May 07, 2020

Private permitting of “take” of endangered species under section 10 of the Endangered Species Act: The Habitat Conservation Plan

Karin T. O’Connell

This article is the first in our new Advanced Practitioner Series, which is designed to provide our readers with expert analysis of trends, as well as advanced practice tips, in established practice areas. The series also covers professional and career issues of interest to environmental, energy, and natural resources lawyers.

This article explains the basic requirements for a Habitat Conservation Plan, to be submitted in connection with a party’s application for an individual permit to impact endangered species and habitat in the course of property development.

A brief history of “take”

The federal Endangered Species Act (ESA), passed in 1973, contains a provision prohibiting “take” of any species which has been listed as endangered under the Act. 16 U.S.C. § 1538. What does it mean to “take” a species? The ESA defines “take” as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). “Harm” has been defined to include “habitat modification or degradation that actually kills or injures wildlife,” which definition the U.S. Supreme Court upheld in 1995. Babbitt v. Sweet Home Chapter of Cmtys. For a Great Or., 515 U.S. 687 (1995). Whether the habitat modification “actually kills” wildlife generally turns on issues of foreseeability and must be determined on a case-by-case basis.

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