Habitat conservation plans as recovery vehicles: jump-starting the Endangered Species Act.

• Author: Tasso, Jon P.

I.

INTRODUCTION

Few laws have fallen as short of their goals as the Endangered Species Act ("ESA").(1) The ESA, the "pit-bull" of environmental legislation,(2) seeks to "conserve" species.(3) In a narrow sense, the ESA has successfully "conserved" some species by delaying their otherwise imminent extinction.(4) However, one of the ESA's broader goals -- the recovery of listed species -- has gone unmet.(5) In the ESA's nearly three decade existence, the Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service ("NMFS") - the federal agencies with primary responsibility for implementing the ESA - have listed over seven hundred species as "endangered" or "threatened."(6) But the agencies have de-listed only six species for recovery.(7) If recovery is the ESA's ultimate objective, the Act has failed miserably.

Political opposition to the Act's restrictive effect on land development, meanwhile, has mushroomed.(8) Since the early 1980's, private landowners have felt the impact of [subsections] 9 of the ESA.(9) Section 9 prevents landowners from unlawfully "taking" endangered species.(10) Organized groups representing private landowners are now lobbying Congress for an amendment to the ESA requiring the government to compensate landowners whose property is rendered less valuable because of the Act.(11) Many environmental groups are concerned about the impact of these efforts on the Act's on-going, and often stalled, reauthorization process.(12)

Meanwhile, in the current political climate, the prospect of strengthening the ESA by amendment is nearly unthinkable. However, the FWS can initiate reforms without further statutory authorization that could improve the recovery prospects of many listed species. This Article suggests that by consistently demanding stringent mitigation measures in high acreage, or regional, habitat conservation plans ("HCPs"), the FWS could significantly further the recovery of many listed species. Frequently drafted by interested landowners and local government entities, HCPs are legally binding plans that specify, in part, those measures a party must take to minimize the impacts of its proposed actions on a listed species. Section 10 of the ESA allows the FWS to issue an incidental take permit if an applicant's HCP would not reduce appreciably the likelihood of the listed species' "survival" and "recovery."(13) An incidental take permit typically allows the permittee to develop some portion of a listed species' habitat in exchange for the permitee's setting aside of other habitat and engaging in other protective measures.(14)

The legal key to expansion of the HCP is to interpret "survival" and "recovery" in 16 U.S.C. [subsections] 1538 as synonymous terms. The FWS currently interprets "survival" and "recovery" chronologically.(15) To the FWS, "survival" refers to a species' short-termpersistence, and "recovery," to long-term persistence. Instead, the FWS should interpret "survival" and "recovery" as involving the same goal: the long-term persistence of a listed species. This alternative interpretation is consistent with the science of conservation biology.

FWS implementation of this Article's recommendation would result, through the formulation and implementation of regional HCPs, in the establishment of large habitat preserves and the adoption of other recovery-promoting practices. Thoughtfully delineated habitat preserves, together with other species-specific management actions, are crucial to the recovery prospects of most species.(16)

Part I of this Article briefly describes the statutory foundation for HCPs and explains how the FWS has implemented this statutory scheme. Part II discusses the statutory foundation for recovery planning and explains how the FWS has implemented the recovery mandate. Part III discusses how recovery plan implementation and HCP formation can be integrated, and rebuts possible legal challenges to this proposed integration. Part IV illustrates the integration of recovery planning and HCP formation through Washington County, Utah's efforts to create an HCP for Gopherus agassizii, the desert tortoise.

II.

THE FWS APPROACH TO HCPs

1. The Statutory Basis for HCPs

   1. The ESA's Anti-"Take" Provision

      Private landowners whose property contains listed species habitat would not develop HCPs absent [subsections] 9 of the ESA. Section 9(a)(1)(B) makes it unlawful for any person to "take any such [listed] species within the United States...."(17) This section impacts a wide range of activity on private land, ranging from killing a listed species, to the clearing of listed species habitat for development purposes.

