Schroder Zippin Paper on ESA Sect. 10 Permit Structures 2015

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 ..................................................................................... 2
III. 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 ................................................................ 6
2. Advantages to Programmatic Permits .......................................................................... 8
3. 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.......................................................... 14
A. 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................................................... 18
2. Full Compliance with a Jointly Held Permit .............................................................. 20
3. 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.............................................................. 23
A. 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................................ 31
A. Amount of Incidental Take Authorized ......................................................................... 31
B. Allocation of Authorized Incidental Take...................................................................... 32
IX. Conclusion ........................................................................................................................ 33

1
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).

2
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
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).

3
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.

4
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.

5
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);

6
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/NFH
CP/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
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.”)

7
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).

8
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
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%20R
evised_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

9
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_DEFE
N.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”).

10
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.

11
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.

12
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.pd
f.
92
San Bruno Mountain Area HCP, supra note 91, at V-14.
93
Id. at V-1 – V-2.

13
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
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 . . . .”).

14
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.

15
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.

16
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.

17
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.

18
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/.

19
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).

20
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

21
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).

22
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.

23
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.

24
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.

25
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).

26
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.

Schroder Zippin Paper on ESA Sect. 10 Permit Structures 2015

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