Endangered Species Act (ESA) compliance can take more than one route, and DOTs often use the Section 7 process for ESA compliance. However, there are alternate pathways towards compliance, even for activities with a federal nexus. The habitat conservation plan (HCP) tool provided through Section 10 of the ESA is very flexible and can address a wide range of projects and activities. Since the first large-scale multi-species HCPs in the 1990s, HCPs have become a popular tool to streamline Endangered Species Act (ESA) compliance and provide effective mitigation programs. To date, there are over 850 approved HCPs in the country, with an increasing share being large-scale HCPs. However, confusion remains about whether and how to cover in HCPs projects and activities that may have a federal nexus and may be subject to a future ESA Section 7 consultation. Even for approved HCPs, some HCP implementing entities get conflicting direction about whether they can cover projects and activities that receive a subsequent federal permit, receive federal funding, or occur on federal land.
While HCPs typically take longer to permit than through the Section 7 process, they offer several important benefits that will save budget and schedule in the long run. The permit term is long (e.g., 50 years). This provides operational consistency and assurance for DOTs with the need to plan projects in advance and finish within limited work windows. An HCP does not require the DOT to consult on project-by-project basis. An HCP can include non-listed species that are likely to become listed in the future and multiple rounds of federal grant assistance is available to fund the writing, implementation, and mitigation of an HCP. Finally, an HCP allows the agency to contribute to the conservation of species on a landscape level rather than mitigating on a project-by-project basis, an advantage that is particularly beneficial when planning for long-term improvements to wildlife movement.
This talk will explore and answer questions about the intersection of Section 7 and 10 such as: Can federal agencies besides USFWS and NMFS participate in an HCP? Can an HCP cover activities subject to a later Section 7 consultation? How can the Biological Opinion for the HCP streamline future Section 7 consultations? Can a lead federal agency ignore the HCP in a Section 7 consultation? What outside funding mechanisms are in place for Section 7 vs. Section 10? And finally, in an ideal world, how should Sections 7 and 10 work together in the context of a regional HCP?