A Habitat Conservation Plan (HCP) is a required part of an application for an Incidental Take Permit, a permit issued under the United States Endangered Species Act (ESA) to private entities undertaking projects that might result in the destruction of an endangered or threatened species. It is a planning document that ensures that the anticipated take of a listed species will be minimized or mitigated by conserving the habitat upon which the species depend, thereby contributing to the recovery of the species as a whole.
Background The importance of preserving rare species was legally recognized in 1973 when the Endangered Species Act (ESA) was signed into federal law. The purpose of the ESA is not only to protect species that have been listed as threatened or endangered, but also to conserve the ecosystems upon which those species depend. In aiming to protect species in danger of becoming extinct, the ESA prohibits actions that have the potential to result in a "taking" of any listed species. The term "take" under the ESA refers to any attempt or action involving the harassment, harm, pursuit, hunting, shooting, wounding, killing, trapping, capturing, or collecting of any listed species. Under this definition, the alteration of habitat that results in injury to, or death of, any listed species by preventing essential behavior (such as breeding, feeding or sheltering) is considered unlawful "harm". The United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) are the lead agencies tasked with the implementation of the ESA and are therefore responsible for regulating prohibited and allowable activities. While the primary objective of the ESA is the protection of endangered species, and the take of such species is considered unlawful, the ESA is not absolute. In 1982, amendments were made to the 1973 ESA which authorize the Secretary of the Interior and the Secretary of Commerce to allow the take of federally listed species (Endangered Species Act, Section 10a(1)(B)). When non-federal activities that would otherwise be legal have the potential to result in the take of a listed species for example, they may be allowed under an Incidental Take Permit, obtained through the USFWS. To mitigate the take of listed species, Section 10 of the ESA requires that parties wishing to obtain an Incidental Take Permit must submit a conservation plan, hereafter referred to as a "Habitat Conservation Plan" or "HCP," with their application.
Phases of Developing a HCP
I. Pre-application process
Determine permit applicant(s)/HCP preparer(s) In determining the party to prepare a HCP and application for an Incidental Take Permit, two primary factors must be considered; first, the party must be capable of overseeing the implementation of the HCP once approved and second, the party must be capable of funding the implementation of the HCP. Beyond these requirements, parties can vary based on the scope of the proposed action. For example, a single landowner may be the sole preparer of a HCP if they intend to obtain an Incidental Take Permit for an action on their own property and they are the only interested party. For large-scale projects such as those covering a region of land rather than a single property, or those with multiple interested parties rather than a single landowner, the permittee may be a group such as a local or governmental agency.
Determine the members of the steering committee (optional) For large-scale projects, applicants have the option of forming a steering committee composed of persons, such as stakeholders, with an interest in the HCP planning area or affected species. The purpose of a steering committee is to provide the applicant with direction, guidance, advice, and assistance in developing the HCP. Although the development and participation of a steering committee is not a requirement in preparing a HCP, it can be found valuable in facilitating the HCP process when multiple groups with differing interests and opinions regarding the project are involved.
Consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service After the applicant and steering committee members have been determined, consultation with USFWS and NMFS is recommended to ensure that responsible parties have a thorough understanding of requirements and resources available for the development phase of the HCP.
II. Development process
Generate a species list Once the applicant has decided to initiate the development of a HCP, they must identify the species of concern that the HCP will be developed for. All federally listed animal species that have the potential to be impacted by the proposed action/project must be included in this list. Additional unlisted species may also be considered in the HCP. Including these additional species may be beneficial in some cases, if the proposed action has the potential to impact species that are not federally listed at the time the HCP is being developed but are anticipated to be listed within the active duration of the permit; in which case, the HCP would need to be revised to include the newly listed species and may further delay the proposed action. Habitat-based approach An alternative method to developing a HCP for target species of concern is to develop a HCP for a particular habitat type. Under this approach, a specific habitat type found within the HCP area is selected as the focus of the HCP by the permittee and USFWS/NMFS based on the species known to use the habitat. The habitat-based HCP must consider all sensitive species known to use the particular habitat type and all of their habitat-related needs. All species considered within the habitat-based HCP may be included under the Incidental Take Permit. The benefit of developing a habitat-based HCP rather than a species-based HCP is that, if prepared properly, a single HCP would theoretically benefit multiple species or an entire ecosystem rather than only protecting the species listed under the ESA.
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