Habitat Conservation Plans and Climate Change: Recommendations for Policy

• Date: 01 September 2015

9-2015 NEWS & ANALYSIS 45 ELR 10863

A R T I C L E S

Habitat

Conservation

Plans and

Climate Change:

Recommendations

for Policy

by Melinda Taylor and Holly Doremus

Melinda Taylor is Senior Lecturer and Executive Director

at the Kay Bailey Hutchison Center for Energy, Law,

and Business of the University of Texas at Austin.

Holly Doremus is James H. House and Hiram H.

Hurd Professor of Environmental Regulation and Co-

Faculty Director of the Center for Law, Energy, and the

Environment at the University of California, Berkeley.

Summary

Habitat conservation plans (HCPs) are critical tools

for managing species and their habitats. Climate

change poses special challenges for successful habi-

tat conservation planning, but there are several steps

to take to address these challenges. Key provisions

in government regulations and guidance are at odds

with considering climate change in HCPs, and revi-

sions are recommended, including reliance on adap-

tive management. By looking to these recommended

best practices, habitat conservation planning can be

strengthened not only to address climate change, but

to better reect the changing context and environ-

ment in which HCPs must be implemented.

I. Introduction

e rst habitat conservation plan (HCP)—the San Bruno

Mountain HCP, covering 3,500 acres in California—was

approved by the U.S. Fish and Wildlife Service (FWS)

in 1986. Since then, approximately 690 HCPs have been

approved by FWS and the National Marine Fisheries Ser-

vice (NMFS, collectively, the Services).1 HCPs cover over

80 million acres of land with diverse habitats, including

Florida scrub, long leaf pine, limestone karst, Southwest

desert, and old growth timber. e vast majority of HCPs

have been approved since January 1998, a reection of the

success of policies, developed during the William Clinton

Administration and rened during the George W. Bush

Administration, that were designed to provide incentives for

landowners to protect rare habitats. e Services published

their “Habitat Conservation Planning and Incidental Take

Permit Processing Handbook” in 1996, and an addendum

to the HCP Ha ndbook in 2000. e Handbook provides

guidance to the Services on the processing of HCPs, to

applicants preparing HCPs and navigating through the

regulatory process, and to interested stakeholders.

Climate change is not mentioned in the Enda ngered

Species Act (ESA),2 its implementing regulations, or

the HCP Handbook. e impact of climate change on

threatened a nd endangered species and their habitats was

not considered by the U.S. Congress when t he E SA was

enacted, or by the Services when the regulations were pro-

mulgated and t he Handbook was written. But it is appa r-

ent today that cl imate change is having an impact on  sh

and wildlife a nd, even if aggressive m itigation strategies

are implemented in the nea r term, will continue to aec t

natural systems for decades to come. Recognizing this,

the Ser vices have publi shed reports, st udies, and policies

that highlight the importance of incorporating climate

change eects into conservation strategies, pursuant to

the U.S. Department of the Interior’s Climate Change

Adaptation Plan.3

1. More information on the HCP program developed and administered by

FWS and NMFS is available at Environmental Conservation Online System

(ECOS),

http://ecos.fws.gov/conserv_plans/PlanReport.

2. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

3. See, e.g., U.S. FWS, C M F: S P-

  A U  N R C

(2014), available at www.fws.gov/home/climatechange/pdf/scenario-plan-

ning-report.pdf; U.S. D’   I (DOI), C C

A P (2014), available at http://www.doi.gov/greening/sus-



       

contributions to this Article. We also thank our terric research

assistants: Ian Fein, Elizabeth Hundt, and Ryan Trahan. Finally,

         

the Berkeley Law Climate and Energy Policy Institute and the



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