The Sectorwide Habitat Conservation Plan

Over the past 40 years, much has been written about the possibility of section 10 of the Endangered Species Act (ESA) to incentivize landowners to manage their lands to enhance endangered species’ habitats. This article briefly reviews trends in the use of section 10 habitat conservation plans (HCPs), with targeted insight as it relates to forestry and agriculture in the Pacific Northwest. This review shows that large-scale programmatic HCPs are playing an increasingly important role in addressing sectorwide ESA risks, a trend that is likely to continue given increased pressures on sensitive species. Ultimately, section 10 continues to offer great potential, and steps should be taken to prioritize the sectorwide HCP approach, which offers the clearest path to realizing this potential on a large scale.

Some background is necessary. section 9 of the ESA prohibits the “take” of endangered fish and wildlife. 16 U.S.C. § 1538(a)(1)(B). “The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). The Supreme Court has upheld regulations defining “harm” for the purposes of determining “take” to include habitat modification that actually kills or injures a species. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 703 (1995) (upholding 50 C.F.R. § 17.3).

While section 9 is rigid in its prohibition of take, section 10 of the ESA authorizes the federal wildlife services administering the ESA (the United States Fish and Wildlife Service (USFWS) and NOAA Fisheries) to issue “incidental take permits” that grant assurances to permitholders that their operations comply with the ESA, even if those operations incidentally result in the “take” of an endangered species. 16 U.S.C. § 1539. Obtaining these assurances allows landowners to manage the risks of ESA litigation and to ensure that their operations can continue without running afoul of the ESA. The central requirement for obtaining these permits is the submission of a plan that meets various statutory requirements. These plans have become known as HCPs. At a basic level, an HCP is a contract whereby a landowner agrees to implement various conservation measures in exchange for being able to conduct various activities without risk of ESA compliance issues. For example, a landowner could agree to set aside one tract of land for conservation of a species, in exchange for assurances that building a subdivision on another tract will not violate the ESA.

Section 10 was not in the original ESA but was added by Congress in 1982. The driving factor behind adding section 10 was to provide private landowners a mechanism to ensure their operations complied with the ESA, something that did not exist in the original ESA. By aiming to increase conservation on private lands by shielding private landowners from ESA litigation, the program was intended to be a win-win for both endangered species and landowners.

Following the 1982 amendments, few landowners took advantage of section 10. A primary reason for this was that the legal assurances available were insufficient to incentivize landowners to undertake the costly and laborious permitting requirements—essentially, the juice was not worth the squeeze. Usage began to increase in the early 1990s due to federal prioritization of the program, and then spiked in 1998 when the federal services promulgated the “No Surprises” rule to increase the regulatory protections granted to permitholders. See Spirit of the Sage Council v. Norton, 411 F.3d 225, 227–28 (D.C. Cir. 2005) (detailing the historic development of the HCP program and No Surprises rule). The No Surprises rule clarified that once a permit is issued, “no additional land use restrictions or financial compensation will be required of the permit holder with respect to species covered by the permit, even if unforeseen circumstances arise after the permit is issued indicating that additional mitigation is needed for a given species covered by a permit.” Habitat Conservation Plan Assurances (“No Surprises”) Rule, 63 Fed. Reg. 8859 (Feb. 23, 1998). In practice this means that a deal is a deal—if a private landowner commits to doing something to get a permit, they will not be asked to take additional conservation measures in the future.

Even after 1998, HCPs failed to become commonplace in many sectors, including farming, forestry, and ranching, which control substantial amounts of land within the range of various endangered species. While certain individual farmers and foresters in the Pacific Northwest have availed themselves of section 10’s benefits, individual HCPs remain rare. This is in large part because the costs of the plans and permitting timelines are unacceptable to individual landowners. Instead, many of the HCPs developed after 1998 in the Pacific Northwest have been pursued and implemented by state and local governments, which also face substantial litigation risk under the ESA.

HCPs entered into by state and local governments take two distinct flavors. The first is an HCP to cover actions directly taken by that government. For example, the Washington Department of Natural Resources holds several million acres of timberland in trust upon which it harvests timber to support public service providers, who are the beneficiaries of those land trusts. Washington’s harvests on those lands are conducted pursuant to a forestry HCP that covers the state-managed trust lands. In cases like this, a state has decided that given the potential impacts associated with its own operations, pursuing ESA assurances was worthwhile.

