Legislation amending Hawai’i’s endangered species law contains provisions that are mod eled after concepts found in the federal Endangered Species Act. The National Wildlife Federation has developed brief background sheets on these concepts. Here is a summary of them, drawn largely from the National Wildlife Federation’s fact sheets.
Habitat Conservation Plans
Suppose a landowner desires to develop land in an economically profitable manner, but to do so would entail harm to one or more endangered species. Under Section 10(a) of the federal Endangered Species Act, the land-owner can apply for an incidental take permit if he or she agrees to devise and implement a habitat conservation plan that will ensure that the overall chances of the species’ survival is not harmed by the proposed development.
The National Wildlife Federation writes: “Unfortunately, while the potential benefits of HCPs have not been reacted yet, their potential pitfalls are becoming increasingly apparent. The Clinton Administration has encouraged an explosion of HCP activity without establishing clear scientific standards or public participation requirements first. At the outset of the administration’s second term, roughly 400 HCPs covering millions of acres of habitat have either been approved or are being developed (In the prior ten years, barely a dozen HCPs had been approved). Many of these HCPs allow a substantial loss of valuable habitat, and some even go so far as to allow destruction of habitation the permit holder’s land in return for nothing more than minimal habitat restoration on federal land restoration that federal land managers are already required to undertake on their own. As the dust begins to settle from the initial forty of the Clinton Administration’s HCP activity, many conservationists and scientists are beginning to raise serious questions about the potential adverse impacts of these plans on species recovery and the closed-door processes in which many have been developed.”
Safe Harbor Agreements
Suppose a landowner voluntarily undertakes an activity that actually improves habitat for endangered species on his or her land. While no species were found in the area before the improvements occurred, after the improve ments, protected species are attracted to the area, is the landowner then to be “punished” for having created this improved habitat by not being able to pursue economic development of the land, since it is now home to endangered species?
If the landowner has entered into a Safe Harbor Agreement with the Fish and Wildlife Service, he or she needn’t worry. This agree ment guarantees landowners freedom from additional obligations under the Endangered Species Act if new species are attracted to the “improved” habitat. Nor need the landowner worry about having to maintain the enhanced safe harbor habitat beyond a “baseline” level, established at the time the agreement is made. As the National Wildlife Federation observes, “although these safe harbor agreements lead to temporary habitat improvements, any habi tat that has been enhanced under the safe harbor agreement is no longer fully protected” by the Endangered Species Act.
The National Wildlife Federation goes on to say: “Scientists have raised serious concerns that newly created or restored habitat on private lands wills become a ‘biological sink,’ attracting endangered species from nearby habitat that is protected under the ESA. If species abandon this protected habitat and move to what is essentially unprotected ‘safe harbor’ habitat, the abandoned habitat would lose its ESA protection and both the aban doned and ‘safe harbor’ habitat would be subject to development. The result would be a net loss of habitat for the endangered spe cies.”
(For copies of the National Wildlife Federation’s Endangered Species Act Fact Sheet, write the federation at 1400 Sixteenth Street, NW, Washington DC 20036.)
Volume 7, Number 12 June 1997
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