      Section 3(19) of the ESA defines "take" to include "harm." In 1985, the FWS promulgated a regulation that defined "harm" to include habitat modification: "[`harm' means] an act which actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering."(18) In Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, the Supreme Court upheld the FWS' broad interpretation of "harm."(19) Sweet Home established that landowners who destroy listed species habitat are subject to the ESA's civil and criminal penalties.(20)

   2. The [subsections] 10 Exemption for Non-federal Landowners

      Many landowners willfully develop listed species habitat in violation of the law.(21) The ESA's criminal and civil threats are often not credible deterrents. The FWS often knows the habitat of a listed species, but can rarely identify the exact tracts of land that qualify as habitat.(22) Few FWS officials are available to monitor landowner compliance with the ESA.(23) Moreover, environmental groups lack the resources necessary to monitor all the landowners that own listed species habitat.(24)

      Many landowners, however, choose to obey the law.(25) Some landowners recognize that environmental groups know their land is listed species habitat. Others merely want a clear conscience. The ESA provides a vehicle by which a law-abiding landowner can develop some of his or her habitat: a [subsections] 10 incidental take permit. A [subsections] 10 permit typically grants a limited privilege to develop.(26)

      For those committed to developing their property, an incidental take permit is often a landowner's only lawful choice.(27) The landowner willing to pursue the long and frequently difficult process of obtaining an incidental take permit will often be able to develop his or her land.(28)

      Section 10(a)(1)(B) authorizes the FWS to issue a permit allowing "any taking ... if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."(29) This permit is generally known as an "incidental take" permit. A landowner who wanted, for example, to build a shopping center or private dwelling on listed species habitat would claim that his or her activity fell within [subsections] 10(a)(1)(B) permit criteria; the development's purpose would not be the destruction of the habitat. Any impact on the listed species would therefore be "incidental."

      Section 10 outlines the conditions under which the FWS can issue an "incidental take" permit. The permittee, as part of the permit application, must submit a "conservation plan" (referred to generally as a "habitat conservation plan").(30) This plan must specify "the impact which will likely result from such taking, ... the steps the applicant will take to minimize and mitigate such impacts, ... the funding that will be available to implement such steps, ..." as well as alternatives considered and the reasons for the alternatives' rejection, and any other measures required by the FWS.(31) The FWS is required to issue the permit if it finds that:

      [T]he taking will be incidental, ... the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking, ... the applicant will ensure that adequate funding for the plan will be provided, ... the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild ... [and that] any other measures [required by the FWS are [satisfied].(32) The requirement that an incidental take permit not "appreciably reduce the likelihood of the survival and recovery of the species in the wild"(33) is of central concern to this Article. This Article recommends a reinterpretation of this language, consistent with conservation biology.

      The purpose of the mitigation and funding requirements for acceptable HCPs is to minimize the negative consequences of an "incidental take."(34) Mitigation, at least for regional HCPs, invariably includes protecting some habitat from development.(35) Often, mitigation involves fencing the newly created habitat reserve and providing enforcement officers to protect the reserve.(36) HCPs may contain other mitigation strategies unique to the circumstances.(37)

      For the FWS to approve an HCP, HCP proponents must convince the agency that the HCP will be adequately funded for its duration.(38) Funding sources may vary, and include specially earmarked state and federal appropriations.(39) Often, however, private landowners and local government entities fund HCPs through development taxes.(40)

2. FWS Understanding of HCPs

   The FWS is currently committed to a habitat conservation planning model that prevents HCPs from serving as effective species recovery vehicles. Instead, the FWS has modeled its approach to species "survival" and "recovery" under [subsections] 10(a)(2)(B)(iv) on similar language in regulations promulgated under [subsections] 7.(41) Section 7 of the ESA allows a federal agency to approve a course of action if that action "is not likely to jeopardize the continued existence of any endangered species or threatened species."(42) An FWS regulation defines "jeopardize the continued existence of" as "engag[ing] in an action that reasonably would be expected ... to reduce appreciably the likelihood of both...