Complex Permits under Section 10 of the Endangered Species Act

Kathleen C. Schroder Bjork Lindley Little PC

Denver, Colorado

David Zippin ICF International

San Francisco, California

I. Introduction ........................................................................................................................... 1

II. Background on Section 10 Permits ..................................................................................... 2III. Structures of Section 10 Permits ...................................................................................... 4

A. Individual Permits ............................................................................................................ 5

B. Programmatic or Master Permits with Certificates of Inclusion or Participation ............ 6

1. Regulatory Basis for Programmatic Permits ................................................................ 62. Advantages to Programmatic Permits .......................................................................... 83. Use of Programmatic Permits ....................................................................................... 8

C. General Conservation Plans ............................................................................................. 9

D. Primary Permit Conservation Plan ................................................................................. 11

E. Jointly Held Permits and Co-Permittees ........................................................................ 11

F. Mix-and-Match: Combinations of Permit Structures ........................................................ 12

IV. Considerations for Selecting a Permit Structure .......................................................... 14A. Timing of Permit Approval ............................................................................................ 14

B. NEPA Analysis and Section 7 Consultation .................................................................. 15

C. Monitoring and Reporting Obligations .......................................................................... 16

D. Effects on Confidentiality .............................................................................................. 16

V. Issues Surrounding Permit Compliance and Maintenance ............................................ 18

A. Permit Obligations by Third Parties ............................................................................... 18

1. Full Participation in a Permit or Conservation Plan ................................................... 182. Full Compliance with a Jointly Held Permit .............................................................. 203. Compliance Obligations of the Holder of a Master Permit ........................................ 21

B. Compliance Obligations of Individual Permittees and Participants .............................. 22

VI. Area Covered by Habitat Conservation Plans .............................................................. 23A. What Area Should a Multi-Species Conservation Plan Cover? ..................................... 23

B. Including Federal Land in Complex HCPs .................................................................... 25

VII. Which Species Should be Included in a Multi-Species HCP? ..................................... 28

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VIII. Amount of Incidental Take Authorized by a Complex Permit ................................ 31A. Amount of Incidental Take Authorized ......................................................................... 31

B. Allocation of Authorized Incidental Take ...................................................................... 32

IX. Conclusion ........................................................................................................................ 33

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I. Introduction

Section 10 of the Endangered Species Act (ESA) provides a seemingly straightforward mechanism to obtain permits authorizing the incidental take of listed species and permits authorizing the enhancement of their survival. Section 10 permits, however, can be anything but straightforward. Section 10 permits can cover thousands if not millions of acres, authorize incidental take by hundreds of actors, and apply to dozens of species. The most complex section 10 permits cover lands in states such as California, Florida, and Texas where most listed species occur and where urban development expanded rapidly in the last several decades. As the list of threatened and endangered species grows, land users in other parts of the country are expected to utilize more complex section 10 permits.

Complex section 10 permits are dynamic and can be structured to accommodate a wide variety of situations. One or more local governments can hold a section 10 permit to provide incidental take authorization to projects under their jurisdiction. A section 10 permit can cover a species’ entire range, which may span multiple states. A habitat conservation plan that accompanies an incidental take permit issued pursuant to section 10(a)(1)(B) permit can cover dozens of species, both listed and not listed. A consortium of state governments can hold a section 10 permit that spans multiple states and covers dozens of species. The permutations of section 10 permits are endless.

Despite their complexity and abundance, little guidance exists on complex section 10 permits. Most guidance on section 10 permits is aimed at single-permittee conservation plans. Handbooks published by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (collectively, “the Services”) contain limited guidance for programmatic permits—less than a page in the Services’ Habitat Conservation Planning Handbook and three pages in the FWS’s Draft Candidate Conservation Agreement with Assurances Handbook.1 Other guidance exists, but it is more regional and not issued by the agencies.2 Given the lack of formal guidance, this paper aims to provide insight on the development and use of complex section 10 permits.

First, this paper will provide background on section 10 permits, generally. Second, this paper will outline the different types of complex section 10 permit structures and identify some factors to consider when applications are selecting a type of permit structure. Third, this paper will identify issues associated with maintenance and compliance with complex permits. Fourth, this paper will detail considerations that should be taken into account when identifying the area to be covered by the section 10 permit. Fifth, this paper will outline considerations when determining which species to cover in a Habitat Conservation Plan (HCP) that accompanies an

1 FWS, Draft Candidate Conservation Agreements with Assurances Handbook at 42–44 (2003) (“CCAA Handbook”); FWS & NMFS, Habitat Conservation Planning Handbook at 3-39 – 3-40 (1996) (“HCP Handbook”). 2 See, e.g., Paul Cylinder et al., Understanding the Habitat Conservation Planning Process in California: A Guidebook for Project and Regional Conservation Planning (2004); John Hopkins, Regional Conservation Planning in California: A Guide (2004); Environmental Defense, Safe Harbor: Helping Landowners Help Endangered Species (1999).

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incidental take permit.3 Finally, this paper will explain how incidental take is authorized and allocated in section 10 permits.

II. Background on Section 10 Permits

Under section 10 of the ESA, the Services may issue a variety of permits, including permits “to enhance the propagation or survival” of a species. Additionally, the Services may issue permits that authorize the taking of listed fish and wildlife “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”4 The former are known as “enhancement of survival” permits and the latter are known as “incidental take permits.”

Incidental take permits are the most common because they provide exceptions to the ESA’s prohibition on take of listed fish and wildlife. The ESA sets forth criteria governing the issuance of incidental take permits. First, an incidental take permit may only be issued after preparation of a “conservation plan,” now known as an HCP, that specifies: (1) “the impact which will likely result from such taking”; (2) steps “to minimize and mitigate” the impacts of the taking and “the funding that will be available to implement such steps”; (3) “what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized”; and (4) “such other measures that the Secretary [of the Interior or Commerce] may require as being necessary or appropriate for purposes of the plan.”5 In addition to preparation of an HCP, the ESA requires the Services to make certain findings before issuing an incidental take permit.6 The Services have published a handbook governing the development of HCPs and issuance of incidental take permits.7 In January 2016, the FWS and NMFS are expected in January 2016 to publish a draft of the first major revision to the HCP Handbook since its publication in 1996.

The ESA does not impose similar statutory prescriptions on the issuance of enhancement of survival permits. Rather, the Services have released formal policies that establish the circumstances in which enhancement of survival permits are available.8 The Services will issue enhancement of survival permits to accompany Candidate Conservation Agreements with Assurances (CCAAs) and Safe Harbor Agreements (SHAs).9

CCAAs are prelisting conservation agreements intended to encourage non-federal property owners to engage in conservation activities on their property before species are listed.10 The intent of CCAAs, and the standard by which the Services will evaluate them, is that they set forth conservation measures that, if implemented on all necessary properties, would preclude or

3 16 U.S.C. § 1539(a)(2)(B). 4 Id. § 1539(a)(1). 5 Id. § 1539(a)(2)(A). 6 See id. § 1539(a)(2)(B). 7 HCP Handbook. 8 50 C.F.R. §§ 17.22(c) and (d), 17.32(c) and (d), 222.308; 64 Fed. Reg. 32,717 (June 17, 1999); 64 Fed. Reg. 32,726 (June 17, 1999). 9 64 Fed. Reg. at 32,717; 64 Fed. Reg. at 32,726. 10 See 64 Fed. Reg. at 32,726. An excellent summary of CCAAs is set forth in Amelia Orton-Palmer, “Candidate Conservation Agreements and Candidate Conservation Agreements with Assurances under the ESA,” Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S. 9-1 (Rocky Mt. Min. L. Fdn. 2012).

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remove the need to list the covered species.11 In exchange for their voluntary commitments to implement conservation measures for candidate species12 or species likely to become candidate species in the foreseeable future, non-federal property owners will receive assurances from the Services “that additional conservation measures will not be required and additional land, water, or resource use restrictions will not be imposed should the species become listed in the future.”13 In 2003, the FWS released a draft handbook for CCAAs that it has not finalized.14 Nonetheless, this draft handbook provides the best guidance for structuring CCAAs.

Whereas CCAAs are available for species that are not yet listed, SHAs are available for listed species.15 Like CCAAs, SHAs are intended to encourage non-federal property owners to voluntarily commit to implement conservation measures.16 Specifically, SHAs encourage property owners to “restore, enhance, or maintain habitats and/or populations of listed species that result in a net conservation benefit to these species.”17 Generally, in exchange for commitments to improve species or habitats above existing “baseline conditions” on the covered property, SHAs allow the property owner to “use the property in any manner that does not result in moving the enrolled property to below baseline conditions.”18 The Services’ SHA policy sets forth detailed standards and criteria that an SHA must meet,19 but the Services have not published any other formal or informal guidance regarding SHAs.

Although the criteria for approving HCPs, CCAAs, and SHAs differ,20 the process by which the Services will issue incidental take permits and enhancement of survival permits are generally the same.21 The ESA requires that the Services publish notice in the Federal Register of every section 10 permit application and allow at least 30 days of public comment.22 Additionally, the issuance of section 10 permits constitute “federal actions” that trigger the procedural requirements of the National Environmental Policy Act of 1969 (NEPA),23 section 7 of the ESA,24 and the National Historic Preservation Act of 1966 (NHPA).25 As a result, the Services often must prepare environmental assessments or environmental impact statements prior

11 64 Fed. Reg. at 32,726. 12 Candidate species are those species the FWS or NMFS have determined warrant listing as threatened or endangered but are precluded by higher priority listing proposals. See 16 U.S.C. § 1533(b)(3)(B)(iii). 13 64 Fed. Reg. at 32,726. 14 CCAA Handbook. 15 64 Fed. Reg. 32,717 (June 17, 1999). 16 Id. at 32,717. 17 Id. at 32,721. 18 Id. at 32,724. 19 Id. at 32,723. 20 Hereinafter, HCPs, CCAAs, and SHAs are collectively referred to as “conservation plans.” 21 The FWS general permit regulations at 50 C.F.R. part 13 and the NFMA’s permit regulations at 50 C.F.R. part 222 govern section 10 permits. See 50 C.F.R. pts. 13, 222. 22 16 U.S.C. § 1539(c). The Services’ HCP Handbook allows a minimum 30-day public review and comment period for low-effect HCPs. 65 Fed. Reg. 35,242, 35,247 (June 1, 2000). The HCP Handbook requires a minimum 90-day public review and comment period for large, complex HCPs developed without significant public involvement. Id. All other HCPs require a minimum 60-day public review and comment period. Id. The ESA allows the notice requirement to be waived in certain emergency situations. 16 U.S.C. § 1539(c). 23 42 U.S.C. § 4332(C). 24 16 U.S.C. § 1536(a). 25 54 U.S.C. §§ 300101 – 307108.

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to issuing a section 10 permit.26 Additionally, the Services must engage in an “intra-Service” section 7 consultation before issuing a section 10 permit that accompanies an HCP or SHA and must engage in an intra-Service section 7 conference or consultation before issuing a permit that accompanies a CCAA.27

As of October 16, 2015, FWS has issued 826 incidental take permits accompanying 701 HCPs in at least 33 states and Puerto Rico.28 Although incidental take permits have been available since 1982 when Congress amended the ESA to add section 10, they were slow to develop. Only fourteen incidental take permits were issued during the first 10 years (1983−1992) after Congress amended the ESA to authorize permits for incidental take under section 10.29 Incidental take permits became more popular after the Services during the Clinton Administration issued a draft of their “no surprises” assurances policy in 1997 and finalized it in 1998.30 The FWS has also issued relatively few enhancement of survival permits for SHAs and CCAAs (86 and 29 to date, respectively) although in almost as many states as HCPs (31, plus Guam). 31

Most of the Services’ guidance on section 10 permits is aimed at basic permits, in which the Services issue a permit directly to a single landowner who will implement the conservation measures and receive the associated incidental take authorization.32 The Services, however, have issued section 10 permits with extremely complex structures designed to cover large areas of land and many individual actors. When a land user requires or desires to enter into a section 10 permit, it should ask whether other land users also seek a section 10 permit to authorize take resulting from similar activities. If so, a section 10 permit with more complex structure may better suit the land user’s needs.

III. Structures of Section 10 Permits

One of the most fundamental questions encountered when developing a section 10 permit is how it should be structured. Several different permit structures are available depending on the potential permittee’s goals and needs. Consideration should be paid to the appropriate permit

26 See Dep’t of the Interior Departmental Manual, 516 DM § 8.5(c)(2) (categorically excluding low-effect HCPs from NEPA’s requirement to prepare an environmental impact statement or environmental assessment). 27 CCAA Handbook at 24 – 25; 50 C.F.R. § 402.10. The FWS treats candidate species as if they are proposed for listing when it engages in an intra-Service section 7 conference. CCAA Handbook at 24–25; see 16 U.S.C. § 1536(a)(4). Additionally, the Services must engage in an intra-Service conference or consultation to ensure that issuance of the enhancement of survival permit will not jeopardize the continued existence of any listed species or destroy or adversely modify its critical habitat. Id. at 24. 28 FWS ECOS Conservation Plans and Agreements database (“FWS ECOS Database”), http://ecos.fws.gov/conserv_plans/public.jsp (last visited Oct. 16, 2015). The number of permits exceeds the number of HCPs because multiple permits have been issued for some plans. NMFS does not maintain a public database of incidental take permits it has issued. 29 Dep’t of the Interior & Related Agencies Appropriations for Fiscal Year 1999: Hearing on H.R. 4193 & S. 22237 Before a Subcomm. of the S. Comm. On Appropriations, 105th Cong. 122 (1998) (Statements of Bruce Babbitt, Secretary of the Interior) 30 See id. at 122–23; 63 Fed. Reg. 8859, 8859 (Feb. 23, 1998). 31 FWS ECOS Database. 32 See 64 Fed. Reg. 32,717 (June 17, 1999); 64 Fed. Reg. 32,726 (June 17, 1999); CCAA Handbook; HCP Handbook.

