How to Kill Endangered Species, Legally: The Nuts and Bolts of Endangered Species Act 'HCP' Permits for Real Estate Development
J. B. Ruhl
Vanderbilt University - Law School
Environmental Lawyer, Vol. 5, No. 2, 1999
FSU College of Law, Public Law Research
The Endangered Species Act permits land development induced take of protected species on the conditions that the take is not the purpose for the development project, and that certain measures are implemented to minimize harm to the species. One form of incidental take authorization in the Endangered Species Act is the section 10 habitat conservation plan (HCP) permit program. Section 10 of the Endangered Species Act specifically provides for the permitting of incidental takes occurring in land development projects not carried out, funded, or authorized by the federal government. With the increasing attention to private lands as critical habitat for endangered species, this permit program has become important. Relatively little has been written in the way of guidance for land development attorneys on how to navigate the HCP permit process. This Article seeks to fill that gap so that all sides can participate in a more efficient process, one that promotes both development and sustainable conservation. This Article examines the HCP permit process from the perspective of an attorney whose client wishes to develop a moderately-sized parcel of land, the development of which may adversely affect an endangered species.
The Article begins by exploring the factors used to determine whether an HCP permit is necessary for the project. Next, the Article explains how to obtain the permit once its necessity has been determined. Finally, the Article discusses methods to ensure the client's long-term compliance with the permit. Resolution of these three fundamental issues depends in differing degrees upon the black letter law of the HCP program, written and unwritten guidance and policy, other sections of the Endangered Species Act and other laws, as well as varying interpretations and implementations of the applicable law. The author concludes that despite disagreement over whether the HCP program can truly work effectively toward both real estate development and species conservation, those who understand how the Endangered Species Act works in practice are better situated to contribute to those dual ends.
Number of Pages in PDF File: 62
Date posted: November 15, 1999 ; Last revised: March 8, 2009