal "agency action."10 For most private development activity, no federal agency action is available to trigger the Section 7 consultation process.
Initially, the environmental community cautiously endorsed the notion of regional planning to conserve endangered species habitat and resolve conflicts with
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development.11 The endorsement appeared to be driven by a desire to undercut the political assault on the ESA mounted in the 104th Congress by property rights advocates as well as by a sincere realization that the traditional regulatory mechanisms of the ESA could not address effectively the immense challenge of habitat conservation on private land. As the environmental community has reminded us:
More than half of the species in the U.S. that are protected by the Act have at least 81 percent of their habitat on non-federal land. Between a third and a half of the protected species do not occur at all on federal land. Based on data compiled by the Fish and Wildlife Service and the General Accounting Office, endangered species on private land appear to be faring much worse than their counterparts on federal land.12
Having survived the 104th Congress, certain segments of the environmental community — including groups that previously endorsed multi-species conservation planning — are increasingly critical of HCPs and Secretary Babbitt's administrative reforms. A coalition of environmental groups challenged the "No Surprises" policy under the ESA and the Administrative Procedure Act.13 Sixty day notices to file lawsuits challenging several approved HCPs in Southern California have been filed. Challenges to pending HCPs in other parts of the west are very likely.
A number of innovations have emerged in recent years in the HCP process including the following:
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1. The emergence of multi-landowner regional habitat conservation plans;
2. The development of multi-species and "habitat-based" conservation plans;
3. The issuance of the "no surprises" policy by Secretary Babbitt and the emergence of workable interpretations of the policy in several HCPs;
4. The use of free market mechanisms to conserve wildlife habitat; and
5. New funding sources.
Whether any of these new initiatives survive depends on the political debate unfolding in Washington over the Kempthorne/Chaffee ESA legislation and the Administration's proposed rule to codify the "No Surprises" policy. This paper describes legal background to habitat conservation planning, the state of the above innovations and the ongoing legal and policy debate on the innovations.
II. ORIGINS OF THE HCP CONCEPT.
Section 10(a) of the ESA grew out of a multi-year conflict between a proposed development project on San Bruno Mountain on the San Francisco Peninsula in Northern California and three species of endangered butterflies. In early 1976, the local board of supervisors required the landowner to dedicate two-thirds of the Mountain as a park in exchange for development approvals on the remainder of the Mountain. Two weeks after the final conveyance of the property to the state parks foundation, the FWS
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proposed to list the callippe silverspot butterfly as an endangered species and to designate critical habitat on the Mountain. The critical habitat proposal substantially overlapped all of the areas on the Mountain designated for development by the County.
The proposed listing initiated a three-year planning process involving the environmental community, the four landowners and developers, and local, state and federal agencies. After two years of intensive negotiation, the parties agreed on a habitat conservation plan which allowed the proposed development to proceed, but which also established a long-term program for the protection of the butterflies and several other species.
Despite the consensus between the landowner and the environmentalists concerning the plan's terms, the ESA did not include a provision authorizing the FWS to permit the incidental taking of the butterflies and their habitat contemplated by the conservation plan. In addition, having labored over one environmental controversy after another for over a decade, the landowner wanted assurances that once it agreed to the conservation plan the landowner would not be subject to additional or different regulations in the future to protect other species. As a result, in 1982 Congress amended the ESA to authorize the incidental take of endangered and threatened species in accordance with a habitat conservation plan.14 Significantly, Congress responded to the landowners request for long-term assurances by indicating that Section 10(a) is intended to provide "long-term commitments regarding the conservation of listed as well as
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unlisted species and long-term assurances to the proponent of the conservation plan that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in...
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