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structure because it can affect the timing of permit approval, NEPA analysis, section 7 consultation, and participant confidentiality.

Traditionally, there are four types of structures for section 10 permits: individual permits, programmatic permits, individual permits issued under General Conservation Plans (GCPs), and single permits jointly held by multiple parties. The FWS has also proposed the use of Primary Permit Conservation Plans. Additionally, the Services will combine permit structures, as well as permit types, under a single conservation plan.

A. Individual Permits

The most straightforward permit structure is one in which the FWS or NMFS issues a permit to a single permittee who is “the land or other natural resource owner who proposes the project or activity and is responsible for implementing” the conservation plan.33 The permittee works directly with the FWS or NMFS to develop a conservation plan. Once the plan is finalized and the FWS or NMFS has complied with all procedural requirements, it issues the permit directly to the permittee. The permittee is responsible for all required mitigation, reporting, monitoring, and funding requirements.34 The Services’ HCP Handbook and the FWS’s CCAA Handbook primarily contemplate these types of permits, and the guidance in these handbooks is tailored toward these types of permits.

Individual permits are suited for situations in which one entity requires incidental take authorization for its activities. For example, the FWS recently sought public comment on HCPs that would accompany incidental take permits authorizing take of the Mojave desert tortoise resulting from the construction, operation, and maintenance of a solar photovoltaic facility,35 take of the California tiger salamander and the California red-legged frog from excavation and maintenance of a gas pipeline,36 and take of the San Bernardino Merriam’s kangaroo rat from construction activities associated with the development of residential houses.37

Individual permits have been issued for single and multiple species and for short- and long-term permits (up to 60 years). The majority of individual section 10 permits are issued for small project sites of less than 100 acres.38 Companies with large land holdings or linear infrastructure that spans large areas also use individual permits. Examples of large individual section 10 permits include the NiSource HCP approved in 2013 across more than 15,000 miles of gas pipeline alignments in 14 eastern states, the Pacific Gas & Electric Company Operations and Maintenance HCP in California approved in 2007, and the Plum Creek Timber HCP in Montana approved in 2000 that covers forest management and timber activities on approximately 1.7 million acres.39

33 HCP Handbook at 3-2. 34 See CCAA Handbook at 13, 17; HCP Handbook at 3-19 – 3-24, 3-34 – 3-35. 35 80 Fed. Reg. 53,559 (Sept. 4, 2015). 36 80 Fed. Reg. 52,486 (Aug. 31, 2015). 37 80 Fed. Reg. 41,052 (July 14, 2015). 38 Approximately two-thirds of incidental take permits are issued for sites of less than 100 acres based on a sample of 614 permits issued that have project size data in the FWS ECOS Database. 39 78 Fed. Reg. 68,465 (Nov. 14, 2013) (NiSource Multi-Species HCP); 56 Fed. Reg. 13,818 (Mar. 23, 2007) (PG&E Operations & Maintenance HCP); 65 Fed. Reg. 57,170 (Sept. 21, 2000) (Plum Creek Native Fish HCP);

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B. Programmatic or Master Permits with Certificates of Inclusion or Participation

Programmatic or master permits are used “to address a group of actions as a whole, rather than one at a time” through separate permits.40 The Services have observed that a programmatic HCP “might address a single related action occurring in many different places . . . or address a group of different actions occurring in the same place.”41 The key difference between a programmatic permit and other types of permit structures is that the permittee itself may not require incidental take authorization. Rather, the permittee administers the conservation plan and enrolls property owners. Property owners obtain incidental take authorization by entering into contractual agreements with the permittee, which are called “Certificates of Participation” or “Certificates of Inclusion.”42

1. Regulatory Basis for Programmatic Permits

The NMFS regulations allow issuance of “general incidental take permits” to “a group or organization whose members conduct the same or a similar activity in the same geographical area with similar impacts on listed species for which a permit is required.”43 Individuals receive coverage from the permit by executing Certificates of Inclusion.44 Notably, the NMFS regulations only authorize general incidental take permits and not general enhancement of survival permits.45 The NMFS incorporated general incidental take permits into its regulations in 1989,46 although the NMFS had long used general permits to authorize take under the Marine Mammal Protection Act of 1972.47

Programmatic permits are a newer concept to the FWS than the NMFS and are allowed by the FWS’s regulations governing permit transfer.48 These regulations, which apply to both incidental take permit and enhancement of survival permits, provide that “any person who is under the direct control of the permittee . . . may carry out the activity authorized by the

NiSource Multi-Species Habitat Conservation Plan (2013), available at http://www.fws.gov/midwest/endangered/permits/hcp/nisource/2013NOA/NiSourceHCPfinalJune2013.html; PG&E San Joaquin Valley Operation & Maintenance Habitat Conservation Plan (2007), available at http://www.fws.gov/ecos/ajax/docs/plan_documents/thcp/thcp_838.pdf; Plum Creek Timber Company Native Fish Habitat Conservation Plan (2000), available at http://www.fws.gov/montanafieldoffice/Endangered_Species/Habitat_Conservation_Plans/Plum_Creek_HCP/NFHCP/NFHCPCVR.PDF. 40 HCP Handbook at 3-39. Programmatic permits are sometimes referred to as “umbrella” permits. See CCAA Handbook at 32. The FWS, however, also refers to GCPs as “umbrella” plans. See Greater Sage-Grouse Umbrella CCAA for Wyoming Ranch Management (2013), available at http://www.fws.gov/wyominges/Pages/LandownerTools/CCAA/CCAA_GSG.html. To avoid confusion, this paper does not use the term “umbrella” to describe permits or plans. 41 HCP Handbook at 3-39. 42 See 64 Fed. Reg. 32,726, 32,727 (June 17, 1999); 64 Fed. Reg. 32,717, 32,719 (June 17, 1999); HCP Handbook at 3-39; CCAA Handbook at 42–43. 43 50 C.F.R. § 222.307(a)(2). 44 Id. § 222.307(a)(2). 45 See id. § 222.308. 46 54 Fed. Reg. 40,699 (Oct. 3, 1989). 47 See, e.g., 40 Fed. Reg. 41,531 (Sept. 8, 1975). 48 See HCP Handbook at 3-39 (stating in 1996 that “[b]ecause this is a relatively new concept, the Service strongly encourages that programmatic HCPs be developed in conjunction with the Regional and Washington Office.”)

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permit.”49 The FWS may also issue a programmatic permit to itself and enroll property owners through Certificates of Inclusion or Participation.50 Other programmatic permits are held by non-profit entities that enroll property owners through Certificates of Participation or inclusion.51

For permits that accompany an HCP, CCAA, or SHA that are issued to a state or local governmental entity, the permittee can establish “direct control” of participants through several mechanisms. The regulations provide that a person is under the “direct control” of a state or local governmental entity permittee if the person is under the jurisdiction of the permittee and the permit provides that the person may carry out the authorized activity.52 Programmatic HCPs with local municipality permittees often rely on the municipality’s jurisdiction to establish “control.” Municipalities often pass local ordinances to codify the requirements of the HCP into their land use authority.53

The FWS regulations specify that, with respect to permits accompanying an HCP, CCAA, or SHA, a person or entity is under the “direct control” of the permittee if it has “executed a written instrument with the governmental entity, pursuant to the terms of the implementing agreement.”54 Some governmental entities enroll property owners through Certificates of Participation or Inclusion.55 Alternatively, municipalities may modify their development agreement template to incorporate relevant provisions of the HCP that developers must then follow; in essence, these modified development agreements are equivalent to Certificates of Inclusion or Participation. State agencies may rely on permit or contract systems to achieve “direct control.” For example, the Desert Renewable Energy Conservation Plan was proposed with the California Energy Commission and California Public Utilities Commission as one of several permittees having jurisdiction over some renewable energy projects covered by the HCP.56 Similarly, the Bay Delta Conservation Plan would have covered the California Department of Water Resources, which has water contracts with local water agencies; the HCP

49 50 C.F.R. § 13.25(d). 50 See 73 Fed. Reg. 58,263 (Oct. 6, 2008); CCAA Handbook at 44. The terms “Certificate of Participation” and “Certificate of Inclusion” are used interchangeably and do not have distinct meanings. 51 See, e.g., 74 Fed. Reg. 44,378 (Aug. 28, 2009); 73 Fed. Reg. 62,526 (Oct. 21, 2008); 72 Fed. Reg. 21,283 (April 30, 2007); 71 Fed. Reg. 78,452 (Dec. 29, 2006); 71 Fed. Reg. 65,830 (Nov. 9, 2006). The FWS has stated that “private landowners may enter into a . . . programmatic agreement where a nongovernmental organization, State agency, or other entity applies for and holds the permit under which they enroll private landowners through a Certificate of Inclusion.” 70 Fed. Reg. 18,311, 18,313 (April 11, 2005) (emphasis added). See also HCP Handbook at 3-2 – 3-3 (explaining that when a governmental agency is not available to hold a permit, private groups may form a consortium to develop an HCP and hold the associated permit). 52 50 C.F.R. § 13.25(e). 53 See, e.g., San Jose, Cal., Code § 18.40 (implementing the Santa Clara Valley Habitat Conservation Plan/Natural Community Conservation Plan). 54 50 C.F.R. § 13.25(e)(2). 55 See, e.g., 77 Fed. Reg. 42,756 (July 20, 2012); 75 Fed. Reg. 60,802 (Oct. 1, 2010); Edwards Aquifer Recovery Implementation Program Habitat Conservation Plan at 2-8 (2012), available at http://www.eahcp.org/files/uploads/Final%20HCP%20November%202012.pdf; Benton County Prairie Species Habitat Conservation Plan at 7 (2010), available at https://www.co.benton.or.us/parks/page/prairie-species-habitat-conservation-plan. 56 79 Fed. Reg. 57,971 (Sept. 26, 2014).

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take authorization would have been extended to those water agencies through their water contracts with the state.57

2. Advantages to Programmatic Permits

Because programmatic permits authorize incidental take resulting from numerous activities over a large area, they often require a substantial investment of time to develop. In some circumstances, however, they may be more efficient to develop than multiple individual permits. The programmatic permit streamlines the procedural requirements of section 10 permitting. Because only one permit is issued, the procedural requirements of public notice and the opportunity for comment, NEPA analysis, NHPA compliance, and section 7 consultation occur once when the programmatic permit is issued. No further public comment, NEPA analysis, NHPA compliance, or section 7 consultation is required as participants enroll in the programmatic permit.58 Programmatic permits also reduce permitting burdens on individual participants because the holder of the permit, rather than the participant, is responsible for developing the permit application to the Services and any supporting conservation plan.59 Programmatic permits can also centralize and streamline monitoring and reporting obligations.

At the same time, the challenge presented by programmatic permits is that the Services must adequately understand the nature and scale of the impacts from multiple actions to be able to analyze them and authorize incidental take. The Services have observed that “[t]he central problem in preparing a programmatic HCP is having sufficient information to determine and evaluate the effects when the exact number and scope of actions taking place may be uncertain. As a result, HCPs will be successful only when the activities being addressed are well-defined, similar in nature, and occur within a described geographical area or at similar points in time.”60 Therefore, when evaluating whether to utilize a programmatic permit, a potential permittee must weigh permitting efficiencies against the ability to forecast the activities authorized by the permit and their impacts.

