 The Federal Endangered Species Act
The federal Endangered Species Act (1972) was passed by Congress in 1973 to "conserve the ecosystems upon which endangered and threatened species depend, and to conserve and recover listed species." Endangered species are in danger of extinction throughout all or a significant portion of their ranges. Threatened species are considered likely to become endangered in the near future.
The Endangered Species Act of 1973
www.fws.gov
The ESA prohibits activities that may result in death, injury or harassment of endangered species, or destruction or modification of their habitat. Under the ESA, this is called "take." Penalties for causing “take” of listed species range from warnings, to monetary fines, to jail time for the most egregious violators.
Section 10 of the Endangered Species Act, “Exceptions”, describes Habitat Conservation Plans in section 10(a)(1). Section 10(a)(1)(b) describes Incidental Take Permits (ITP).
USFWS: Endangered Species Habitat Conservation Planning
www.endangered.fws.gov - general info about HCPs
www.fws.gov/endangered/pdfs/ESAall.pdf
State Endangered Species Regulations
Section 195D-4 of the Hawaii Revised Statutes (HRS) states that all species that are listed under the Federal Endangered Species Act have the same status at the State level.
§195D-21 Habitat conservation plans. (a) The department may enter into a planning process with any landowner for the purpose of preparing and implementing a habitat conservation plan. An agreement may include multiple landowners.
Incidental Take
Take is a legal term for causing harm to listed species under federal and state statutes. Incidental take occurs when species are harmed during otherwise lawful activities. For instance, lights are needed for functions such as safety and security and the attraction of seabirds to the lights is incidental to their use. Incidental take is not lawful without appropriate authorization obtained through the HCP process.
What is a Habitat Conservation Plan (HCP)?
An HCP is a document submitted as part of an application for an incidental take permit (ITP) for listed species. HCPs apply to listed and non-listed species, including those that are candidates or have been proposed for listing. Listed species are those protected under the Federal Endangered Species Act and Hawaii Revised Statutes Section 195D-4.
Habitat Conservation Plans are voluntary and are a means for non-federal entities -such as private, state, local jurisdictions-to obtain an ITP for actions, projects, or facilities that cause unavoidable “incidental take” of listed or candidate wildlife species. However, when an applicant forgoes the HCP-ITP process they are at risk of enforcement actions for unauthorized incidental take.
Congress intended HCPs to provide a mechanism to reduce conflicts between listed species and economic development, provide a framework that encourages cooperation and creative partnerships between the public and private sectors, and integrate land-use activities with conservation goals.
HCPs integrate the applicant’s proposed project or activity with the needs of the covered species. It describes, among other things, the anticipated effect of a proposed taking on the covered species and how that take will be minimized and mitigated. Such information must be submitted with any incidental take permit application.
Once an HCP has been written and approved, the applicant receives an Incidental Take Permit (ITP) from the United States Fish & Wildlife Service (USFWS) and relevant State agencies. The ITP allows the applicant(s) to proceed with the activity proposed in the HCP for the time specified in the HCP, even though a small amount of take may occur. Applicants who follow their HCPs cannot be penalized by USFWS for take, as long as the amount does not exceed what is allowed in the ITP.
For example, the International Paper Company developed an HCP covering the endangered red-cockaded woodpecker on company lands in the southeast. The HCP will accompany their ITP application. Their HCP describes the activity-specific impacts of timber operations on the woodpecker (i.e. number of lost nest sites) and proposes measures to avoid, minimize, and mitigate each impact. Mitigation measures could include actively managing a minimum amount of habitat in order to increase the woodpecker population (i.e. based on the number of lost nest sites). While the permit includes an expiration date, the mitigation identified and accomplished through the HCP can be in perpetuity.
Why Develop a Programmatic (Island-wide) HCP?
The programmatic HCP approach would streamline the HCP and ITP application process for numerous entities that need an HCP for relatively small amounts of take. Developing an umbrella HCP to cover the island could save large amounts of time and money for the private sector as well as agencies and tax payers. Community-based partnerships would foster landscape level conservation efforts for the covered species as well as many other rare and unique plant and animals on Kaua'i.
Components of an HCP
Components* of an HCP typically include:
• Biological Goals and Objectives
• Covered Activities
• Biological Impacts & Take Assessment
• Mitigation: Avoidance, Minimization, and Mitigation
• Monitoring
• Adaptive Management
• Changed/Unforeseen Circumstances (Application of No Surprises Policy)
• Funding
• Alternatives
* HCP Planning Workbook (1996) issued by the USFWS and NOAA Fisheries
In 2000, the Five Points Policy provided clarifications to required components.
The Relationship between HCPs and Incidental Take Permits (ITP)
• An HCP must accompany an application for an incidental take permit.
• Incidental take permits are required when non-Federal activities will result in “take” of threatened or endangered species.
• The purpose of the HCP process associated with the permit is to ensure there is adequate minimizing and mitigating of the effects of the authorized incidental take.
• The purpose of the incidental take permit is to authorize the incidental take of a listed species, not to authorize the activities that result in take.
Benefits of an HCP and Incidental Take Permit (ITP) for an applicant/participant/private landowner
The HCP process allows take as long as the landowner is complying with the terms and
conditions of the ITP.
The “No Surprises” Rule
The applicants/participants of the HCP are provided with assurances that no additional resources will be required as long as the HCP is properly implemented. A regional scale HCP would provide these benefits to constituents in a process that is open to public input and participation. |
