Academic journal article
By Hall, Daniel A.
Environmental Law , Vol. 27, No. 3
A. The ESA and Biodiversity on State and Private Lands
Since being drafted in its modem form in 1973, the Federal Endangered Species Act (ESA) has remained our chief law for protecting imperiled animal and plant species, their habitats, and their ecological, economic, and social values.(4) In addition to guiding federal agency actions and enabling cooperative federal-state conservation programs, the ESA is intended to protect threatened and endangered species regardless of whether they inhabit public or privately-owned lands. The importance of both state and private lands to species conservation is likely to remain significant over time, as many of the threatened and endangered species found nationwide depend primarily on these lands.(5) The situation is no different in the Pacific Northwest, where private landowners and the states manage some of the most productive forestlands and habitats.
The ESA generally prohibits public and private persons from harming or otherwise "taking" a species officially listed as threatened or endangered pursuant to the Act.(6) The ESA's take prohibitions have been further defined through the Act's administrative regulations, which define "harm" as including "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(7) Until recently, these "take" prohibitions comprised the principal regulatory incentive for private and state landowners to cooperate with the United States Fish and Wildlife Service (USFWS) and other federal agencies to protect and recover threatened and endangered species.(8)
B. The Policy Impetus for HCPs
In 1982, Congress amended the ESA to allow private, state, and other non-federal landowners to develop habitat conservation plans (HCPs) as an alternate means of complying with the ESA.(9) Section 10(a) was added to the ESA to allow landowners to harm or otherwise "take" listed species and their habitats through land management, resource extraction, development, or other activities, provided that the landowner's primary intent is not to harm the species per se.(10) Interested landowners may apply to the USFWS or the National Marine Fisheries Service (NMFS) (collectively, the Services) for a section 10(a)(1)(B) incidental take permit (ITP). To qualify for an ITP, landowners must develop an HCP that minimizes and mitigates the "take" to the "maximum extent practicable."(11)
HCPs are one of the present Administration's favored means of implementing the ESA, and the Department of Interior s No Surprises Policy has been particularly instrumental in encouraging state and private landowners to develop HCPs.(12) Put most simply, the No Surprises Policy assures landowners that once they agree to a mitigation strategy as part of an HCP, they will not normally be liable for providing additional mitigation at a later date should the species listing status or other circumstances change. The scope of these assurances is quite broad, and can cover species which are not yet listed under the ESA.
While landowner interest in HCPs was originally slow to develop, a substantial percentage of industry and state-owned forestlands in the Pacific Coast states are now, or will soon be, covered by mS and their underlying HCPs. HCPs, which would provide blanket coverage for groups of smaller landowners, are also being explored by some organizations. Given the impending listing of several species of salmon and other anadromous fish,(13) it is not surprising that many recent HCPs give particular attention to providing enhanced stream and riparian area protections. Several recent HCPs also claim to address hundreds of species or, in some cases, all species which might ever reside On the property.(14) If the Services continue to determine that these listed and unlisted species are adequately addressed by these HCPs, then the landowners will in effect receive an extremely broad exemption from the ESAs take prohibitions and habitat protections. …