3. Use of Programmatic Permits

Programmatic permits come in a variety of shapes and sizes. Programmatic permits sometimes cover areas defined by jurisdictional boundaries, such as cities or counties.61 Programmatic permits can also cover some or all of a range of a species.62

57 80 Fed. Reg. 39,797 (July 10, 2015); see Bay Delta Conservation Plan/California WaterFix, available at http://baydeltaconservationplan.com/Home.aspx. 58 See 76 Fed. Reg. 41,510, 41,512 (July 14, 2011). 59 Environmental Defense, supra note 2, at 4. 60 HCP Handbook at 3-39. 61 79 Fed. Reg. 9913 (Feb. 21, 2014) (county-wide programmatic HCP); 78 Fed. Reg. 9066 (Feb. 7, 2013) (state-wide CCAA with the structure of a GCP for the greater sage-grouse). 62 See, e.g., 78 Fed. Reg. 76,639 (Dec. 18, 2013); 76 Fed. Reg. 62,087 (Oct. 6, 2011); 73 Fed. Reg. 62,526 (Oct. 21, 2008); Range-Wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus) (2014), available at http://www.fws.gov/coloradoes/Lesser_prairie_chicken/02%2028%2014%20Draft%20CCAA%20with%20CI%20Revised_Clean_WAFWA.pdf; Texas Conservation Plan for the Dunes Sagebrush Lizard (2012), available at http://www.fws.gov/southwest/es/Documents/R2ES/TX_CP_for_DSL_20120213.pdf; Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus) and Sand Dune Lizard

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Programmatic permits are most commonly used for CCAAs and SHAs. For non-listed species, if applied on a large scale (e.g., across a species’ range), they can be effective tools to reduce the chance of a future listing. Examples of such permits include the Gunnison sage grouse CCAA in southwest Colorado63 and the Programmatic CCAA for New England Cottontail in Maine.64

Programmatic SHAs can also be applied on a large scale to provide landowners with a streamlined means to obtain take authorization to conduct routine management activities that benefit listed species. Many of these programmatic SHAs have been prepared either by state land management agencies that manage large tracts of land or by environmental non-governmental organizations (NGOs) because they facilitate voluntary conservation on private lands. Examples of such section 10 permits include the Arizona Statewide SHA for Chiricahua Leopard Frog prepared by the state wildlife agency; the Texas Hill Country SHA for black-capped vireo and golden-cheeked warbler and the ocelot SHA in south Texas, both prepared by Environmental Defense; and the North Carolina Statewide SHA for red-cockaded woodpecker prepared by the state wildlife agency.65

C. General Conservation Plans

GCPs are similar to programmatic conservation plans because only one conservation plan is developed to support incidental take authorizations to multiple property owners. Unlike traditional conservation plans, GCPs are developed by the Services, rather than prospective permittees.66 Additionally, GCPs differ from programmatic permits because the Services issues

(Sceloporus arenicolus) in New Mexico (2008), available at https://www.fws.gov/southwest/es/Documents/R2ES/LPC_SDL_NM_CCA_CCAA_2008_final_signed.pdf. 63 70 Fed. Reg. 38,977 (July 6, 2005); Candidate Conservation Agreement with Assurances for Gunnison Sage-grouse (Centrocerucus minimus) between the Colorado Division of Wildlife and the U.S. Fish & Wildlife Service (2005), available at http://cpw.state.co.us/learn/Pages/CCAA.aspx. In this case, the state wildlife agency prepared the CCAA for use by ranchers and other landowners. 64 79 Fed. Reg. 37,342 (July 1, 2014); Programmatic Candidate Conservation Agreement with Assurances for the New England Cottontail in Southern Maine between the Maine Department of Inland Fisheries and Wildlife and the U.S. Fish and Wildlife Service (2014), available at http://ecos.fws.gov/docs/plan_documents/ccaa/ccaa_1275.pdf. This CCAA covers a wide range of activities across the historic range of the New England cottontail in Maine. See id. In September 2015, FWS announced that the conservation actions in this CCAA and other efforts will allow FWS to remove the New England cottontail from the candidate species list. 80 Fed. Reg. 55,286 (Sept. 15, 2015). 65 71 Fed. Reg. 43,788 (Aug. 2, 2006) (Chiricahua leopard frog SHA); 71 Fed. Reg. 29,350 (May 22, 2006) (red-cockaded woodpecker SHA); 71 Fed. Reg. 8864 (Feb. 21, 2006) (ocelot SHA); 70 Fed. Reg. 51,088 (Aug. 29, 2005) (amendment to black-capped vireo and golden-cheeked warbler SHA); 65 Fed. Reg. 24,222 (April 25, 2000) (black-capped vireo and golden-cheeked warbler SHA); SHA for the Chiricahua Leopard Frog in Arizona between Arizona Game & Fish Department and U.S. Fish & Wildlife Service (2006), available at https://www.fws.gov/southwest/es/arizona/Documents/Safe%20Harbors/CLF/AZ%20CLF%20SHA.pdf; North Carolina State-Wide Red-Cockaded Woodpecker SHA (2006), available at http://www.ncwildlife.org/Portals/0/Conserving/documents/Safe Harbor Program/NC SHA final March 2006.pdf; SHA between Environmental Defense, Inc. and the U.S. Fish & Wildlife Service to Provide Safe Harbor Assurances to Landowners in the Texas Hill Country Who Voluntarily Agree to Enhance Habitat for the Endangered Golden-Cheeked Warbler and Black-Capped Vireo (2000), available at http://www.ibrarian.net/navon/paper/SAFE_HARBOR_AGREEMENT_BETWEEN_ENVIRONMENTAL_DEFEN.pdf?paperid=10954239. 66 Memorandum from FWS Director H. Dale Hall to Assistant Regional Directors Regions 1 -7 & Manager California/Nevada Operations Office 2 (Oct. 5, 2007) (“Final GCP Policy”).

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a separate permit to each participant rather than a single permit that authorizes incidental take resulting from the actions of multiple property owners.

The FWS’s guidance for GCPs contemplate that they are a form of a HCP, rather than a CCAA or a SHA.67 GCPs must fulfill all of the criteria in section 10(a)(1)(B) of the ESA, except that they will lack the name of the applicant or permittee.68 The FWS advises that GCPs are “not a substitute for a regional multiple action HCP” because the FWS may lack the expertise and ability to analyze “all activities for which a county or other jurisdiction may require coverage under a 10(a)(1)(B) permit.”69 Rather, “the GCP will be most useful in situations in which a smaller subset of activities, such as building single family homes, a specific type of agricultural practice, or similar activities of limited scope can be described and their impacts to listed species and their habitats can be adequately analyzed by the Service.”70

The Services will prepare a single NEPA document and a single intra-Service biological opinion to comply with section 7 of the ESA for the GCP; it need not prepare separate analyses or opinions as it issues permits under the GCP.71 Because the Services issue separate permits, however, they must separately comply with the statutory public notice and comment requirements of the ESA for each individual permit.72

One of the challenges of completing a GCP is the high degree of uncertainty in how much it will be used and, therefore, how much take authorization might be allocated. In some instances FWS has overcome this uncertainty by limiting the covered activities under the GCP only to very small projects or for a short period of time.

Examples of approved GCPs include the Oil and Gas Industry GCP for American burying beetle in eastern Oklahoma,73 the Alabama beach mouse GCP in Alabama,74 the Florida

67 Final GCP Policy at 1. The FWS’s CCAA Handbook, however, describes a form of GCPs for CCAA. See CCAA Handbook, app. 10, “CCAA Structure for Programmatic Agreement Type 1B.” 68 Id. at 3. 69 Id. at 4. 70 Id. 71 Id. at 3. 72 See 16 U.S.C. § 1539(c); 76 Fed. Reg. 14,510, 41,512 (July 14, 2011); Final GCP Policy at 3. 73 This plan, approved in 2014, was issued with a two-year term as an interim strategy while an HCP with a longer term was developed to replace it (although permits issued under the plan can have a duration up to 20 years). See Oil and Gas Industry Conservation Plan Associated with Issuance of Endangered Species Act Section 10(a)(1)(B) Permits for the American Burying Beetle in Oklahoma § 1.4 (2014). Before the new HCP is developed, the interim HCP may be amended to extend the plan for another three years. Personal Communication between David Zippin and Marty Tuegel, FWS HCP Coordinator, Region 2, Albuquerque, New Mexico (2015). This plan has proven popular, with several section 10 permits issued under it already. See, e.g., 80 Fed. Reg. 53,557 (Sept. 4, 2015); 80 Fed. Reg. 30,485 (May 28, 2015); 80 Fed. Reg. 18,862 (April 8, 2015); 80 Fed. Reg. 8684 (Feb. 18, 2015); 80 Fed. Reg. 3975 (Jan. 26, 2015); 80 Fed. Reg. 2724 (Jan. 20, 2015); 79 Fed. Reg. 70,544 (Nov. 26, 2014); 79 Fed. Reg. 64,401 (Oct. 29, 2014); 79 Fed. Reg. 54,285 (Sept. 11, 2014); 79 Fed. Reg. 44,857 (Aug. 1, 2014); 79 Fed. Reg. 43,504 (July 25, 2014). 74 77 Fed. Reg. 18,857 (Mar. 28, 2012); Template, Habitat Conservation Plan Alabama Beach Mouse, available at http://www.fws.gov/daphne/es/abm/pdf/HCP-Template-6-1-07.pdf. This GCP covers small-lot residential development that may affect dune habitat for the Alabama beach mouse. Over 50 section 10 permits have been issued under this GCP to date, making it the most widely used in the country. See FWS ECOS Database, Species Profile for Alabama beach mouse, Conservation Plans.

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scrub jay GCP in Florida,75 and the Atlantic salmon GCP in Maine.76 Although the FWS guidance on GCPs anticipates that HCPs are a form of HCPs, the FWS has developed CCAAs with a GCP structure, such as a CCAA for rangeland management in Wyoming to conserve the greater sage-grouse.77

D. Primary Permit Conservation Plan

The FWS has proposed the use of a Primary Permit Conservation Plan. A Primary Permit Conservation Plan is similar to a programmatic permit because the permit is held by a third party. Unlike a programmatic permit, however, participants do not enroll in the permit; instead, coverage under the permit is transferred to individual participants under the FWS’s permit transfer regulation.78 In order to receive the permit, the transferee must meet the FWS’s regulatory qualifications to hold a section 10 permit and provide written assurance that it will provide sufficient funding and implement the terms and conditions of the permit.79 The advantage of this approach, like programmatic permits, is that all NEPA analysis and section 7 consultation would occur once when the permit is first issued.80 Before transferring a permit, however, the FWS may publish a Notice of Intent to issue the permit with transfer authorities in the Federal Register.81 The FWS recently proposed this structure as a possibility for the Great Plains Wind Energy HCP.82

E. Jointly Held Permits and Co-Permittees

Jointly held permits are single permits issued to multiple parties that are co-permittees. Whereas programmatic permits usually involve one permit holder and multiple participants in the permits, jointly held permits involve multiple parties holding a single permit. The permittees remain jointly responsible for complying with the terms and conditions of the permits. The FWS or NMFS may terminate an entire permit based on one permittee’s violation of its terms. Often, to facilitate implementation of the jointly held permit, the permittees will enter into an

75 71 Fed. Reg. 17,486 (April 6, 2006); Florida Scrub-Jay Umbrella Habitat Conservation Plan and Environmental Assessment (2007), available at http://www.fws.gov/northflorida/Scrub-Jays/scrubjays.htm. This GCP covers the entire range of the Florida scrub jay, across 34 counties in central Florida, but is limited to projects less than one acre in size. See id. Very few permits have been issued under this GCP to date, perhaps because several counties have also completed their own HCPs in the same area. Personal Communication between David Zippin and Trish Adams, FWS National HCP Coordinator, Washington, D.C. (2014). 76 76 Fed. Reg. 78,243, 78,244 (Dec. 16, 2011). This GCP, one of the first prepared by NMFS, covers landowners who wish to remove dams for the purposes of restoring flows and improving passage for salmon recovery. See Atlantic Salmon GCP, http://www.greateratlantic.fisheries.noaa.gov/protected/altsalmon/conservation/. 77 See 78 Fed. Reg. 9066 (Feb. 7, 2013); Greater Sage-Grouse Umbrella CCAA for Wyoming Ranch Management, Executive Summary, supra note 40. This CCAA was prepared by a large coalition of organizations led by the Wyoming Governor’s Office. 78 See, e.g., 76 Fed. Reg. 41,510, 41,512 (July 14, 2011). The FWS’s regulations at 50 C.F.R. § 13.25, and the NMFS’s regulations at 50 C.F.R. § 222.305, allow transfer of section 10 permits. 79 50 C.F.R. §§ 13.21, 13.25(b). Cf. 78 Fed. Reg. 73,704, 73,707 (Dec. 9, 2013) (noting this approach “makes possible multi-participant or programmatic arrangements in which FWS can issue an ESA or [Bald and Golden Eagle Protection Act] permit to a single permittee who can then transfer the authority of that permit to one or more transferees with the approval of the FWS”). 80 See 76 Fed. Reg. at 41,512; 67 Fed. Reg. 57,970, 57,971-72 (Sept. 13, 2002). 81 76 Fed. Reg. at 41,513. 82 See id. at 41,512–13.

