Critical habitat designation on lands covered by Habitat Conservation Plans (HCPs)

Copyright Jim Rorabaugh, U.S.F.W.S.

One purpose of HCPs is to encourage landowners to develop voluntary measures to minimize and mitigate the impacts of development activities on an endangered species.  However, in February, 2011, arroyo toad critical habitat was designated in lands covered by HCPs in southern California, causing widespread concern among landowners, undermining both HCP partnerships and participants’ security from perceived additional regulatory burdens.  The decision to include or exclude HCP lands from critical habitat is ultimately up to the discretion of the U.S. Fish & Wildlife Service (FWS), and past designations reveal an inconsistent pattern across regional offices and over time, with four discernible approaches to designation.

On the one hand are situations where the Service readily excludes critical habitat on HCP lands and expresses skepticism of the benefits of designation.  In this approach, applied in 2006 to designations for the Perdido Key, Choctawatchee, and St. Andrew beach mice, it appears that as long as an HCP promotes the long-term conservation of a species and its habitat in a reasonably robust fashion, the Service is willing to exclude the area from designation – in short, an HCP with adequate mitigation provisions trumps critical habitat.

On the other hand are situations, as for the arroyo toad in early 2011, where the Service explicitly declines to exclude HCP lands from critical habitat because those lands are not yet actively conserved or managed under the HCP at the time of the final designation.  We have interpreted the inclusion of these HCP lands as a possible strategy for encouraging more rapid HCP implementation, with the additional incentive of HCP land possibly being excluded at a later date.

Somewhere between these two extremes is a third approach, applied in 2010 to critical habitat designations for the bull trout and Preble’s meadow jumping mouse, in which the Service conducts an analysis of the additional benefits of critical habitat designation, but ultimately excludes all or most HCP lands from designation because of the overwhelming desire to incentivize participation in HCPs.

In these first three approaches, the Service (1) determines that the HCP lands meet the definition of critical habitat and then (2) exercises its discretion to exclude those portions of HCP lands where the benefits of exclusion outweigh the benefits of inclusion.

By contrast, under a fourth approach exemplified in the 2003 critical habitat designations for 60 Hawaiian plants, the Service determines that an area does not meet the definition of critical habitat, and thus does not perform any such discretionary balancing.  Specifically, the Service excludes areas where conservation plans are or will be implemented and effective, and which therefore do not require “special management considerations or protection” and are not critical habitat.  You can learn more about these four approaches in the memo here.

A better understanding of the interaction between HCPs and the effects of critical habitat designation and a better ability to predict the Service’s response is essential to agency efforts to promote voluntary private landowner conservation and to construct better HCPs.  We encourage the Service to evaluate this interaction in its ongoing efforts to improve ESA regulations and policies.

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Katherine Eshel is the Endangered Species Policy Intern for Defenders of Wildlife. Katherine works on research and writing projects for various endangered species policy issues, including current regulatory reform.

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