No Surprises after Winstar: Contractual Certainty and Habitat Conservation Planning Under the Endangered Species Act
By Amy C. Derry
INTRODUCTION
The U.S. Fish and Wildlife Service's newly-released rule for habitat conservation planning codifies one of the Agency's latest, innovative regulatory programs under the Endangered Species Act (“ESA” or “Act”). The Final Rule has also temporarily laid to rest landowners' concerns about the program's permanence and the Agency's commitment to it. The program, called “No Surprises,” has sought since 1994 to encourage private landowners to enter into voluntary “habitat conservation plan” (“HCP”) contracts with the U.S. Department of the Interior (“DOI”). As an incentive to enter these contracts, the DOI offers landowners greater regulatory and economic certainty on lands included within an HCP. DOI officials claim that both development and conservation interests will benefit if more private landowners enter into HCP agreements.
Habitat conservation plans are agreements between private landowners and the federal government under section 10 of the ESA. Under an HCP, a private landowner whose property includes endangered species habitat may develop, with the government's approval, at least a portion of his property, provided he balance that development with habitat protection. Typically, habitat conservation agreements require the landowner to set aside either money or land, on- or off-site, for the long-term preservation of endangered species habitat. If a landowner prepares a conservation plan that provides adequate assurances for habitat protection, the Agency may issue an “incidental take permit” that allows harm to endangered species habitat on specified portions of the landowner's property.
The size, scope, and activities covered by HCP agreements vary considerably. Under the program, HCPs can cover half-acre lots to millions of acres, comprise forestry, agricultural, and development activities, and affect a single species to dozens of species. Indeed, there does not seem to be a “typical” HCP arrangement.
The U.S. Fish and Wildlife Service's newly-released rule for habitat conservation planning codifies one of the Agency's latest, innovative regulatory programs under the Endangered Species Act (“ESA” or “Act”). The Final Rule has also temporarily laid to rest landowners' concerns about the program's permanence and the Agency's commitment to it. The program, called “No Surprises,” has sought since 1994 to encourage private landowners to enter into voluntary “habitat conservation plan” (“HCP”) contracts with the U.S. Department of the Interior (“DOI”). As an incentive to enter these contracts, the DOI offers landowners greater regulatory and economic certainty on lands included within an HCP. DOI officials claim that both development and conservation interests will benefit if more private landowners enter into HCP agreements.
Habitat conservation plans are agreements between private landowners and the federal government under section 10 of the ESA. Under an HCP, a private landowner whose property includes endangered species habitat may develop, with the government's approval, at least a portion of his property, provided he balance that development with habitat protection. Typically, habitat conservation agreements require the landowner to set aside either money or land, on- or off-site, for the long-term preservation of endangered species habitat. If a landowner prepares a conservation plan that provides adequate assurances for habitat protection, the Agency may issue an “incidental take permit” that allows harm to endangered species habitat on specified portions of the landowner's property.
The size, scope, and activities covered by HCP agreements vary considerably. Under the program, HCPs can cover half-acre lots to millions of acres, comprise forestry, agricultural, and development activities, and affect a single species to dozens of species. Indeed, there does not seem to be a “typical” HCP arrangement.