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implementing agreement with the FWS,83 which “legally binds the permittee to the requirements and responsibilities of a conservation plan and section 10 permit.”84 Often, implementing agreements “assign the responsibility for planning, approving, and implementing the mitigation measures under the HCP” or conservation plan.85 Additionally, to facilitate implementation of the plans, the permittees form joint powers authorities that administer the plans.86

Examples of jointly held permits include the Balcones Canyonlands HCP, for which the incidental take permit is jointly held by the City of Austin and Travis County, Texas87; the Clark County Multiple Species HCP, for which the incidental take permit is jointly held by Clark County, Nevada, the cities of Las Vegas, North Las Vegas, Henderson, Boulder City, and Mesquite, Nevada, and the Nevada Department of Transportation88; the County of San Diego Multiple Species Conservation Program, for which the incidental take permit is jointly held by the City of San Diego, California, the County of San Diego, California, the Cities of Chula Vista, Coronado, Del Mar, and Santee, California, and the Otay Water District89; and the Natomas Basin HCP, for which the incidental take permit is held by the City of Sacramento, California, Sutter County, California, and the Natomas Basin Conservancy.90

F. Mix-and-Match: Combinations of Permit Structures

Section 10 permit become particularly complex when these various permit structures are combined. Most frequently, permits are jointly held by multiple governmental entities, which then extend the permit to covered projects and activities under their jurisdiction through their development review process (e.g., discretionary issuance of grading or building permits) or by issuing Certificates of Inclusion or Participation to participants. The first HCP in the country, the San Bruno Mountain HCP, first adopted this approach in California.91 Under this plan, the permittees—a county and three cities—were authorized to incidentally take listed species as a result of the activities of residential and commercial developers in their jurisdictions.92 Land management activities on county park lands were also authorized to incidentally take listed species.93 Since issuance of the San Bruno Mountain HCP in 1982, most HCPs sponsored by

83 See, e.g., Clark County Multiple Species Habitat Conservation Plan and Environmental Impact Statement for Issuance of a Permit to Allow Incidental Take of 79 Species in Clark County, Nevada, app. J, Implementation Agreement Clark County Multiple Species Habitat Conservation Plan (2000), available at http://www.clarkcountynv.gov/Depts/dcp/Documents/Library/Guiding%20Docs/current/ImplementingAgreement1.pdf. 84 HCP Handbook at 8-3. See also Hopkins, supra note 2, at 114. 85 HCP Handbook at 8-3. The FWS and NMFS recommend implementing agreements for complex conservation plans “that address significant portions of a species range or involve numerous activities or landowners, for [conservation plans] with long-term mitigation and monitoring programs, or where habitat protection programs are complicated or have other special features.” Id. at 3-36. 86 Hopkins, supra note 2, at 60. 87 55 Fed. Reg. 31,453 (Aug. 2, 1990). 88 65 Fed. Reg. 57,366 (Sept. 22, 2000). 89 61 Fed. Reg. 45,983 (Aug. 30, 1996). 90 67 Fed. Reg. 54,819 (Aug. 26, 2002). 91 See 47 Fed. Reg. 32,208 (July 26, 1982); San Bruno Mountain Area HCP (1982), available at http://parks.smcgov.org/sites/parks.smcgov.org/files/documents/files/SBMHCP_Final_Volume1_November1982.pdf. 92 San Bruno Mountain Area HCP, supra note 91, at V-14. 93 Id. at V-1 – V-2.

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local governments have since adopted a similar structure and authorized incidental take either though the general land use authority of the jurisdiction, Certificates of Inclusion, or grading or building permits issued pursuant to the terms of HCP, implementing agreement, and the incidental take permit.94 A benefit of this approach is that it allows small jurisdictions or special districts to participate in an HCP without being a sole permittee and going through the expense of preparing their own HCP.

G. Mix-and-Match: Combinations of Permit Types

Recently, the FWS has begun to explore a new configuration of section 10 permits: combinations of incidental take permits and enhancement of survival permits. Under this approach, the FWS develops a CCAA that applies to activities while a species is not listed. At the same time, the FWS also develops an HCP that authorizes incidental take of the same species after the species is listed. The rationale behind this type of plan is that, if the covered species is listed in the future, an HCP exists that the FWS can immediately process.

This permit configuration is aimed at situations in which there are multiple actors who may not wish to join the pre-listing CCAA or may not be eligible to participate in the CCAA before the species is listed. In 2012, the FWS adopted a conservation plan for the dunes sagebrush lizard in Texas that was both a CCAA and an HCP to address these very situations.95 The primary participants in this plan were oil and gas operators, and they required a mechanism to obtain incidental take authorization for activities occurring on oil and gas leases they acquired after any decision to list the species.96

This approach presents unique issues worthy of consideration. First, if the pre-listing and post-listing agreements are intended to have identical conservation measures and mitigation requirements, then one of the agreements may be required to adhere to a higher conservation standard than would normally be required. For example, the FWS imposes a higher conservation standard on CCAAs than HCPs. Participants in CCAAs must commit to conservation measures with benefits that, when combined with those benefits that would be achieved if it is assumed that conservation measures were also implemented on other necessary properties, would preclude or remove the need to list the species.97 In contrast, participants in HCPs need only minimize and mitigate the impacts of a taking to the maximum extent practicable.98 In a combined CCAA/HCP, however, the participants in the HCP must commit to conservation measures that meet the CCAA standard.99 Accordingly, potential participants must evaluate whether they are

94 See 50 C.F.R. § 13.25(e) (2014). See, e.g., Coachella Valley Multiple Species HCP and Natural Community Conservation Plan (2007), available at http://www.cvmshcp.org/Plan_Documents_old.htm; Federal Fish & Wildlife Permit No. TE104604-0 (Oct. 1, 2008); East Contra Costa County HCP and Natural Community Conservation Plan § 8.2.1 (2006), available at available at http://www.co.contra-costa.ca.us/depart/cd/water/HCP/archive/final-hcp-rev/final_hcp_nccp.html; Western Riverside County Multiple Species Conservation Plan, Vol. I, § 6.0; Vol. III, Implementation Agreement, Ex. F (2003), available at http://www.wrc-rca.org/library.asp. 95 See Texas Conservation Plan for the Dunes Sagebrush Lizard, supra note 62. 96 See generally id. 97 64 Fed. Reg. 32,726, 32,733 (June 17, 1999). 98 16 U.S.C. § 1539(a)(2)(B)(ii). 99 Texas Conservation Plan for the Dunes Sagebrush Lizard, supra note 62, at 81 (“since this Plan combines both a CCAA and an HCP, and the intent is to retain consistent standards for both pre- and post-listing activities . . . .”).

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willing to commit to a post-listing standard that is higher than what would ordinarily be required in an HCP.

Second, this approach carries a risk that if and when the covered species is listed, the conservation measures in the HCP will require modification. When the FWS approves the HCP, it does not issue a permit. The FWS’s approval of the HCP, absent issuance of the permit, does not carry the “no surprises” assurances that attach to a section 10 permit.100 Conceivably, years may pass before the covered species is listed, during which time the conservation measures in the HCP may require modification. If the species is listed, nothing prohibits the FWS from requiring changes to the HCP to impose more stringent conservation measures or heightened mitigation if the FWS deems them necessary to minimize and mitigate the impact of the taking. Accordingly, depending on when the species is listed, the development of the HCP may be less efficient than originally planned. Nonetheless, a combined pre-listing and post-listing conservation agreement provides potential permittees with yet another option when evaluating how to structure conservation plans.

IV. Considerations for Selecting a Permit Structure

Several factors affect the suitability of a particular type of permit structure in a given situation, including the timing of permit approval, responsibility for monitoring and reporting, and effects on confidentiality.

A. Timing of Permit Approval

The timing of permit approval often influences the permit structure. First, individual permits can be developed more quickly than programmatic permits, GCPs, and jointly held permits. Because individual permits are issued for a single project or group of similar projects, the area covered by an individual permit is relatively discrete and the impacts are generally known. In contrast, master permits, GCPs, and jointly held permits can cover large areas, may authorize incidental take by multiple actors, and may authorize incidental take from actions with unknown locations. As a result, the conservation plan that accompanies an individual permit can be formulated more quickly than a conservation plan that accompanies a permit for multiple actions or actors. Similarly, because impacts are more certain in an individual permit, the avoidance, minimization, and mitigation measures that will be incorporated into the conservation plan, as well as alternative actions, can be developed more easily than for a permit for multiple actions that occur over a long period of time.101

Although individual permits can be developed more quickly than general permits, individual permits can lose their efficiency when similar actions are authorized repeatedly with separate individual permits. In its CCAA Handbook, the FWS explained:

A CCAA with an individual property owner is often believed to be the simplest CCAA to develop. However, that may not always be true. When making the

100 63 Fed. Reg. 8859, 8867 (Feb 23, 1998) (“The No Surprises assurances apply only to incidental take permits issued in accordance with the requirements of the Services’ regulations where the conservation plan is being properly implemented . . . .”). 101 See HCP Handbook at 3-39.

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decision to enter into a CCAA with a single property owner, the Service needs also to consider whether or not the CCAA could be modified to become a programmatic CCAA. It takes roughly the same amount of time for the Service to review and process a programmatic CCAA as it does a single property owner CCAA (i.e., the steps are the same). Therefore, the Service could assume that where one property owner is interested in the conservation of unlisted species, there may be others, and developing a programmatic CCAA instead of numerous single property owner CCAAs for the same species would save the Service and the interested property owners effort and funding as other property owners come forward to participate under the umbrella of a programmatic CCAA.102

Second, the statutory timeframes to issue permits under the ESA can affect the permit structure. The ESA requires that the Services publish a notice in the Federal Register of each permit application and allow public comment on the application.103 For permit structures in which only one permit is issued—such as individual permits, programmatic permits, and jointly held permits—the Services need only comply with the notice requirements once. In contrast, because separate permits are issued under GCPs, the Services must notice each permit separately and allow separate public comment periods for each permit.104 These notice and comment periods are in addition to a notice and comment period on the entire GCP and the associated NEPA analysis before any permits are issued.105

B. NEPA Analysis and Section 7 Consultation

Compliance with NEPA and section 7 of the ESA also influence permit structure. Just as individual permits must be afforded separate public notice and comment opportunities,106 the issuance of each permit triggers the Services’ obligation to comply with NEPA and section 7 of the ESA. For GCPs, the Services can streamline the NEPA process by preparing a single environmental impact statement (EIS) or environmental assessment (EA), as well as a single biological opinion, for the GCP for all permits to be issued under the GCP.107 Similarly, for jointly held permits and programmatic permits, because the Services would only issue one permit, they need only comply with NEPA and section 7 consultation once prior to issuing the permits.

Although the Services need only prepare one NEPA document when issuing programmatic permits, permits under a GCP, or jointly held permits, the level of NEPA analysis will depend on the complexity, scope, and duration of the conservation plan. To assess the appropriate level of NEPA analysis, one district court has examined the duration of a permit and whether the associated HCP crossed jurisdictional boundaries; the court held that an EIS was required because the HCP involved “a complex 50 year plan for a large region of important

102 CCAA Handbook at 42. 103 16 U.S.C. § 1539(c). Although the ESA requires a 30-day comment period, the Services have directed that only “low effect” HCPs should be subject to a 30-day comment period and other HCPs should have 60- or 90-day comment periods. 65 Fed. Reg. 35,242, 35,249 (June 1, 2000). 104 See 16 U.S.C. § 1539(c). 105 Final GCP Policy at 3. 106 See 16 U.S.C. § 1539(c); Final GCP Policy at 3. 107 Final GCP Policy at 3.

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habitat and development lands extending beyond the jurisdiction of any one local government unit.”108 Accordingly, the complexity, scope, and duration of the underlying plan may compel preparation of an EIS.

C. Monitoring and Reporting Obligations

Another consideration when assessing how to structure permits is the required monitoring and reporting obligations. When determining whether to pursue an individual permit, potential permit applicants should assess the amount of monitoring and reporting that will be required.109 If intensive monitoring and reporting will be required, a programmatic permit held by a third party may be advantageous because it can shift some or the entire burden of monitoring and reporting to the permit holder.110 Similarly, with a jointly held permit, the permit holder may be able to distribute the cost of monitoring and preparation of reports among the co-permittees.

D. Effects on Confidentiality

Often, potential participants in section 10 permits have an interest in keeping certain information confidential. Private landowners may not want to disclose information about the number and type of species that can be found on their properties or the lands they have enrolled in the plan.111 Similarly, oil and gas operators often seek to avoid disclosing information about their mineral leases.112 The need for potential participants to keep information confidential is in tension with the need to obtain incidental take authorization for activities on lands they plan to cover or enroll in a CCAA prior to a decision to list a species. Whereas an operator can defer including leases or well locations in an HCP until it requires incidental take authorization for planned development activities,113 operators may not be able to delay including leases in a

108 Nat’l Wildlife Fed'n v. Babbitt, 128 F. Supp. 2d 1274, 1302 (E.D. Cal. 2000). The Services’ CCAA policy, however, suggests that EAs may be appropriate for CCAAs. 64 Fed. Reg. 32,726, 32,735 (June 17, 1999) (“The Services expect that most Candidate Conservation Agreements with assurances and associated enhancement of survival permits will result in minor or negligible effects on the environment and will be categorically excluded from individual NEPA analysis. When the impacts to the environment are expected to be more than minor, individual NEPA analysis will be required. Complex, large-scale, or programmatic Agreements and their associated permits typically will be subject to individual NEPA analysis.”). 109 See CCAA Handbook at 30–31; HCP Handbook at 3-34 (“Large-scale, regional HCPs should require funds for long-term needs such as biological monitoring . . . .”).. 110 See HCP Handbook at 3-26, 3-34. 111 See Environmental Defense, supra note 2, at 12. 112 Although state regulations require operators disclose their names once they commence development operations, see, e.g., 2 Colo. Code Reg. § 404-1-303(a)(5)(D)(xv), operators often attempt to avoid disclosing leasehold information before commencing operations. The location of mineral leases may tip an operator’s competitors off to where the operator is prospecting. Additionally, the location of mineral leases may allow competitors to negotiate for “top leases” that become effective upon the expiration of existing leases. See generally Hugh C. Garner, “The Ethics of Top Leasing,” Implied Covenants 19B-1 (Rocky Mt. Min. L. Fdn. 1986). Leasehold information is publicly available in county records, but accessing this information requires an intensive search of property records. Furthermore, such a search will reveal leasehold information for a given tract of land but will not easily reveal aggregated information about the number of leases a company has secured in a given area. 113 See Oil & Gas Industry Conservation Plan Associated with Issuance of Endangered Species Act Section 10(a)(1)(B) Permits for the American Burying Beetle in Oklahoma, supra note 73, at 4.

