The Potential and Pitfalls of Habitat Conservation Planning Under the Endangered Species Act

Abstract

Almost completely lost amid the thick controversy surrounding the Endangered Species Act, the U.S. Fish and Wildlife Service, the agency with the bulk of the responsibility for administering the Act, has rediscovered a mechanism for resolving some of the most bitter land use disputes involving listed species -- Habitat Conservation Planning (HCPs). HCPs allow landowners affected by the Act to engage in limited violations of the Act in exchange for the agreement to undertake mitigation measures that might not otherwise be required by the Act. While laudable from a governance point of view, critics have noted that the Fish and Wildlife Service has often been quite generous in negotiating HCPs with landowners. This article discusses some of the benefits and problems with HCPs, and the factors that have influenced the evolution and development of HCPs. Threats of judicial intervention or legislative reform have been played a large role in forcing the Fish and Wildlife Service to strike compromises with landowners and negotiate HCPs. Congressional stinginess has also crippled the Service's ability to enforce the Act's prohibitions, further pressuring the Service to yield regulatory ground. For its part, the Service has failed to involve the public in HCP procedures, thereby missing an opportunity to deflect some of the criticism and pressure to compromise. Finally, the Service must contend with potential problems posed by the Nollan and Dolan cases, which may adversely affect the Service's ability to negotiate HCPs.