Habitat conservation plans have become popular tools for balancing development with protection of imperiled plant and animal species. Since Congress authorized them in 1982, nearly 500 habitat conservation plans (HCPs) have been adopted nationwide.

The plans were not always so popular. Only 20 HCPs won approval during the program’s first 12 years. Their use accelerated in 1995, when the Clinton administration began promoting them in the hope of blunting congressional efforts to rewrite the Endangered Species Act (ESA). And they really took off in 1998 with adoption of the controversial “no surprises” policy, which made HCPs more attractive to landowners by promising them relief from future regulatory meddling.

The no surprises policy was immediately attacked by environmental organizations, which recently won a court ruling overturning it. Although not quite the decisive victory the plaintiffs sought, the ruling nevertheless resulted in the suspension of the federal government’s HCP program and has cast doubt on its long-term future.

As originally adopted in 1973, the ESA made it a crime to “take” a species listed as threatened or endangered, “take” being defined as any activity that kills or harms listed species or destroys their habitat. In 1982, Congress amended the ESA to allow federal agencies to issue permits for the “incidental take” of listed species during the course of otherwise lawful activity. Any application for an incidental take permit must be accompanied by an HCP that spells out how the effect of the permitted activity on a listed species will be minimized, monitored and mitigated.

Landowners initially were unenthusiastic, mainly because of a requirement that HCPs include a clause allowing their terms to be changed whenever federal agencies deemed it necessary. Why go to the trouble and expense of developing a habitat plan, landowners reasoned, if the government could rewrite the permit at any time?

The “no surprises” policy, originally announced in August 1994, was adopted to cure that perceived shortcoming. The policy required that federal agencies approving HCPs provide “assurances” to landowners that once an incidental take permit was approved, the government would not later change the permit’s terms in a way that increases the landowner’s costs or further restricts the use of natural resources. Under “no surprises,” no additional conservation or mitigation measures could be imposed even if changed circumstances rendered the HCP inadequate to protect a listed species.

Biologists and environmentalists decried the policy, charging that it opened a gigantic loophole in the ESA and ignored the uncertainty inherent in the science of conservation biology and ecosystem management. In 1996, several groups filed a lawsuit alleging that the policy had been adopted in violation of the Administrative Procedures Act, which requires public notice and an opportunity for public comment before such regulations are adopted.

The federal government settled that suit by agreeing to delay final adoption until the government had solicited public comment. About 800 comments subsequently were received, 755 of them opposing the policy. Many comments came from conservation biologists who warned that without a mechanism to respond to such “surprises” as drought, disease, fire, storms and floods, the HCP program would guarantee the loss of species and habitats.

But the federal agencies adopted the original policy virtually unchanged. In 1998, six environmental groups sued again, arguing that the government still had failed to comply with administrative law and that the policy violated the ESA.

While that suit was pending, the federal government adopted yet another policy making it more difficult to revoke incidental take permits. The plaintiffs, including the Spirit of the Sage Council and the Humane Society of the United States, amended their suit to allege that the revocation policy also violated the ESA and the Administrative Procedures Act.

Intervening as defendants in the litigation were the city and county of San Diego — where large-scale HCPs are a particularly popular conservation tool (see CP&DR Environment Watch, February 2003) — Orange County, Irvine Ranch Water District and a coalition that includes the National Association of Home Builders, the Building Industry Legal Defense Foundation, the Kern Water Bank Authority, and the American Forest and Paper Association.

In December 2003, Judge Emmet Sullivan of the federal district court in Washington, D.C., ruled that the federal government had, indeed, violated the Administrative Procedures Act by adopting both the “no surprises” and permit revocation policies without prior public notice and without providing a meaningful opportunity for public comment. He suspended both policies and ordered officials to start over.

“The ruling is a huge victory for imperiled animals and plants, as well as the public’s basic right to have a say in how public resources are managed,” said Leeona Klipstein, executive director of Spirit of the Sage Council.

The defendants were less enthusiastic.

“The inability to give ‘no surprises’ assurances to landowners would not only be a breach of faith with those landowners, it would also be a serious impediment to our ability to conserve and enhance habitat for imperiled wildlife,” said Craig Manson, assistant secretary of the Interior.

Duane Desiderio, vice president of the National Association of Home Builders, was more blunt. “Now, a permit isn’t worth the paper it’s written on,” he told the Associated Press.

The legal saga did not end there. Following the judge’s ruling, USFWS Director Steven Williams issued a memo directing his regional managers to continue approving HCPs containing the no surprises clause, as long as they also included legal language noting that the remaining stipulations in each HCP would remain in effect if the no surprises policy were subsequently invalidated.

The plaintiffs went back to court, and on June 10, Judge Sullivan ordered the agencies to stop issuing HCPs containing the no surprises clause. He also gave the agencies until December 10 to complete the process of developing new permit rules. Williams then issued another memo directing his agency to stop approving incidental take permits altogether, but not before the USFWS on June 22 approved an HCP and incidental take permits covering 1 million acres and 146 species in rapidly growing western Riverside County. The Riverside County plan, perhaps the most ambitious HCP to date, does not contain the no surprises guarantee, although federal officials could add it later.

Significantly, Judge Sullivan did not rule on the substantive claim in the lawsuit: that the no surprises policy violates the ESA. Absent such a ruling — and given the popularity of no surprises HCPs — it is likely the federal agencies will simply readopt the polices after the legally prescribed public comment process has been completed. If that happens, another round of litigation is likely.

U.S. Fish and Wildlife Service, habitat conservation planning: http://endangered.fws.gov/hcp/index.html
Spirit of the Sage Council: www.sagecouncil.com