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CCAA until operations are proposed.114 Therefore, to participate in a CCAA, operators must enroll leases in it before development is proposed on the lease, if ever.

Participation in a conservation plan may subject information about the covered area to public disclosure under the ESA. The ESA provides that “[i]nformation received by the Secretary as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding.”115 The FWS permit regulations require that applications for section 10 permits include the “[l]ocation where the requested permitted activity is to occur or be conducted.”116

Land users may wish to structure a section 10 permit to avoid the disclosure of confidential information. A programmatic permit held by a third-party may be enable participants to keep some participant information confidential while allowing the Services to obtain the information they need to enforce the permit. When a programmatic permit covers a broad area and is available to multiple participants, only the entire permit is subject to public review and comment. The Services generally do not seek review or comment on the execution of individual Certificates of Inclusion or Participation by individual participants. Therefore, Certificates of Inclusion or Participation allow property owners to participate in a conservation plan without disclosing which lands they are enrolling to the public at large.117 Similarly, to the extent the conservation plan charges the master permittee with reporting obligations, the master permittee can aggregate reporting information to avoid identifying individual participants.118 Although the public may be able to access non-confidential information contained in Certificates of Inclusion or Participation through a request submitted under Freedom of Information Act,119 programmatic permits nonetheless allow participants to maintain a degree of confidentiality.

Recent enhancement of survival permits available to oil and gas operators have utilized programmatic permits that afford participants some degree of confidentiality.120 The permits are held by third-parties and cover relatively large areas ranging from several counties to several

114 The FWS has interpreted its CCAA Policy as not allowing enrollment of new lands in a CCAA after a species has been listed. See Range-Wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus), supra note 62, at 6 (“Currently, the FWS has not proposed and does not have any policies that provide for post-listing enrollment of a property in a CCAA.”). 115 16 U.S.C. § 1539(c). The HCP Handbook, however, suggests that the Services may withhold confidential, proprietary, or individual private information included in the permit application package to the extent the information falls within a Freedom of Information Act exemption. HCP Handbook 6-22. If an application contains information that may be deemed “confidential business information” or could cause “competitive harm,” the FWS must notify the submitter of the information. Id.; see 43 C.F.R. §§ 2.27, 2.28. 116 50 C.F.R. § 13.12(a)(2). 117 Environmental Defense, supra note 2, at 12. 118 Id. 119 5 U.S.C. § 552(b)(4). See also Range-Wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tempanuchus pallidicinctus), supra note 62, at 46 (“The Parties recognize that fee leasehold and mineral ownership information is confidential and sensitive business information held and not routinely disclosed and may be exempt from disclosure under the Freedom of Information Act (FOIA).”). 120 78 Fed. Reg. 76,639 (Dec. 18, 2013); Range-Wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus), supra note 62; Texas Conservation Plan for the Dunes Sagebrush Lizard, supra note 62; Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus) and Sand Dune Lizard (Sceloporus arenicolus) in New Mexico, supra note 62.

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states.121 Operators obtain incidental take authorization by enrolling lands within the permit area via Certificates of Inclusion or Participation.122 These structures allow participants to maintain some confidentiality despite their participation in the conservation plans.

V. Issues Surrounding Permit Compliance and Maintenance

The structure of complex permits presents significant compliance considerations and potential risks. Generally, a permittee or participant in a conservation plan must be attuned to two categories of compliance issues: compliance by third parties, such as master permittees and co-permittees; and compliance by the permittees or participants themselves.

A. Permit Obligations by Third Parties

When an individual entity does not solely hold a section 10 permit, it shares liability with its co-permittee (for jointly held permits) or relies on the master permittee (for programmatic permits) to ensure that the permit remains in effect. Jointly held permits and programmatic or master permits present different issues with permit maintenance and compliance, but entities seeking incidental take authorization through complex permits must recognize the issues they present.

1. Full Participation in a Permit or Conservation Plan

In cases of jointly held permits and GCPs, the effectiveness of the permit may depend on all permittees’ participation and compliance with its terms. At least one court has invalidated an incidental take permit when it was not held by all of the co-permittees described in the associated HCP.123 In 2000, the U.S. District Court for the Eastern District of California set aside an incidental take issued that accompanied the Natomas Basin HCP.124 This HCP was designed as a programmatic permit to cover an area managed by five jurisdictions and special districts, and it was premised on the assumption that these five agencies and jurisdictions would seek incidental take permits.125 Ultimately, however, only one jurisdiction (the City of Sacramento) applied for and received a permit.126 A court set aside this permit for several reasons, including the FWS’ failure to evaluate the possibility that the two counties planned for participation in the HCP would not seek permits under the HCP.127

In 2003, the FWS approved a revised Natomas Basin HCP with modifications intended to remedy the deficiencies identified by the court.128 Among these modifications, the HCP 121 Compare Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus) and Sand Dune Lizard (Sceloporus arenicolus) in New Mexico, supra note 62 (covering several New Mexico counties) with Range-Wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus), supra note 62 (covering species’ range over five states). 122 Id. 123 Nat’l Wildlife Fed’n v. Babbitt, 128 F. Supp.2d 1274, 1295–96 (E.D. Cal. 2000). This HCP was approved in 1997. 124 See id. 125 Id. at 1280, 1290. 126 Id. at 1298–99. 127 Id. 128 Natomas Basin Habitat Conservation Plan at I-26 – I-28 (2003), available at http://www.natomasbasin.org/helpful-documents/2003-nbhcp-related-documents/.

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included a severability clause specifying the effect of less than full permittee participation under the plan:

If one of the Land Use Agencies fails to obtain its Permits or has its Permits revoked for failure to comply with the [Natomas Basin HCP], the essential effect to the implementation of the [Natomas Basin HCP] is that less Authorized Development is covered by the [Natomas Basin HCP]. With regard to funding adequacy, the reduction in Authorized Development would result in a similar reduction in acres of mitigation land to be acquired, restored, managed, enhanced and administered as reserve lands in perpetuity. Therefore, [The Natomas Basin Conservancy] would have adequate funding to continue to implement the [Natomas Basin HCP] as it applies to the reduced Authorized Development and the Covered Activities within the participating Land Use Permittees’ Permit Area. Additionally, if [The Natomas Basin Conservancy] were to implement the [Natomas Basin HCP] under these circumstances, the [Natomas Basin HCP] provides for adjustments to the Mitigation Fee as necessary, to fund the acquisition, restoration, creation, enhancement and management of reserves on a 0.5 to 1.0 mitigation basis.129

Once the HCP was approved, only two of the five jurisdictions covered by the HCP applied for incidental take permits.130 These two permits were then challenged in federal court.131 This time, however, the court upheld the permits, reasoning that the FWS had corrected the deficiencies in the HCP. The court explained that “unlike the 1997 HCP, the non-participation of the other jurisdictions is specifically considered and addressed in the present [Natomas Basin HCP]; the Secretary determined that the lack of participation would not negatively impact implementation of the plan.”132

The Natomas Basin HCP demonstrates that when a conservation plan provides for a certain level of permittee participation but full participation cannot be guaranteed, the plan should account for the possibility that not full participation may not occur. The plan should ensure that, even without full participation, the necessary conservation commitments and funding commitments can be met to achieve the ESA’s standards for issuing section 10 permits and for federal agency authorizations under section 7.133 Furthermore, the plan should explicitly recognize that it may remain in effect without full participation by including a severability clause. In sum, conservation plans that support jointly held permits should include provisions that ensure that the necessary conservation commitments and funding commitments can be met if one of the co-permittees ceases to participate in the plan.

129 Id. at VI-46 – VI-47. The HCP also identified non-participation by a land use agency as a changed circumstance under the “No Surprises” rule and set forth a response to this changed circumstance. Id. at VI-43. See generally 63 Fed. Reg. 8859 (Feb. 23, 1998). 130 Nat’l Wildlife Fed’n v. Norton, No. CIV-S-04-0579-DFL JF, 2005 WL 2175874, at *2 (E.D. Cal. Sept. 7, 2005). 131 See id. at *6. 132 Id. at *8. 133 See generally 16 U.S.C. §§ 1536(a)(2), 1539(a)(2)(B).

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2. Full Compliance with a Jointly Held Permit

A variation of the issue of less-than-full participation in a conservation plan is the effect of non-compliance of a co-permittee on a jointly held permit. The effectiveness of jointly held permits may depend on all permittees’ compliance with its terms. The Services can suspend or revoke a permit for noncompliance with the terms of it or the underlying conservation plan, and the Services’ regulations do not differentiate between co-permittees’ compliance for enforcement.134 The Services’ regulations raise the question of whether they must suspend or revoke an entire permit (i.e., with respect to all co-permittees) based on non-compliance by one co-permittee or whether they may suspend or revoke the permit only with respect to the offending permittee.

To remedy this issue, the Services may include language in jointly held permits or their implementing agreements expressly stating that a permit is severable with respect to co-permittees and, therefore, non-compliance by one co-permittee will not result in suspension or revocation of the entire permit:

The violation of the Permit by any Permittee with respect to any one or more particular parcels of land or portions thereof owned or controlled or within the jurisdiction of any such Permittee shall not adversely affect or be attributed to, nor shall it result in a loss or diminution of any right, privilege, or benefit hereunder, of any other Permittee.135

As the Natomas Basin HCP demonstrated, however, such a statement must be supported by the Services’ determination that the necessary conservation commitments and funding commitments can be met without participation of all permittees. If the Services are not confident that these commitments can be met without participation of all co-permittees, however, the Services may not be willing to include clear language in the permit or implementing agreement allowing the permit to be severed. Rather, the Services may reserve the right to suspend or revoke the entire permit:

The Service recognizes that the measures in . . . the HCP will be implemented by different Permittees, each having differing legal authorities and jurisdictions. Therefore, without limiting in any way its enforcement discretion in any decision regarding whether to suspend or revoke the Permit with respect to Permittees otherwise in compliance, the Service will consider whether any non-compliance by one or less than all of the Permittees materially affects compliance with relevant Permit issuance criteria.136

134 15 C.F.R. § 904.320; 50 C.F.R. §§ 13.27(a), 13.28(a)(2), 222.306. 135 HCP Handbook, app. 4, “Template” Implementing Agreement at 6. See also, e.g., Clark County Multiple Species Habitat Conservation Plan and Environmental Impact Statement for Issuance of a Permit to Allow Incidental Take of 79 Species in Clark County, Nevada, app. J, Implementation Agreement Clark County Multiple Species Habitat Conservation Plan, supra note 83, at § 16.06. 136 Implementing Agreement by and among The Edwards Aquifer Authority, The City of New Braunfels, The City of San Marcos, The City of San Antonio acting by and through its San Antonio Water System Board of Trustees, Texas State University – San Marcos, and the Texas Parks and Wildlife Department and the United States Fish and Wildlife Service to implement the Habitat Conservation Plan for the Edwards Aquifer Recovery Implementation

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For these reasons, applicants for joint permits should request that the Services consider the effects of non-compliance by one co-permittee on the permit as a whole. To the extent the Services believe the permit can survive partial suspension or revocation, the Services should document the basis for this determination in the underlying conservation plan or agreement. Furthermore, applicants should request that the FWS or NMFS include language in the permit or implementing agreement allowing it only to partially suspend or revoke a permit in response to non-compliance by one co-permittee in a jointly held permit.

3. Compliance Obligations of the Holder of a Programmatic Permit

For programmatic conservation plans with a master permit and Certificates of Inclusion or Participation, state or local governments often hold the programmatic permit; however, the permit can also be held a third-party entity such as a non-profit organization. Not only do participants in such a permit have obligations to comply with the terms of the associated conservation plan, the permit holder also has obligations to comply with the conservation plan. Usually, these obligations relate to monitoring and reporting requirements imposed by the conservation plan; however, conservation plan may also require the permittee to collect funds from participants and apply such funds to mitigate the impacts of the authorized land uses.

The fact that the master permittee has obligations under the permit creates an issue if the permittee fails to meet these obligations. The Services’ regulations allow them to suspend or revoke a permit if the permittee fails to comply with it or the associated conservation plan.137 For resource developers participating in a programmatic permit, however, the prospect that the permit could be suspended or revoked for reasons outside of the participant’s control introduces significant uncertainty.

