Habitat Conservation Plans Under the U.S. Endangered Species Act: The Legal Perspective

Habitat Conservation Plans under the federal Endangered Species Act have become an increasingly popular tool for resolving conflicts between land development and species conservation. Their primary purpose, however, is legal and regulatory rather than biological. They are what landowners must prepare in order to obtain a permit to “take” animals listed by the U.S. Fish and Wildlife Service as threatened or endangered. Unfortunately, many professionals involved in the HCP process aren't sufficiently cognizant of the legal and regulatory functions and the purposes and limitations of HCPs. I provide an overview of the regulatory structure of the ESA, the role HCPs play in that structure, and the specific legal requirements associated with HCPs. I then discuss the practice of crafting an HCP and the most common issues that arise in the process. Finally, I assess several very fundamental current problems with the HCP program, problems that threaten to undermine the HCP program to such a degree as to end its utility to landowners and thereby end the tremendous conservation opportunities the HCP program represents.