HCPs: Planning Strategy Offers Incentives to Conserve Habitat

Landowners and local governments facing choices whether to build on their land, plant crops, or sell it to developers can avoid a collision course with endangered species laws under a legal tool gaining wider use in California -- habitat conservation plans.

Until this device was made a part of the federal Endangered Species Act (ESA) in the early 1980s, the discovery or listing of an imperiled plant or animal could quickly paralyze planned development or other land uses, causing legal gridlock and political polarization.

Now, the agencies that enforce federal and state endangered species laws -- the U.S. Fish and Wildlife Service (FWS) and California Department of Fish and Game (DFG) -- can work with landowners, local governments, developers, environmentalists, and others to create Habitat Conservation Plans (HCPs) designed to protect species and allow for recovery without trampling on property rights.

"Habitat conservation plans enable us to work out solutions for complying with state and federal endangered species laws before we get into a crisis situation," said Ron Rempel, a DFG habitat conservation planner and endangered species specialist.

What is an HCP?
The U.S. and California Endangered Species Acts prohibit unauthorized take of species listed as endangered or threatened. The meaning of "take" includes deliberate harm, such as trapping or shooting, but also unintentional harm that occurs incidental to an otherwise lawful activity.

An HCP is prepared for the purpose of obtaining an "incidental take" permit, which allows the property owner to harm a listed species or its habitat in order to carry out an approved land use, providing that other habitat is protected to benefit the listed species.

Both the state and federal ESAs contain requirements and restrictions for incidental take, but only the federal ESA specifically requires an HCP. However, species often appear -- or are likely to appear--on both federal and state endangered species lists, so applicants generally seek permits from both agencies and submit an HCP to the state as well.

HCPs vary in size from several acres to several hundred-thousand acres. Across the country, the U.S. Fish and Wildlife Service has issued incidental take permits for at least 197 HCPs, and another 200 plans are being developed. Of these, 59 are approved in California, and 70 are pending in the state.

HCPs spell out the likely impacts of an incidental taking and measures to monitor, minimize, and mitigate for such impacts. The plans must provide suitable habitat to offset incidental takings that may occur with economic use such as housing, commercial and industrial development, oil and gas extraction, and building infrastructure.

How HCPs Work
Permit applicants determine which species their HCP will cover, and historically, HCPs pertained to a single listed species -- the one covered by the incidental take permit.

Today, as a result of efforts by the Wilson administration and others, plans are increasingly broader in scope, anticipating future concerns and addressing multiple species.

Plans tailored to fit only one species may conflict with the need of other species.

On the other hand, a broader-scope plan can be expected to take longer and cost more to prepare and implement. Preparing multiple species plans can be complicated by the varying extent of available scientific information.

HCPs are different from California's Natural Community Conservation Planning (NCCP) program, which is authorized under state law. NCCP plans preserve broad areas of habitat and allow for compatible economic growth. The initial NCCP plans are being developed in five Southern California counties.

While HCPs are required for compliance with the federal ESA, participation in NCCPs is voluntary. HCPs are created to deal primarily with species already listed. NCCPs are designed to anticipate potential listings and aim to prevent them by developing an ecosystem-based approach to the conservation of habitat. If species are already listed, NCCPs can head-off additional regulatory controls from being imposed.

More information is available in CERES at http://ceres.ca.gov/planning/hcp/index.html and http://ceres.ca.gov/cra/NCCP

How HCPs Originated
Incidental take permits were authorized in the 1980s by amendments to the federal and state ESAs.

California's -- and the nation's -- first HCP was created to cope with an unexpected conflict that threatened to halt a series of developments around San Bruno Mountain south of San Francisco. Despite a lengthy local planning process in which much of the mountain was designated as open space, much of the private land subject to development was habitat of the endangered mission blue butterfly. Federal ESA prohibition of even incidental take placed the local general plan in limbo.

During the planning period that followed the listing proposal, the Service, working with the landowners, developers, environmental groups, and local, state, and federal agencies, produced a long-term plan to protect the butterflies and several other species of concern.

"There was a lot of casting about for ideas on how to proceed with development plans and still protect the federally listed endangered species," said Gail Kobetich, field supervisor for the U.S. Fish and Wildlife Service in Carlsbad, who worked on the first HCP and has been deeply involved in many others since.

"Somebody came up with the idea that we could issue incidental take permits for listed species harmed during the pursuit of otherwise lawful activities," Kobetich said. "It was decided it was worth a try, so we began working on a procedure."

The result was the first HCP, which the County of San Mateo implemented with funding from developers.

Congress amended the ESA in 1982 with Section 10 (a) to provide for incidental take permits if the applicant submits a federally acceptable HCP.

"The plan has worked as promised," said Tom Reid, a Palo Alto consultant whose firm originally drafted the HCP.

"Development impact has been strictly limited, the loss of habitat to invasive exotic plants has been reversed, and populations of protected species are stable and under public protection."

