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5 Envtl. Law. 345 (1998-1999)
How to Kill Endangered Species, Legally: The Nuts and Bolts of Endangered Species Act "HCP" Permits for Real Estate Development

handle is hein.journals/environ5 and id is 365 raw text is: HOW TO KILL ENDANGERED SPECIES, LEGALLY: THE NUTS AND BOLTS OF ENDANGERED SPECIES ACT HCP PERMITS FOR REAL ESTATE DEVELOPMENT by J. B. Ruhl' The Endangered Species Act permits land development induced take of protected species on the conditions that the take is not the purpose for the development project, and that certain measures are implemented to minimize harm to the species. One form of incidental take authorization in the Endangered Species Act is the section 10 habitat conservation plan (HCP) permit program. Section 10 of the Endangered Species Act specifically provides for the permitting of incidental takes occurring in land development projects not carried out, funded, or authorized by the federal government. With the increasing attention to private lands as critical habitat for endangered species, this permit program has become important. Relatively little has been written in the way of guidance for land development attorneys on how to navigate the HCP permit process. This Article seeks to fill that gap so that all sides can participate in a more efficient process, one that promotes both development and sustainable conservation. This Article examines the HCP permit process from the perspective of an attorney whose client wishes to develop a moderately-sized parcel of land, the development of which may adversely affect an endangered species. The Article begins by exploring the factors used to LL.M. 1986, The George Washington University Law School; J.D. 1982, University of Virginia School of Law; B.A. 1979, University of Virginia. Visiting Associate Professor of Law (1998-99), The George Washington University Law School, Washington, D.C., and Professor of Law, Southern Illinois University School of Law, Carbondale, Illinois, and Of Counsel, Drenner & Stuart, L.L.P., Austin, Texas. I am thankful to Michael Bean, Holly Doremus, Alan Glen, Sam Kalen, and Majorie Nelson, whose helpful comments on early versions of this Article represented a broad variety of perspectives, and to Karleen O'Connor (J.D. expected 2000, The George Washington University Law School) for valuable research assistance. Portions of this Article are based on my experience representing numerous applicants for habitat conservation plan (HCP) permits. To the extent such passages offer general guidance on how to navigate the HCP permit process effectively, they are not intended to provide legal advice, as legal advice is transmitted only in attorney-client relationships based on specific factual circumstances. Please direct questions and comments to jruhl@main.nc.gwu.edu.

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