The HCP* Approach

Of the various protections granted to species listed under the Endangered Species Act (ESA), the prohibition against "take" is one of the most fundamental. The ESA defines take as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" any species* federally listed as endangered or threatened. This definition includes, in certain cases, destruction or modification of endangered species habitat.

Until 1982, there was no mechanism under the ESA to permit the take of listed species that might occur inadvertently during development or other activities by private landowners. In that year, Congress amended section 10(a)(1)(B) of the ESA to allow issuance of "incidental take" permits authorizing take that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." This change led to one of the most important and ambitious programs under the ESA--the habitat conservation planning process.

Of course, one cannot simply ask for and receive an incidental take permit. An applicant must first prepare and submit for approval a "conservation plan" detailing, among other things, what the effects of the taking on the species will be and how those effects will be mitigated. Now called Habitat Conservation Plans or simply "HCPs," these plans are central to the entire section 10(a)(1)(B) process. Indeed, HCPs have come to symbolize a fundamental approach to resolving endangered species issues on non-Federal lands.

The HCP process is more than just a permitting mechanism, but a program that, at its best, can integrate development activities with endangered species conservation, provide a framework for broad-based conservation planning, and foster a climate of cooperation between the public and private sectors. The HCP program got off to a slow start; between 1983 and 1989, only three HCPs were approved. The process evolved over time as the Fish and Wildlife Service and permit applicants adapted the approach for varying circumstances and learned from experience. Between 1990 and 1992, the program began picking up steam, and it is now accelerating rapidly. As of September 1995, over 100 HCPs had been approved and about 200 were in various stages of development.

One of the keys to the HCP process is its flexibility. HCPs vary enormously in size and scope. To date, most of the completed HCPs have been for relatively small projects, but the number of regional-scale planning efforts is growing. Another key is creativity. The ESA and its regulations establish basic biological and procedural standards for the program but otherwise allow the creative potential of willing HCP participants to flourish.

The HCP process is far from perfect. Resolving the many issues involved in large or logistically complex HCPs can be an arduous task, often taking years. Once the HCP is completed, processing the permit application also can be difficult and time-consuming, involving publication in the Federal Register, a mandatory public comment period, National Environmental Policy Act (NEPA) compliance, and ESA review requirements.

But the benefits of a successful HCP effort far outweigh the costs, and the Fish and Wildlife Service is attempting to improve and streamline permit processing requirements. Not surprisingly, the HCP process is now receiving a lot of attention. Non-Federal agencies and the private sector throughout the country are turning increasingly to the HCP process as a means of conserving endangered species habitat in their areas while meeting their growing social and economic needs.