As with other issues, the solution likely requires incorporating language into the conservation plan to address this situation. For example, the conservation plan could provide that before the FWS suspends or revokes the permit because of the master permittee’s noncompliance, the FWS will notify the participants in the programmatic permit of the noncompliance and afford them a reasonable time to cure the violation. Additionally or alternatively, the conservation plan could allow the participants to identify another party to whom the permit could be transferred.138 At a minimum, permittees and participants should recognize the potential risk that a programmatic permit holder could find itself out of compliance with the terms of the permit or conservation plan and should draft provisions to mitigate the potential risk that the Services would suspend or revoke the permit.

Program § 12.2(a) (unsigned), available at http://eahcp.org/documents/2012-16-10FinalImplementingAgreement_all_signatures_except_USFWS.pdf (emphasis in original). 137 50 C.F.R. §§ 13.27(a), 13.28(a)(2), 222.306(e). 138 The Services’ regulations afford it the flexibility to write such a provision into conservation plans. The FWS regulations states that “[t]he privileges of exercising some or all of the permit authority may be suspended at any time if the permittee is not in compliance with the conditions of the permit . . . .” 50 C.F.R. § 13.27(a) (emphasis added). Similarly, the NMFS regulations provide that “[a]ny violation of . . . a term or condition of the permit may subject the permittee to . . . suspension, revocation, or amendment of the permit.” Id. § 222.306(e) (emphasis added).

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B. Compliance Obligations of Individual Permittees and Participants

Large-scale permits impose significant compliance obligations on individual permittees and individual permit participants. In some cases, a permittee or participant may receive incidental take authorization for activities covering hundreds or thousands of acres.139 Given the substantial size and number of facilities, a permittee or participant may discover that, despite best efforts, it has failed to comply with a conservation measure or other requirement of a permit.

The permittee’s failure to comply with the terms of a permit can have significant consequences. The FWS’s regulations allow it to suspend “[t]he privileges of exercising some or all of the permit authority . . . if the permittee is not in compliance with the conditions of the permit.”140 The FWS’s regulations also allow it to revoke a permit when “[t]he permittee fails within 60 days to correct deficiencies that were the cause of a permit suspension.”141 Similarly, the NMFS regulations provide that “[a]ny violation . . . of a term or condition of the permit may subject the permittee to . . . suspension, revocation, or amendment of the permit . . . .”142 Therefore, a permittee’s failure to implement a conservation measure on a single parcel among hundreds or thousands of acres covered by the permit could, conceivably, result in suspension or termination of the entire permit. For permits authorizing take of species with large ranges, termination of an entire permit could leave the permittee without incidental take authorization throughout large areas, perhaps across multiple states.

Permittees can include provisions in permits or conservation agreements that attempt to limit the effect of non-compliance. For example, the permit or conservation agreement can include a statement that an incident of non-compliance on a single facility or parcel of enrolled lands may only result in suspension or revocation of the permit with respect to this facility or parcel of land.143 Similarly, the permit or conservation agreement can recognize that suspension or revocation of an entire permit based on an incident of non-compliance on a single facility or parcel of land is a severe action that should only be utilized after other efforts to facilitate compliance have failed.144

The risk to this approach, however, is that the Services’ permit regulations are incorporated into any permit.145 Arguably, the provisions proposed above are consistent with, and simply interpret, the Services’ permit regulations. Nonetheless, there is a possibility that the Services would aggressively interpret their regulations to allow suspension or revocation of an entire permit or Certificate of Inclusion or Participation based on one incident of non-compliance, despite any language to the contrary in the permit or conservation plan. Accordingly, where a permit or Certificate of Inclusion or Participation covers multiple facilities over large areas of land, permittees and participants should take extreme caution to adhere to the 139 For permits authorizing incidental take resulting from oil and gas development, the permits may cover hundreds or thousands of individual well locations or facilities, which may be managed within different business units in a given company. 140 50 C.F.R. § 13.27(a) (emphasis added); accord id. § 222.306(e). 141 Id. § 13.28(a)(2). 142 Id. § 222.306(e). 143 See, e.g., Range-Wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus), supra note 62, § XXX. 144 See id. 145 See HCP Handbook, app. 15, FWS Federal Fish and Wildlife Permit § 11.

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terms of conservation plans to avoid the possibility of suspension or revocation of an entire permit or Certificate of Inclusion or Participation.

VI. Area Covered by Habitat Conservation Plans

Once a land user has settled on the permit structure that best suits its needs, it must then determine the appropriate area covered by the conservation plan. A related question is whether the plan should include federal lands as well.

A. What Area Should a Multi-Species Conservation Plan Cover?

A critical early decision in the conservation planning process is determining the geographic scope of the conservation plan. The conservation plan boundary must include all activities and projects that will receive incidental take authorization for the covered species. Mitigation and monitoring activities may result in incidental take,146 so all mitigation sites must also be included in the conservation plan boundary. If a proposed HCP is focused on a single or few well-defined projects and mitigation sites, or if a CCAA or SHA is focused on a single property, defining the conservation plan area can be a simple exercise. Complex, large-scale programmatic conservation plans, however, must determine their plan area boundaries based on a number of important factors.

In a large-scale, programmatic conservation plan such as a multi-species HCP, the geographic scope of the plan should be sufficiently large to encompass all proposed covered activities and all of the expected mitigation. As the plan area expands, however, complexity increases because the scope of mapping and modeling needs expand. Plan areas that span several states face the additional challenge of incorporating multiple field offices of FWS or NMFS and potentially multiple Regional Offices, all of which require coordination to complete the conservation plan successfully.147 Larger HCP plan areas may increase the number of species that will likely need to be covered. For plans with public agency applicants, larger plans may increase the number of jurisdictions, landowners, and other stakeholders that will need to be involved with conservation plan development. Large plan areas also tend to increase costs, complexity, and time required to prepare the NEPA document for the conservation plan.148

There can be substantial benefits to larger conservation plan areas, despite the added complexity. A larger plan area may increase planning and implementation efficiency by

146 HCP Handbook at 7-2. For example, monitoring some species may require sampling or handling, which could be considered “harassment” and therefore take of that species. Mitigation that involves restoration may temporarily remove or disturb suitable habitat for a covered species, potentially resulting in “harm” to the covered species. 147 FWS Regional Offices typically delegate responsibility for day-to-day coordination with the permit applicants and their consultants to field office staff. However, Regional Office staff will get involved if field office staff are inexperienced with conservation plans or there are particularly complex or controversial issues to solve. Incidental take and enhancement of survival permits are typically signed by the Regional Office Supervisor. Applicants are well advised to ensure that FWS field office staff periodically brief Regional Office staff on the status of their conservation plan. Depending on the expertise of field office staff, Regional Office staff may be heavily involved in the preparation of the NEPA document for the conservation plan. 148 See supra Part IV.B for more discussion on NEPA compliance for HCPs.

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increasing the funding base149 and reducing the per-acre cost of land management or monitoring. By expanding a plan area to include a larger portion of a species’ range, the conservation plan can increase the flexibility of where mitigation occurs as compared to a plan that covers a smaller portion of that species’ range.150 The advantages and disadvantages of different planning area boundaries should be carefully considered before beginning a planning effort. It may be expensive to change the planning area boundary significantly once the plan is underway.

When defining the plan area boundary, applicants should consider political boundaries, land ownership boundaries, physical boundaries, and ecological boundaries. Political boundaries such as municipal growth lines, county lines, or state lines may be relevant depending on the applicant and the covered activities. If covered activities do not occur on certain lands (e.g., federal or state land), the plan area boundary can exclude those land ownership types. Physical boundaries such as major highways, rivers, or watersheds may be useful to delimit conservation plan areas, particularly when the covered species’ range is affected by those boundaries. The use of watershed boundaries to define the planning area can provide an ecologically meaningful boundary for plans that include aquatic species such as fish, mussels, crayfish, shrimp, or other aquatic invertebrates. Other ecological boundaries that should be considered include the ranges of covered species, major natural community or ecosystem boundaries, and the potential locations of mitigation sites.

HCPs that cover linear projects such as electric transmission lines, pipelines, or roads are often forced to define their plan area boundary based on the location of known or expected facilities with an appropriate buffer around them to account for access needs and direct and indirect effects on the covered species.151

The permit area is the area in which incidental take of covered species is authorized. The planning area need not necessarily be the same as the permit area. Conservation plan planning areas may cover large regions, with only the portion of the planning area where incidental take will occur defined as the permit area. The distinction between a planning area and permit area

149 For plans led by private industry, a larger plan area may attract a greater number of industry applicants, reducing per-applicant plan preparation costs and potentially also reducing mitigation costs on a per unit basis. For programmatic HCPs led by public agencies, a larger plan area may increase the number of covered activities over which fees can be charged to support the HCP conservation strategy (e.g., private land development or resource extraction under the jurisdiction of the public agency); a larger fee base may reduce the per acre or per unit fee charged to all plan participants. 150 An extreme example of this approach is the Great Plains Wind Energy HCP being prepared across nine states from North Dakota to Texas. The HCP plan area boundary was designed to correspond with the entire migratory pathway of the whooping crane in the United States between its wintering grounds in Canada and its breeding sites in the Aransas National Wildlife Refuge on the Gulf Coast of Texas. See 76 Fed. Reg. 41,510, 41,512 (July 14, 2011). Although not an HCP, another example of this approach is the Rangewide Conservation Plan for the lesser prairie-chicken, which is being used in ways similar to a HCP and covers the entire range of the lesser prairie-chicken plus ten miles around that range. See Lesser Prairie-Chicken Range-wide Conservation Plan at 26 (William E. Van Pelt ed., 2013). 151 Examples of large-scale multi-species HCPs focused on linear infrastructure projects include the NiSource HCP that covers over 15,000 miles of pipelines across 14 eastern states, 78 Fed. Reg. 68,465 (Nov. 14, 2013), the Pacific Gas & Electric Company San Joaquin Valley Operations and Maintenance HCP in central California, 56 Fed. Reg. 13,818 (Mar. 23, 2007), and the Oncor Electric Delivery Company HCP in Texas, 76 Fed. Reg. 59,732 (Sept. 27, 2011); Final Habitat Conservation Plan for Maintenance and Construction Activities for the Oncor Electric Delivery Company LLC (2011), available at www.fws.gov/southwest/es/Documents/R2ES/Final_Oncor_HCP_12-21-11.pdf.

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can be helpful in the planning process of complex conservation plans, such as multi-species HCPs. A plan may begin with a defined planning area but no defined permit area. As the covered activities, covered species, and conservation strategy are developed, the permit area can be defined as a subset of the planning area. This approach allows refinement of the permit area up until the final conservation plan without causing expensive and time-consuming revisions to the planning area boundary.

The plan areas of conservation plans across the country vary widely. Almost half of all HCPs approved are less than 10 acres in size, while only about 15 percent of HCPs approved by the FWS exceed 1,000 acres.152 Large-scale multi-species HCPs are becoming more common as more species are listed and the HCP tool is becoming more widely known and understood by applicants and FWS staff. The largest HCP approved to date covered a wide range of development activities in the entire state of Georgia for impacts to the red-cockaded woodpecker.153 The largest approved multi-species HCP is the Clark County HCP in southern Nevada.154 The largest multi-species HCPs in preparation are the Great Plains Wind Energy HCP (9 states) and the Midwest Wind Energy HCP in eight states.155

In contrast, the FWS reports that CCAAs and SHAs are generally larger than HCPs. Only seven percent of CCAAs and four percent of SHAs approved by the FWS are less than 10 acres in size.156 Nearly half of SHAs and 69 percent of CCAAs approved by the FWS exceed 1,000 acres.157 The largest CCAA approved by the FWS to date covers 40 million acres.158 Ten SHAs are larger than 10 million acres.159

B. Including Federal Land in Complex HCPs

Section 7(a)(2) of the ESA states that each federal agency shall, in consultation with the Secretary of the Interior or Commerce, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat of a listed species.160 If a federal action has the potential for take, the federal action agency must obtain this take authorization through

152 FWS ECOS Database (accessed Oct. 13, 2015). Notably, the FWS ECOS Database lacked size statistics for a handful of approved CCAAs. 153 See 64 Fed. Reg. 40,616 (July 27, 1999). The HCP covers 10.9 million acres. FWS ECOS Database. 154 See 65 Fed. Reg. 57,366 (Sept. 22, 2000); Final Clark County Multiple Species Habitat Conservation Plan and Environmental Impact Statement for Issuance of a Permit to Allow Incidental Take of 79 Species in Clark County, Nevada (2000), available at http://www.clarkcountynv.gov/depts/dcp/Pages/CurrentHCP.aspx. 155 See 80 Fed. Reg. 33,537 (June 12, 2015). The Midwest Wind Energy HCP covers wind energy development in almost all of FWS Region 3 (Minnesota, Michigan, Wisconsin, Missouri, Illinois, Indiana, Ohio, and Iowa). See id. 156 FWS ECOS Database (accessed Oct. 18, 2015). Notably, the FWS ECOS Database does not report size for all CCAAs and SHAs; these figures compare CCAAs and SHAs with reported sizes. Presumably, SHAs necessarily must be larger than HCPs because landowners need a larger enough area to raise populations or habitat above baseline. 157 Id. 158 See Range-Wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus), supra note 62, at 6. The 40 million acres reflects the occupied range of the lesser prairie-chicken plus a 10-mile buffer. 159 FWS ECOS Database (accessed Oct. 19, 2015). 160 16 U.S.C. § 1536(a)(2).

