Nature and Values of HCPs
HCPs provide for incidental take permits
A common misconception regarding the federal Endangered Species Act (ESA) is that the presence of a listed species will preclude a landowners private property rights. However the ESA does in fact provide a permitting mechanism to allow private landowners to develop their property. Any landowner engaged in otherwise lawful activities, such as building commercial or residential structures, farming or ranching, etc., may apply for an Incidental Take Permit (ITP) from the U.S. Fish and Wildlife Service (FWS). “Incidental take” means that the take is incidental to the economic activity, rather than the purpose of that activity. (16 USC 1531 Section 10(A)(1)(B).).
The ESA defines “take” as “to harass, harm, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” (16 USC 1531 Section 3(18). Regulations further define “harm” as to include significant habitat modification that may kill or injure listed species through impairment of essential behaviors, in short, the ability to breed, feed, and shelter. (50 CFR 17.3) (This “harm” definition was upheld by the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2418, 1995). Any non‑federal landowner who receives an ITP may proceed with their otherwise legal activity, which may result in take.
A major requirement of the ITP application is the development of a Habitat Conservation Plan (HCP). An HCP outlines the actions the permittee will implement to minimize and mitigate the take associated with the project. To meet the permit criteria, the applicant must 1) demonstrate the take will be incidental, 2) ensure that any take will be minimized and mitigated to the maximum extent practicable, 3) demonstrate an appropriate funding source is available for the life of the permit, 4) show that take will not reduce the survival and recovery of the covered species, and 5) take any further measures deemed necessary by the Secretary of the Interior (16 USC 1531 Section 10(A)(2)(a) ).
The HCP, in addition to legally allowing an applicant to develop their property and utilize their property rights, also gives regulatory certainty against further regulatory burden should unforeseen circumstance affect the covered species. (50 CFR 17.22(b)(5) and 17.32(b)(5) ) This “no surprises” clause insulates the permittee from further restrictions or added compensation. The FWS will honor these regulatory assurances for the life of the permit provided the terms and requirements of the HCP are upheld.
In short, an HCP is a road map, which sets up a framework that allows a landowner to use their property while fully addressing the conservation actions needed to ensure the long-term survival of a listed species likely to be affected by the proposed project.
Scale of HCPs
The majority of approved HCPs are very small, just a few acres or less, and provide for a single project such as a small housing development. Our coalition is primarily focused on large scale HCPs, which range from the watershed or county scale to multi-state in size.
Economic value of HCPs
An HCP provides streamed permitting for the economic activities covered by the plan. Many large-scale HCPs cover urban and suburban development, including housing, commercial structures and infrastructure. Others cover wind or solar energy; forest management and timber harvesting; riparian, aquatic and water supply; highway maintenance, transmission lines and gas pipelines and other economic activities.
With an HCP in place rapid permitting of individual covered projects, usually within no more than a few weeks or months is realized. This streamlining expedites:
- construction jobs and construction-related activity;
- wages spent in the local economy;
- tax revenue from wages and purchase of building materials
Long term benefits include an increase in housing, jobs, overall economic activity, and increased tax revenue.
The permitting certainty that HCPs provide can be the deciding factor in whether or not a project moves forward – and therefore whether an area sees new jobs, tax revenue and economic growth.
Because a regional HCP is a master permit, it eliminates the need for the U.S. Fish and Wildlife Service to process numerous individual project permits, saving staff time and tax dollars.
When a regional HCP covers impacts to wetlands or other aquatic resources, it may be coupled with regional scale permitting under the federal Clean Water Act. This “one stop shopping” provides additional permit streamlining for regional infrastructure projects covered by the plan. These can include highway expansion and maintenance, expansion of mass transit routes, flood control, transmission lines and gas pipelines. An HCP can provide permitting of an infrastructure project in a few weeks, which without an HCP in place can take months or years. See success story West Riverside County Infrastructure Benefits
The biological values of an HCP
A large-scale HCP may cover the incidental take and conservation of a single species. But many cover a number of species. These may include species that are not yet listed under the ESA but which are declining and in trouble. These multi-species HCPs in particular can provide a wide range of biological values. Where the economic activities have permanent impacts, such as conversion of natural habitat to an urban or suburban development, the HCP provides for establishment of a permanent reserve system under a single conservation strategy. This allows assembly of large habitat reserves and the protection wildlife corridors linking reserves or connecting reserves to other protected lands. Without a large-scale HCP, habitat protection often occurs in a piece-meal fashion, creating small preserves that will degrade over time. Also a large-scale HCP provides unified, permanent management, monitoring and adaptive management for the preserve system.