The second type of HCP pursued by state governments is a programmatic HCP that extends section 10 protections to an entire sector through its integration into state law—what I call a sectorwide HCP. In the Pacific Northwest, this tool is being used to provide stability to the entire forestry sector, which has historically dealt with significant ESA risks. For example, Washington has a distinct sectorwide HCP that covers all private forestry operations conducted in the state. See Wash. St. Dep’t of Nat. Res., Forest Practices Habitat Conservation Plan. While this HCP is held by the state, the legal assurances it provides flow through to the individual landowners who obtain permits from the state, and who, pursuant to those permits, are required to follow the conservation measures established by the state-held HCP. Thus, Washington has stepped forward to permit its entire regulatory scheme pursuant to section 10 of the ESA, which then extends section 10 assurance to the entire forestry sector within the state. Oregon is similarly working to finalize a sectorwide forestry HCP for various fish and amphibian species. Or. Dep’t of Forestry, Private Forest Accord. Wisconsin, Michigan, and Minnesota have taken a similar approach to addressing concerns for various bat species. See, e.g., Wis. Dep’t of Nat. Res., Lakes States Forest Management Bat Habitat Conservation Plan.

Collectively, these sectorwide HCPs have provided high levels of conservation across tens of millions of acres of endangered species’ habitats that would never be covered by individual HCPs. This approach has been highly efficient at extending the reach of section 10. Additionally, because most sectorwide HCPs have arisen out of robust stakeholder processes, conservation has been turned into a collaborative effort between landowners and conservationists, which in the Pacific Northwest has been a welcome change after decades of contentious litigation. These sectorwide HCPs have created the win-win situation envisioned by Congress in 1982, and on a very broad scale that has not been accomplished through individual permits.

Given the emerging use of sectorwide HCPs, what can be done to more fully realize their benefits? First, the federal government needs to increase capacity to process section 10 permitting applications. In some areas, it is nearly impossible to get an HCP approved in a reasonable time because the USFWS and NOAA Fisheries are not adequately staffed. Due to these staffing limitations, even relatively small individual landowner HCPs can take a decade to finalize. If section 10 is ever to achieve its grand goals, a significant investment in staffing must be made by the federal government.

Second, sectorwide HCPs must be prioritized for processing, but the system must allow and encourage individualization. Section 10 is unlikely to have a significant impact in many sectors absent the use of sectorwide HCPs. It simply is not possible to craft and implement enough individualized plans. The federal government, and states, should prioritize the more efficient sectorwide approach. That said, landowner flexibility must be increased. Oregon’s pending sectorwide forestry HCP will cover 12 million acres; Washington’s similar HCP covers over nine million acres of forest. It is impossible for any plan to maximize benefits in every situation on land bases of this size—there routinely are needs for individualization from the baseline plan. Both Washington’s and Oregon’s statewide forestry HCPs allow for individual landowners to craft their own plans for approval by the federal services, and for these individual plans to displace the sectorwide plans. These individual plans almost surely will be more effective conservation tools and also will be better for landowners. However, to date, it has proven very difficult for individual landowners to interest the federal services in granting individual permits. This permitting responsibility may need to be outsourced to state wildlife agencies.

Third, the assurances granted must be realized and not erased through litigation. The primary value of sectorwide HCPs is that they almost always arise out of collaborative stakeholder processes that have significant political support. In these processes, stakeholders on both sides make sacrifices, and there are often entities on both sides that are not happy with the final plan. The result is that objecting parties may challenge these agreements as failing to meet section 10’s issuance criteria. To date, no sectorwide HCP in the Pacific Northwest has been struck down by the courts, but the threat exists. For example, in 2020 the USFWS approved the Deschutes River Basin Habitat Conservation Plan, which established a water management plan across 10,500 square miles (and multiple agricultural irrigation districts and a municipality) to benefit the Oregon Spotted Frog. Despite being crafted through a robust stakeholder process and enjoying broad support, in 2023 the Center for Biological Diversity provided formal notice of its intent to challenge the USFWS’s approval of the HCP. If courts begin to cut down sectorwide HCPs that have been produced through yearslong collaborative processes, it is likely that private parties will abandon this important tool.

It is not just challenges filed against the federal government’s permitting decisions that are problematic. A handful of cases have been filed against the Washington Department of Natural Resources (DNR) alleging that it is not in compliance with its state trust lands HCP. Essentially, these groups are attempting to step into the shoes of the federal government and enforce unique interpretations of the HCP’s requirements against the state. Attempts such as these are aimed to chip away at the assurances provided by section 10 and they strongly dissuade increased usage by private landowners. If section 10 does not actually control litigation risk as intended, it provides little value to landowners.

HCPs were designed to be a win-win solution for landowners and endangered species. There have been successes, but in many sectors the usage of individual HCPs has remained a rare occurrence. The solution to increase coverage is the sectorwide programmatic HCP, which, if properly prioritized by the federal government, can achieve major conservation on large swaths of land while also providing entire sectors’ key regulatory assurances.