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section 7 of the ESA using the federal agency consultation process.161 Take authorization is provided to the federal action agency through a biological opinion and incidental take statement issued by FWS or NMFS.162 Federal “actions” may include projects proposed on federal land, a federal permit, or federal funding.163 This consultation requirement is often misinterpreted to mean that federal actions or federal land can never be included in a section 10 HCP, which is designed for non-federal actions. The opposite is true: Federal actions and federal land can be included in a section 10 HCP as long as there are also non-federal actions covered by the HCP. Therefore, applicants preparing programmatic or GCPs with diverse sets of covered activities often have the option to cover projects or activities that are expected to have a federal nexus, such as a Clean Water Act section 404 permit from the U.S. Army Corps of Engineers to fill jurisdictional wetlands or activities on federally owned lands. There can be significant advantages to covering such activities, as described below.

When activities with a federal nexus are covered by the HCP, the section 7 consultation requirement still applies—the federal action agency must consult with FWS or NMFS to determine the effects of the federal action on listed species. However, for projects or activities covered by an approved HCP, the documentation required to fulfill the consultation requirement can be very brief (typically two to four pages long) because many or all of the substantive requirements of the section 7 consultation have been met by the HCP and the intra-Service biological opinion on the HCP, including effects of the action and conservation measures. All that remains for FWS and NMFS to do in this abbreviated consultation documentation is to cite the HCP, the intra-Service biological opinion on the HCP, and potentially the applicable avoidance and minimization measures from the HCP. The biological opinion for the federal action covered by the HCP may rely on the HCP incidental take permit for take authorization. In other cases, the biological opinion may provide a separate incidental take statement to the federal action agency that is consistent with the take authorization provided by the HCP. To further streamline future section 7 consultations for activities covered by HCP, programmatic section 7 consultations can be developed with federal actions agencies likely to be responsible for many activities.164

This flexibility between sections 7 and 10 gives HCP applicants the ability to include federal lands in their programmatic or GCPs if it is desirable. Large projects may span many types of land ownerships (e.g., private, state, and federal), especially in western states where federal land occurs in checkerboard patterns across the landscape. In these cases, it can be beneficial to include federal lands in an HCP to ensure that avoidance, minimization, and mitigation measures are applied consistently across the entire project. Including federal land may also expand the range of available mitigation sites, increasing flexibility and potentially 161 Id. § 1536(b)(4); see also FWS & NMFS, Consultation Handbook: Procedures for Conducting Consultation & Conference Activities Under Section 7 of the Endangered Species Act at 2-12 (1998) (“Consultation Handbook”). 162 Id. § 1536(o)(2). 163 See id. § 1536(a)(2); 50 C.F.R. § 502.02. 164 For example, large land management agencies such as the Bureau of Land Management or U.S. Forest Service could be included in the intra-Service consultation for the HCP to streamline future consultations by these agencies. In other cases, separate programmatic biological opinions could be developed after HCP approval for the covered activities on federal land covered by the HCP. In California, programmatic consultations are occurring with the U.S. Army Corps of Engineers to support Regional General Permits under the Clean Water Action associated with approved programmatic HCPs. These programmatic biological opinions, when combined with the HCP, provide all of the ESA authorization needed for activities covered by the HCP to allow two-page consultation documents.

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reducing implementation costs. Land ownership boundaries rarely follow ecological boundaries, so expanding an HCP to include federal lands relevant to the covered species should also improve conservation outcomes for the species.

There are many examples of programmatic HCPs that have included substantial amounts of federal land out of necessity. The Clark County, NV HCP focuses on urban development in Las Vegas and adjacent cities. Because lands outside the expanding cities were almost entirely federal, the HCP plan area included over 5 million acres of federal land (89% of the HCP plan area).165 Mitigation measures were focused almost entirely on federal lands in the form of retirement of livestock grazing leases, fencing to reduce vehicle collisions with desert tortoise, and a variety of other management and research actions on federal lands.166

It is important to observe that only HCPs, and not CCAAs and SHAs, can include federal land. The Services’ CCAA and SHA policies expressly limit the availability of these agreements to “non-federal property owners.”167 To complement the conservation actions that occur on non-federal lands through CCAAs, the FWS has encouraged land users developing programmatic CCAAs to also develop Candidate Conservation Agreements (CCAs) that cover federal lands.168 Ideally, the CCAA and CCA would function as one plan and land users would “adopt the same practices on the Federal lands as they adopt on the non-Federal lands (as specified under the CCAA component of the plan).”169 The FWS would issue a conference opinion that analyzes the management actions in the CCA.170 Then, if the species is listed, the FWS may adopt the conference opinion and associated incidental take statement as a biological opinion “if no significant new information is developed or no significant changes were/are made to the CCA that would alter the content or determinations of the Conference Opinion.”171 Notably, land users covered by a CCA do not receive the “no surprises” assurances that accompany a section 10 permit.172 Nonetheless, CCAs can streamline section 7 consultation for activities on federal lands.

In summary, the benefits of including federal lands in programmatic HCPs or GCPs include greatly streamlining future section 7 consultations, increasing mitigation opportunities,

165 Final Clark County Multiple Species Habitat Conservation Plan & Environmental Impact Statement for Issuance of a Permit to Allow Incidental Take of 79 Species in Clark County, Nevada, supra note 154, at 2-35 – 2-36. 166 Id. at 2-203 – 2-256. 167 64 Fed. Reg. 32,726, 32,734 (June 17, 1999); 64 Fed. Reg. 32,717, 32,722 (June 17, 1999). 168 FWS, Using Existing Tools to Expand Cooperative Conservation for Candidate Species Across Federal and Non-Federal Lands at 2. The FWS has developed several CCA/CCAAs that cover both federal and non-federal lands. See, e.g., Greater Sage-Grouse Candidate Conservation Agreement for Range Management on Bureau of Land Management Lands in Wyoming (2014), available at http://www.blm.gov/style/medialib/blm/wy/programs/wildlife/sagegrouse.Par.34890.File.dat/FINAL-SG-CCA-Appl.pdf; Greater Sage-Grouse Umbrella CCAA for Wyoming Ranch Management, supra note 40; Candidate Conservation Agreement for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus) and Sand Dune Lizard (Sceloporus arenicolus) in New Mexico, supra note 62. 169 FWS, Using Existing Tools to Expand Cooperative Conservation for Candidate Species Across Federal and Non-Federal Lands at 4. 170 See 50 C.F.R. § 402.10. 171 Compare FWS, Using Existing Tools to Expand Cooperative Conservation for Candidate Species Across Federal and Non-Federal Lands at 5 with 63 Fed. Reg. 8859 (Feb. 23, 1998). 172 See id.

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and creating a consistent set of avoidance, minimization, and mitigation requirements for projects that span federal and non-federal land.

VII. Which Species Should be Included in a Multi-Species HCP?

Another important early step in the planning process is to determine which species a conservation plan will cover. “Covered species” are those species, subspecies, or species distinct population segments173 for which the applicant requests incidental take authorization under the ESA. Generally, the question of whether to cover multiple species in a conservation plan most often arises with respect to HCPs. More than three-quarters of CCAAs, and 64 percent of SHAs, approved by the FWS cover a single species.174

In HCPs, the covered species list may include both listed and non-listed species.175 The “no surprises” assurances allow for non-listed species to be covered by the incidental take permit.176 To receive these assurances, all non-listed covered species must be treated in the HCP as though they were listed.177 This approach enables the Services to make their ESA findings for all of the covered species whether they are listed or not. Both listed and non-listed species are typically named on the section 10 permit. Once a non-listed species covered by an HCP becomes listed, it is then automatically covered by the permit.178

Applicants who cover small or simple projects on well-defined sites often cover just one or a few species based on the results of site surveys for species occupancy and habitat quality. These surveys often provide the data necessary to clearly weigh the risks and benefits of which species to cover in an HCP. In contrast, applicants who prepare large-scale programmatic HCPs often struggle with decisions of which species to cover. This struggle is often due to the uncertainty in the location and timing of the activities addressed by the plan and the lack of survey data for these uncertain project sites. Decisions on which species to cover can also be hampered by conflicting input from regulators, stakeholders, and multiple applicants. Many of these challenges can be overcome by the use of a clear and systematic process to evaluate which species to cover in an HCP, as outlined below.

173 See 61 Fed. Reg. 4722, 4722–25 (Feb. 7, 1996). For example, distinct runs of anadromous fish are commonly listed by NMFS as distinct population segments. 174 FWS ECOS Database (accessed Oct. 18, 2015). The CCAA with the most species covers 12 species, while the SHAs with the most species cover six species. Id. 175 HCP Handbook at 3-7. 176 Id. at 3-7. 177 Id. at 4-4. A common question from applicants is whether listed and non-listed species must be treated “equally” in an HCP if non-listed species must be treated as if they were listed. Mitigation must be provided for every covered species to “minimize and mitigate the impact of the taking to the maximum extent practicable” 50 C.F.R. § 17.22 (b)(2)(i)(B). Typically, non-listed species are not listed yet because they are more common and under less threat than listed species. In this scenario, if there were equal impacts to two species, one listed and one non-listed, the impact of the taking would be greater to the listed species than to the non-listed species. Therefore, to meet the key ESA permit issuance criteria, the mitigation requirement would also be greater for the listed species than for the non-listed species. Species are rarely equal, so mitigation obligations will vary depending on circumstances unique to each species. 178 HCP Handbook at 3-38, 4-4. Some FWS offices prefer not to list the non-listed covered species on the section 10 permit. In these instances, it is a simple administrative process to add that species to the permit once it becomes listed.

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Covering many species in an HCP can increase the benefits of the plan by expanding the regulatory assurances provided by the permit. However, a long covered species list also increases the complexity of the plan, the time and cost required to prepare it, and the cost to implement the plan. All covered species must have mitigation and monitoring defined and funded.179 Species with unique conservation requirements (i.e., requirements that do not overlap with other covered species) may add considerably to plan implementation costs. In contrast, a plan with too few covered species may lack the regulatory assurances necessary to implement the applicant’s projects or activities without having to seek additional ESA compliance later, risking project delays. Applicants must strike a balance between an HCP that covers just enough species to implement the target projects or activities and a list that is so long that the plan is unaffordable or so complex that it takes many years to complete. The trend in programmatic HCPs in recent years has been to cover fewer, not more species.180

A recommended approach to selecting the covered species is to develop and rigorously apply a set of criteria such as the following. To be covered, a species would meet all four criteria:

• Range: The species occurs or has the potential to occur within the HCP planning area during the expected term of the permit.181

• Status: The species is federally listed as threatened or endangered, or is likely to become listed during the term of the permit based on available data182 and best professional judgement of species experts.

• Impact: The species or its habitat is likely to be adversely affected by the activities covered by the HCP and result in take.183

179 See HCP Handbook at 4-1 – 4-4. 180 As of August 2015, over 65 percent of approved HCPs for which data are available cover one species because they are designed for a single project in a small, defined area. See FWS ECOS Database. Larger, programmatic HCPs began in the first decade of the HCP program by covering a small number of species. For example, the San Bruno Mountain HCP approved in 1983 originally covered three species but was amended twice to add two more species. See 69 Fed. Reg. 43,862 (July 22, 2004); 64 Fed. Reg. 7662 (Feb. 16, 1999). The second HCP in the Coachella Valley of southern California covered one species but was replaced later by a multi-species HCP in the same area. 71 Fed. Reg. 63,922 (Nov. 13, 2007); 51 Fed. Reg. 15,702 (April 25, 1986). In the early 2000s, programmatic HCPs began to cover many more species. For example, the Clark County HCP in southern Nevada, approved in 2000, covered 78 species. See 65 Fed. Reg. 57,366 (Sept. 22, 2000); Final Clark County Multiple Species Habitat Conservation Plan and Environmental Impact Statement for Issuance of a Permit to Allow Incidental Take of 79 Species in Clark County, Nevada (2000). The Western Riverside County HCP, approved in 2004, covered 146 species. 65 Fed. Reg. 45,391 (July 21, 2000); Western Riverside County Multiple Species Habitat Conservation Plan, supra note 94. This trend has reversed more recently; large programmatic HCPs today typically cover up to approximately 25 or 30 species. 181 In some instances, species with an expanding range may not be present at the time the HCP is approved, but could occur in the HCP plan area in the future. 182 Relevant data includes state or other listing status, population trends, threats, and previous federal listing activity (e.g., petitions, petition decisions, candidate status). 183 This criterion should be applied to all species considered, whether the species is listed or not. Applicants should consider including listed plants as covered species even though the prohibitions in section 9 of the ESA do not apply to listed plants except on federal land. 16 U.S.C. § 1538(a)(2); 50 C.F.R. § 17.61(c)(1).. The issuance of the incidental take permit is a federal action subject to the federal consultation requirements under section 7 of the ESA. See HCP Handbook at 6-12. As part of that consultation with itself, FWS must find that the issuance of the incidental take permit will not jeopardize the continued existence of all listed species, including plants. By covering listed plants in the HCP, applicants can often easily address the section 7 requirement that comes late in the HCP planning process.

