Reforming Section 10 and the Habitat Conservation Plan Program

22 Pages Posted: 9 Dec 2009

Date Written: December 6, 2009


This Chapter in a forthcoming book to be published by AEI (edited by Jonathan Adler) provides a framework for HCP reform. The Chapter first briefly reviews the history of HCP regulations and guidance, and what we know about HCPs in practice (which is limited). It offers a range of reforms to address problems in the current HCP approach, including requirements that the Services assemble a better database regarding current HCPs and report to Congress on the program periodically; greater reliance on programmatic regulations adopted after notice and comment; development of guidelines for assessing the likely or possible environmental impacts of HCPs upfront, at the time a HCP is proposed, and the development of separate rules, processes and requirements for HCPS depending on the possible range of impacts; enhancing citizen enforcement of at least high-impact HCPs by means of explicit authorization of citizen suits to enforce HCPs, reliance on scientific advisory board (SAB) review to address the scientific legitimacy objection with respect to high-impact HCPs; development of public-private insurance to address the long-term uncertainty posed by high-impact HCPs; and development of rules and plans for greater reliance on conservation banks to address the long-term uncertainty posed by smaller-scale, lower-impact HCPs.

Keywords: Endangered Species, Habitat Conservation Plans, Conservation Banking, Environmental Insurance, Environmental Law

JEL Classification: K32, K30

Suggested Citation

Dana, David A., Reforming Section 10 and the Habitat Conservation Plan Program (December 6, 2009). Northwestern Law & Econ Research Paper No. 09-44, Northwestern Public Law Research Paper No. 09-25, Available at SSRN: or

David A. Dana (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-0240 (Phone)
312-503-2035 (Fax)

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