Helping Our Peninsula's Environment

Copyright 2001 Tara Mueller, Attorney-at-Law

Background

The federal Endangered Species Act of 1973 (ESA), has been described as one of the most powerful environmental laws on the books. It is one of the few statutes that requires federal, state and local government entities and private persons to affirmatively avoid harming endangered and threatened species and their habitats. This duty is mandated in part through section 9 of the ESA, which prohibits any person from "taking," i.e. killing or otherwise harming, an endangered or threatened species. "Take" is explicitly defined to include destruction or modification of a species' habitat. Thus, as originally enacted, the ESA did not authorize take of species in connection with development and other land- disturbing activities. 

However, as a result of increased national growth and development, along with a growing list of endangered and threatened species, conflicts between human activities and endangered species, both real and perceived, steadily increased. This situation in turn increased the pressure to amend the ESA to allow it to more easily accommodate economic growth. Consequently, in the ESA reauthorization amendments of 1982, Congress amended the ESA to permit state and local government entities and private persons (including corporations) to "take" a listed species if "incidental to" otherwise lawful activities, such as land use development or resource extraction. 

The amendments provide that, as a condition of obtaining an "incidental take" permit, the applicant must prepare a habitat conservation plan (HCP) which specifies, among other things, the actions the applicant will take to minimize and mitigate any adverse impacts to the species and available funding to implement these measures. This permit will be issued if the Secretary of Commerce or the Interior finds that the impacts to the species have been minimized and mitigated to the "maximum extent practicable," that the anticipated take will not jeopardize the species' continued existence, and that funding will be sufficient to implement the HCP. 

At the time these amendments were enacted, many believed that the HCP procedure presented a "win-win" solution to endangered species conflicts: economic development could still occur, while at the same time endangered species' habitat would be preserved, enhanced and managed for the species' long-term benefit. Little utilized at first, the habitat conservation planning process has accelerated steadily over the years. At the onset of the Clinton Administration, only 14 HCPs had been approved; today, however, over 320 HCPs have been approved or are being considered for approval. The size and scale of the HCPs is also increasing, with a clear trend towards regional, multi-species plans involving thousands or hundreds of thousands of acres and hundreds of species. This trend is no doubt in part due to Secretary Babbitt's notorious recent "no surprises" policy, which essentially insulates HCP applicants from any further mitigation requirements for listed and unlisted species purportedly "covered" by an HCP. 

HCP Status Report: Where Are We Today? 

Nearly fifteen years later, the HCP process is clearly not living up to its lofty promises. Instead of resulting in significant protections for endangered species, the process has paved the way for their continued, relentless destruction. Since Congress' addition of the HCP process in 1982, hundreds of new species have been added to the lists and hundreds if not thousands more warrant listing. A few of the problems that have arisen with the HCP process are listed below. 

HCPs are based on the unproven theory that endangered and threatened species can survive and flourish over the long run despite continual cumulative losses of their habitat. However, we do not have the level of experience with HCPs to warrant the conclusions being used to justify their approval. In fact, experience thus far has been to the contrary: many early HCPs are failing to protect listed species and are significantly contributing to their continued decline. The original San Bruno Mountain HCP in San Francisco, California, which was used as a national model for the HCP amendments of 1982, is a prime example. 

The findings required for HCP approval are often loosely interpreted and are made without adequate scientific justification. The USFWS is heavily susceptible to industry's political pressure. There is no independent scientific review of HCPs; industry often hires their own high-paid consultants and the USFWS often does not have the resources or the time to second-guess their work. Developers are thus able to do a "sales job" on the USFWS, underemphasizing a project's adverse cumulative impacts on species, while overstating the HCPs benefits. This situation is exacerbated by the USFWS' lax enforcement of the ESA's take prohibition, which has substantially weakened its leverage to require HCP applicants to implement adequate species conservation measures.

The HCP process often takes on a life of its own, gaining momentum before the environmental community is fully aware of the consequences. When environmentalists do actively participate in the HCP process, their concerns are often ignored. The planning process is also resource-intensive and is beyond the ability of most environmental groups to participate in. This is particularly significant given that legal challenges to HCPs are expensive, time consuming and difficult to muster due to courts' deference to agency judgments.

The HCP process seriously undermines species recovery planning. In fact, regional HCPs are being used in lieu of federally mandated recovery plans. There is no explicit prohibition in the ESA against approval of an HCP prior to preparation of a recovery plan. Thus, an endangered or threatened species subject to an HCP may experience significant cumulative habitat loss and recovery strategies and options may be foreclosed before they are even considered.

The amount of "take" permitted under HCPs is often excessive. Many HCPs authorize take within species "reserve" areas, and unlimited take outside of these areas.

The mitigation measures for "take" allowed under HCPs are typically inadequate. Very few HCPs require restoration of currently degraded lands. Most simply require acquisition of existing habitat in "exchange" for permitted destruction of an equivalent or greater amount of existing habitat (which may be more than 60% of the species' remaining range). This results in a substantial direct and cumulative net loss to species. To make matters worse, the USFWS has approved HCPs which allow the most valuable habitat to be destroyed, on the ground that avoidance of this area is too costly to the developer. Furthermore, HCPs often contain insufficient mitigation measures even to ensure the species' ultimate survival (let alone recovery).

HCPs generally are inadequately funded, and lack adequate monitoring and reporting provisions and "reopener" clauses. HCPs are often approved without adequate assurances that funding will be provided to implement the mitigation measures in the plan and that the success of the mitigation efforts will be evaluated. Because there is no limit to the amount of time which an HCP may be effect, these problems will haunt us far into the future. The Plum Creek Timber HCP in Washington State, for example, will be in effect for 100 years! 

Secretary Babbitt's ill-conceived "no suprises" policy has compounded these problems exponentially. This policy "locks in" the inadequate mitigation measures and funding mechanisms in HCPs for the life of the plan. In a rush to take advantage of the policy's broad regulatory "assurances," developers are simply lumping together all species that are known to exist in a particular habitat type, regardless of whether their biology is understood, and claiming mitigation credit for such species. If these "seat of the pants" judgments later prove to be incorrect, however, the federal government's hands are tied: it is precluded from requiring any further mitigation that will have a financial impact on the landowner.

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