Institute for Ecological Health
California is the epicenter of habitat conservation planning under the Federal Endangered Species Act (FESA) with a number of plans in place or under development around the state. What are these plans about and what do they achieve?
Conservationists often assume that a Habitat Conservation Plan (HCP) provides for the protection of wildlife habitat, native species, and natural communities in a region. But that is usually not the outcome and it certainly is not the primary purpose of the HCP program.
The Basis of Habitat Conservation Plans: Congress authorized HCPs in the early 1980s as a way of allowing take of species listed under FESA. The legislative action, creating Section 10(a) of FESA, was a response to a development proposal on San Bruno Mountain, south of San Francisco, home to two imperiled butterfly species. It provided a mechanism to protect endangered species habitat while still allowing some development to occur. Before passage of Section 10(a), there was no mechanism allowing take of listed species on private land, although it could occur on public lands under Section 7 of FESA.
Under Section 10(a), an applicant presents the U. S. Fish & Wildlife Service (USFWS) with a plan for the affected area, including mechanisms to protect some of the area and mitigate the effects of "incidental take" of species that will be covered by the plan. Incidental take means take that is incidental to the main purpose of the project, as opposed to hunting and trapping where take would be the main purpose of the project. It does not mean that the take will necessarily be insignificant.
The Service can only approve the HCP, and issue a permit, if it finds that...
the 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.
In addition, the Secretary of the Interior may attach additional measures to the permit that are deemed necessary or appropriate for the purposes of the plan. History and Trends of California HCPs: From the beginning, most HCPs have focused on urban development projects in areas with listed species. Initially, plans covered small areas, perhaps a single parcel of land, and only one or two species. Larger examples included the Coachella Valley HCP in Riverside County, which created preserves for the fringed toed lizard and allowed development to occur in other areas.
More recently, we have seen the metropolitan Bakersfield HCP, and a proposed Stephen's kangaroo rat HCP in western Riverside County. We are seeing a shift to multi-species plans and inclusion of the California Endangered Species Act (CESA). In the Central Valley, we are starting to see inclusion of Section 404 of the Clean Water Act which covers fill of wetlands. HCPs can include candidate and other species. The draft Yolo County HCP covers about thirty species, with a long list of additional species. There is overlap with other planning processes, including Natural Communities Conservation Planning in southwest California and the Multi-species Conservation Plan in San Diego County.
How does an HCP work?: There is a steering committee of the various interests. The committee may include local governments, agriculture, developers, conservationists, Department of Fish & Game and the USFWS. A consultant drafts the plan, working with the steering committee. The plan sets up a system for mitigation of incidental take. This usually includes a ratio of habitat protected in return for habitat destroyed, with a fee system to cover all or part of the costs of this protection. It may delineate preserves, or areas within, in which future preserves will be established. (The hesitancy results from concerns about possible lawsuits claiming "taking" of private property if there are preserve lines on a map that go beyond public land or land belonging to known willing sellers.) The workings of this protection system over the lifetime of the permit should provide protection for species covered as required by law.
In addition to the plan, there is an implementation agreement that covers how the responsible entities will carry out the plan. This includes management of any preserves, endowment for that management, choosing land to be protected, and responsibility and oversight. County government is often the responsible entity for plan implementation. The plan has a lifetime, often 20 years, but land needs to be protected in perpetuity (a key issue for conservationists).
What are the Forces Creating an HCP?: Urban development is the main issue leading to HCP development. Project-by-project mitigation produces small, isolated, protected areas that are unlikely to maintain biodiversity and even targeted species for the long term once surrounded by development. It is also a very slow and expensive process that creates unwelcome uncertainty for the development community. The goal of a faster, simpler, cheaper process is the main concern. Local government is often interested in a more efficient and faster process as well.
HCPs - A Partial Solution: HCPs basically are mitigation plans for development, rarely conservation plans for protecting the biological sources of the HCP area and aiding recovery of listed species. They do not have recovery targets (e.g. number of pairs of breeding Swainson's hawks in 20 years) or ensure conservation of viable populations. They usually do not establish a network of protected areas that will maintain biodiversity over the long term. While better than project-by-project mitigation, they are not a substitute for real biological conservation plans or for integrated land use planning that addresses the needs of nature and people within a region.
Habitat Conservation Planning: Endangered Species and Urban Growth by Timothy Beatley. University of Texas Press. 1994.
Reconciling Conflicts under the Endangered Species Act: the Habitat Conservation Planning Experience by Michael Beal, et al, World Wildlife Fund, Washington. 1991.