Habitat Conservation Plans as Recovery Vehicles: Jump-Starting the Endangered Species Act

Abstract

I. INTRODUCTION Few laws have fallen as short of their goals as the Endangered Species Act (ESA).(1) The ESA, the pit-bull of environmental legislation,(2) seeks to conserve species.(3) In a narrow sense, the ESA has successfully conserved some species by delaying their otherwise imminent extinction.(4) However, one of the ESA's broader goals -- the of listed species -- has gone unmet.(5) In the ESA's nearly three decade existence, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) - the federal agencies with primary responsibility for implementing the ESA - have listed over seven hundred species as or threatened.(6) But the agencies have de-listed only six species for recovery.(7) If is the ESA's ultimate objective, the Act has failed miserably. Political opposition to the Act's restrictive effect on land development, meanwhile, has mushroomed.(8) Since the early 1980's, private landowners have felt the impact of [subsections] 9 of the ESA.(9) Section 9 prevents landowners from unlawfully taking endangered species.(10) Organized groups representing private landowners are now lobbying Congress for an amendment to the ESA requiring the government to compensate landowners whose property is rendered less valuable because of the Act.(11) Many environmental groups are concerned about the impact of these efforts on the Act's on-going, and often stalled, reauthorization process.(12) Meanwhile, in the current political climate, the prospect of strengthening the ESA by amendment is nearly unthinkable. However, the FWS can initiate reforms without further statutory authorization that could improve the prospects of many listed species. This Article suggests that by consistently demanding stringent mitigation measures in high acreage, or regional, habitat conservation plans (HCPs), the FWS could significantly further the of many listed species. Frequently drafted by interested landowners and local government entities, HCPs are legally binding plans that specify, in part, those measures a party must take to minimize the impacts of its proposed actions on a listed species. Section 10 of the ESA allows the FWS to issue an incidental take permit if an applicant's HCP would not reduce appreciably the likelihood of the listed species' survival and recovery.(13) An incidental take permit typically allows the permittee to develop some portion of a listed species' habitat in exchange for the permitee's setting aside of other habitat and engaging in other protective measures.(14) The legal key to expansion of the HCP is to interpret survival and recovery in 16 U.S.C. [subsections] 1538 as synonymous terms. The FWS currently interprets survival and recovery chronologically.(15) To the FWS, survival refers to a species' short-termpersistence, and recovery, to long-term persistence. Instead, the FWS should interpret survival and recovery as involving the same goal: the long-term persistence of a listed species. This alternative interpretation is consistent with the science of conservation biology. FWS implementation of this Article's recommendation would result, through the formulation and implementation of regional HCPs, in the establishment of large habitat preserves and the adoption of other recovery-promoting practices. Thoughtfully delineated habitat preserves, together with other species-specific management actions, are crucial to the prospects of most species.(16) Part I of this Article briefly describes the statutory foundation for HCPs and explains how the FWS has implemented this statutory scheme. Part II discusses the statutory foundation for planning and explains how the FWS has implemented the mandate. Part III discusses how plan implementation and HCP formation can be integrated, and rebuts possible legal challenges to this proposed integration. …