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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
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
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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