Soon after the San Bruno Mountain HCP, a plan was implemented for the Coachella Valley fringe-toed lizard. Since then, a series of HCPs have been drawn and incidental take permits issued. But Kobetich says the procedure still has room for improvement.

The federal ESA does not allow for incidental take while the permit is under consideration, which can be several years.

"What happens in the meantime?" Kobetich said. "Does all development stop, or can an interim process be worked out that would allow some level of incidental take while we are negotiating the overall agreement? We would like to have an interim process."

Local Government's Role
While state and federal wildlife agencies play a major hand in developing and monitoring the plans, it is up to local governments to implement and operate them. An HCP doesn't become final until the local implementing agreement is signed.

"Local programs are much more acceptable to the community," said Kern County Planning Director Ted James.

Kern County has one of California's earliest, largest and most successful HCPs, the Metropolitan Bakersfield Plan, which encompasses 408 square miles, or 261,120 acres, mostly privately owned.

The plan was approved in 1994 to help preserve five state and federally listed animals and eight plant species, including: the San Joaquin kit fox, blunt-nosed leopard lizard, Tipton kangaroo rat, San Joaquin (Nelson's) antelope squirrel, Bakersfield cactus and California jewelflower.

Kern County is working on another major multiple-species plan, the 3,000-square mile Valley Floor HCP, which will streamline the process of obtaining federal and state incidental take permits so that applicants can go to just one place. Other features include market-based tradable credits, a multiple species habitat preserve system, and protection of private property rights.

San Joaquin County is preparing an HCP for incidental take of 66,834 acres that are home to 101 species, of which 24 are listed, including the Swainson's hawk, San Joaquin kit fox, and fairy shrimp. If all of the land is developed, another 85,232 acres of habitat must be preserved to mitigate for the loss.

Tulare County also is drafting an HCP to help protect the San Joaquin kit fox, Tipton kangaroo rat, and blunt-nosed leopard lizard on the valley floor.

In Northern California, Pacific Lumber Company is preparing an HCP for 207,000 acres of forest lands as part of a state and federal agreement to publicly acquire and preserve the ancient Headwaters Forest of old-growth redwoods in Humboldt County. The HCP must address three listed species: the northern spotted owl, marbled murrelet, and coho salmon.

A 465,908-acre HCP being created in Yolo County would protect 29 species, including the endangered Swainson's hawk, threatened valley elderberry longhorn beetle and giant garter snake, and several endangered plants.

"HCPs have opened communication among the agriculture industry, environmentalists, developers, and state, federal, and local governments," said Mark Hamblin, associate planner for Yolo County.

"Without HCPs this communication didn't exist, and we ended up with a situation where one might develop a wetland or a mitigation pond in the middle of 'ag' land."

Financial Incentives
HCPs offer incentives for landowners to preserve habitat and forego other profitable opportunities.

NCCP and other multi-species habitat conservation plans provide a necessary economic incentive that encourages landowners to safeguard endangered species and enhance California's biodiversity," said Doug Wheeler, the state's secretary for resources and chair of the California Biodiversity Council.

There are a number different ways to make it financially worthwhile for landowners to put land into a habitat preserve. Mitigation for loss of habitat can be achieved in a variety of ways:

• Tradable credits. The landowner obtains credits they can sell to someone who must mitigate for development elsewhere. If endangered species are present on the land, they can obtain bonus credits worth even more.
• Fee system. Developers pay a set per-acre price to the city or county, which is used to buy land for conservation.
• Conservation easements. Farmers dedicate an easement on a portion of their land for habitat preservation, while continue to use the surrounding agricultural lands to grow crops. Local governments purchase the conservation easements from farmers with mitigation fees paid by developers.

"We're trying all kinds of new approaches to encourage people to conserve their habitat so they get monetary serve thkeir habitat so tkhey get monetary value out of it, the conservation is achieved, and the developer gets to do their project," Rempel said.

The Future of HCPs
HCPs are still a relatively new process, not fully proven. Planners, developers, and environmentalists alike are watching them with a hopeful, but critical eye.

Wheeler says HCPs need adequate funding to develop and implement them, and more coordination among local, state, and federal governments.

Development consultant Jim Whelan, co-chairman of the San Diego-based landowners group Alliance for Habitat Conservation, who is experienced with NCCP and HCPs, says implementation will be the proving ground.

"What has made the process work well is the people who understand and accept the viewpoints of the other side, and accept short-term losses in favor of long-term benefits," Whelan said.

Michael O'Connell, director of NCCP for The Nature Conservancy, said the species-level focus and small geographic scope of most traditional HCPs have difficulty fulfilling ecosystem-level objectives, such as conservation of natural communities and processes. The Nature Conservancy has looked to NCCP as a way to overcome this problem, O'Connell said.

"Without active management of most sensitive lands in California, biodiversity will probably still decline due to invasion of exotic species, lack of fire, and destructive uses," O'Connell said. "In exchange for some loss of habitat, HCPs have the potential to solve some of these difficult conservation issues and leave the species better off."

Read it again at http://ceres.ca.gov/biodiv/newsletter/v4n3/