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• Data: Sufficient information is available on the species to conduct an effects analysis, assess the impact of the taking, and develop adequate mitigation measures.184

In the case of large-scale programmatic HCPs with multiple applicants and stakeholder involvement, participants often misunderstand the purpose of the covered species list. The resulting confusion can result in what can be called a “list dilemma.” Early in HCP development, environmental NGOs typically advocate that the HCP include many species on the covered species list because they view the purpose of the HCP as wholly beneficial to species In contrast, applicants often want to keep the list short because they see each additional species adding to the cost and time required to develop and implement a plan.185 These views often switch later in the planning process as the discussion of covered species turns to permitting and the authorization of incidental take. NGOs begin to fear having too many species authorized for take, especially where ecological information is limited. In contrast, applicants begin to see the benefit of having a longer list of covered species that provides greater regulatory certainty to their projects. The list dilemma can result in wasted time modifying the covered species list many times during the plan development process. One way to avoid the list dilemma is to: 1) make the purpose of the covered species list clear at the beginning of the planning process, 2) develop specific criteria for inclusion on the covered species list, and 3) strictly adhere to those criteria if new species are proposed for coverage by any interest group.186 Even with this approach, applicants in multi-species HCPs should expect their species list to change during the HCP planning process in response to new information.187

184 This data criterion is often the most difficult to apply. If too little is known about a species’ ecology or conservation needs, then it may be challenging to develop mitigation measures that will meet the incidental take permit issuance criteria. Alternatively, costs to cover the species may be unreasonably high because FWS or NMFS apply conservative approaches to determining necessary minimization or mitigation measures. Some applicants choose to collect additional field data on little-known species in order to determine whether coverage is warranted. 185 See, e.g., Letter from Brian Woodard, Okla. Indep. Petroleum Ass’n to U.S. Fish & Wildlife Serv. Okla. Ecological Servs. Field Office (Mar. 4, 2013); 78 Fed. Reg. 7445, 7446 (Feb. 1, 2013). 186 In some cases, a focused covered species list in a programmatic HCP may not satisfy local pressure or conservation policy goals to protect a wide array of special-status species. Applicants for programmatic HCPs may choose several other approaches to address this need for a broader conservation purpose to the HCP. For example, plans could include special-status species in the HCP and provide voluntary conservation measures for those species, but not include them in the incidental take permit application. This approach was taken in the San Joaquin County HCP in California, approved in 2001, which was granted take authorization for 44 species but “covered” approximately 100 species. See San Joaquin County Multi-Species Habitat Conservation & Open Space Plan, supra note 39, at 2-16 – 2-19. The Clark County HCP in Nevada covered 79 species and included another 154 species they termed “evaluation” and “watch-list” species. Final Clark County Multiple Species Habitat Conservation Plan and Environmental Impact Statement for Issuance of a Permit to Allow Incidental Take of 79 Species in Clark County, Nevada at 2-7 (2000). Other plans have done post-hoc evaluations of the benefits of the programmatic HCP to non-covered special-status. See, e.g., East Contra Costa County Habitat Conservation Plan & Natural Community Conservation Plan, supra note 94. This approach enables project proponents who pay their HCP fees to use that for compliance with other environmental requirements such as the California Environmental Quality Act. Yet another approach is to prepare a separate conservation strategy for non-covered special-status species that builds on the required mitigation in the programmatic HCP. See, e.g., Second Administrative Draft, Yolo Habitat Conservation Plan & Natural Community Conservation Plan (Mar. 31, 2015), available at http://www.yolohabitatconservancy.org/#!documents/csyl. 187 For example, new scientific evidence on species taxonomy may cause changes. The Preble’s meadow jumping mouse along the Front Range of Colorado and Wyoming is a classic example of taxonomic debates on the definition

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VIII. Amount of Incidental Take Authorized by a Complex Permit

The issue of which species a conservation plan should cover invites considerations of the amount of incidental take the associated permit will authorize. Because of the multiple permittees or participants in complex permits, allocation of authorized incidental take among permittees or participants also requires consideration when designing the conservation plan.

A. Amount of Incidental Take Authorized

HCPs must identify both the level of incidental take expected to result from project activities and the level of incidental take the permit will actually authorize.188 Similarly, CCAAs must quantify the “level and type of take anticipated for each covered species once the species is listed.”189 The Services generally will identify the amount of authorized incidental take on incidental take permits,190 and they may also include such incidental take limits on enhancement of survival permits.191 Additionally, the biological opinion (for HCPs and SHAs) or conference opinion (for CCAAs) that accompanies permit issuance may include an incidental take statement that outlines the amount of take anticipated by the action.192 Even if the permit does not include a take limit, the incidental take statement can essentially act as a limit because the Services must reinitiate section 7 consultation or conferencing for the HCP or CCAA if the impacts of the proposed action in the incidental take statement are exceeded.193

Ideally, the level of expected incidental take will be expressed as the number of individuals that will be taken.194 The Services, however, may express incidental take using a surrogate or proxy when the specific number of individuals that will be taken is unknown or indeterminable.195 Generally, habitat or habitat units (such as acre-feet of water) may be used as a proxy for anticipating incidental take.196 “When habitat is used for determining the quantity

of the listed entity causing uncertainty for programmatic HCPs. New species occurrence data or new covered activities may also trigger re-application of the covered species criteria. 188 16 U.S.C. § 1539(a)(2)(A); 50 C.F.R. §§ 17.22(b)(1)(iii), 17.32(b)(1)(iii)(C); HCP Handbook at 3-14. 189 CCAA Handbook at 15. Because SHAs only allow take of the covered species to a baseline amount, SHAs often do not articulate the amount of incidental take expected. See, e.g., Programmatic SHA for Utah Prairie Dogs at 3 (2009). 190 65 Fed. Reg. 35,242, 35,245 (June 1, 2000); but see WildEarth Guardians v. U.S. Fish & Wildlife Serv., 622 F. Supp. 2d 1155, 1165 (D. Utah 2009) (finding that FWS is not required to include a take amount in incidental take permits). 191 See, e.g., Federal Fish & Wildlife Permit No. TE27289E, § M (Feb. 28, 2014). See generally 50 C.F.R. §§ 17.22(c)(3)(iii), 17.22(d)(3)(iii), 17.32(c)(3)(iii), 17.32(d)(3)(iii) (allowing FWS to impose conditions on incidental take permits and enhancement of survival permits). 192 16 U.S.C. § 1536(b)(4)(C)(i); 50 C.F.R. §§ 402.10(d), 402.14(i)(1)(i); Consultation Handbook at 4-50, 6-6. 193 50 C.F.R. § 402.14(i)(4). 194 HCP Handbook at 3-14; CCAA Handbook at 15. 195 HCP Handbook at 3-14; CCAA Handbook at 15; accord 50 C.F.R. § 402.14(i)(1)(i) (allowing use of a surrogate, such as “similarly affected species or habitat or ecological conditions” to express the amount or extent of anticipated take in a biological opinion). The use of surrogates to estimate incidental take in biological opinions as part of section 7 consultation has been the subject of considerable litigation. See 78 Fed. Reg. 54,437, 54,437–40 (Sept. 4, 2013) (providing overview of relevant case law). Generally, courts have upheld the use of surrogates to estimate take in biological opinions when the Services demonstrate it is impractical to express take in terms of the number of individuals that can be taken and when the Services demonstrate a connection between the surrogate and the listed species. See, e.g., Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1250 (9th Cir. 2001). 196 HCP Handbook at 3-14; CCAA Handbook at 15.

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and type of take, the Services may want to quantify take by habitat quality, such as by nesting, foraging, or breeding habitat, or as suitable or unsuitable habitat, or as occupied, unoccupied, or transitional/seasonal habitat.”197 Often, in programmatic conservation plans that cover a large area, the Services (or the applicant) cannot predict the level of incidental take that will occur because the Services may lack site-specific information about the area covered by the plan; in these situations, the Services may analyze a maximum level of incidental take that could be reasonably anticipated.198

B. Allocation of Authorized Incidental Take

Multiple permittees or participants in a complex conservation plan raises questions of how authorized incidental take will be allocated among them. When a conservation plan has one permittee, allocation of incidental take is simple: the permittee may engage in activities that result in up to the full amount of incidental take anticipated by the conservation plan and/or authorized in the associated permit. Similarly, when participants or permittees know the amount of incidental take their activities will require while the conservation plan is being developed, the conservation plan can allocate incidental take authorization to these participants or permittees. When a conservation plan has multiple permittees or participants who do not know the amount of incidental take their activities may require in the future, however, the amount of incidental take to which each permittee or participant is entitled is less clear.

Conservation plans adopt several approaches to allocated authorized incidental take to permittees or plan participants. The first approach is the most straightforward: the conservation plan can expressly allocate incidental take to plan participants. For example, if three counties developed an HCP and jointly held the incidental take permit, the HCP might expressly state that one county is entitled to disturb of 100 acres of habitat for a covered species, the second county was entitled to 50 acres of habitat, and the third county was entitled to 20 acres. The allocation could be based on a variety of factors, such as the amount of expected incidental take, the resources each permit or participant contributed to develop the conservation plan, the amount of habitat or number of individuals within the permittee’s or participant’s control or jurisdiction, or the permittee’s or participant’s planned activities.

Conservation plans can also adopt a “use or lose” approach to allocate authorized incidental take. If a permittee or participant fails to use the amount of incidental take provided in its permit or Certificate of Inclusion or Participation within a specified period of time, the unused amount of incidental take becomes available for use by other permittees or participants.199 Not only does this approach ensure that amounts of authorized incidental take are efficiently 197 CCAA Handbook at 15. 198 See, e.g., Oil & Gas Industry Conservation Plan Associated with Issuance of Endangered Species Act Section 10(a)(1)(B) Permits for the American Burying Beetle in Oklahoma, supra note 73, at 32 – 39; Range-Wide Oil and Gas Candidate Conservation Agreement with Assurances for the Lesser Prairie-Chicken (Tympanuchus pallidicinctus), supra note 62; Coachella Valley Multiple Species Habitat Conservation Plan and Natural Community Conservation Plan, supra note 94, at 4-183 – 4-189; Natomas Basin Habitat Conservation Plan VII-1 – VII-70, supra note 128. 199 See, e.g., Draft Implementing Agreement for the Desert Renewable Energy Conservation Plan by and among the California Department of Fish and Wildlife, the California Energy Commission, the California State Lands Commission, the Bureau of Land Management, and the United States Fish and Wildlife Service § 3.3.2.4, available at http://www.drecp.org/draftdrecp/documents/Draft_DRECP_NCCP_Implementation_Agreement.pdf.

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distributed among participants, it prevents participants or permittees from claiming more authorized incidental take than they actually require.

Finally, conservation plans can adopt tiered take limits to provide permittees and participants flexibility in allocating authorized incidental take. Under this approach, the conservation plan establishes multiple thresholds of authorized incidental take.200 When incidental take reaches a tier limit, the conservation plan allows additional incidental take but imposes additional conservation measures or mitigation requirements.201 Accordingly, tiered take limits provide flexibility for additional take authorization in the event the demand for incidental take authorization causes a take limit to be reached.

IX. Conclusion

Section 10 permits can be configured a variety of ways to suit the needs of the permittee and plan participants. An array of options are available to structure a permit, and a permit can cover as large an area and authorize incidental take of as many species as the permittee requires and as available data support. Potential permittees and plan participants should carefully evaluate the options available to them and understand the significance of decisions relating to structure, covered area, and covered species as they develop section 10 permits.

200 See, e.g., East Contra Costa County Habitat Conservation Plan & National Community Conservation Plan, supra note 94, at 2-17, 5-28 – 5-29; Final Habitat Conservation Plan for the Construction and Operation of the Lānai‘i Meteorological Towers, Lānai‘i, Hawai‘i 5-4 – 5-7 (2008), available at http://dlnr.hawaii.gov/wildlife/files/2013/10/Final-State-Lanai-MT-HCP-doc.10.08.08F2.pdf. 201 See id.

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Permit Types

Individual Permits

Programmatic Permits

Service

Permittee

Service

Permittee

Participant Participant Participant

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General Conservation Plans

Primary Permit Conservation Plans

Service

Permittee Permittee Permittee

Service

Permittee

Participant Permittee Permittee

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Jointly Held Permits

Example of a Combination of Permit Structures

Service

Permittee Permittee Permittee

Service

Permittee (City 1)

Permittee (County)

Permittee (City 2)

Participant (Via CI)

Participant (Via regulation)