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The Potential and the Pitfalls of Habitat Conservation Planning Under the Endangered Species Act

October 1999

Citation: ELR 10592

Author: Shi-Ling Hsu

Editors' Summary: The ESA is simultaneously the most popular and most hated of environmental statutes. Conservationists fervently support the ESA's mission of preventing the extinction of our country's fish, wildlife, and plants, but private landowners subject to ESA restrictions claim that the Act unfairly and illogically restricts the use of their valuable property. As the agency with primary responsibility for the ESA's administration, the U.S. Fish and Wildlife Service (FWS) is caught between both sides. This Article examines how the FWS uses habitat conservation plans (HCPs) to balance the demands of conservationists and property owners. The Article begins by discussing the divide between conservationists and property owners. It then describes how the Republican majority in Congress, the judicial trend in takings jurisprudence, and the ESA enforcement difficulties faced by the FWS have led to the increased use of HCPs. The Article next examines the appeal, effectiveness, advantages, and disadvantages of HCPs. The Article then explains how the trend in takings jurisprudence jeopardizes the continued legality and use of HCPs. Last, the Article concludes that the FWS should push for an ESA reauthorization bill that includes certain benefits for landowners as incentives for conservation. Without such a bill, the Article argues that the HCP process will be subject to political whimsy and judicial attack.

Shi-Ling Hsu is a Senior Attorney and Economist at the Environmental Law Institute. Mr. Hsu is a graduate of Columbia Law School, and he received his Ph.D. in Agricultural and Resources Economics from the University of California at Davis. Mr. Hsu was an Associate at Fenwick & West in Palo Alto, California, from 1987 to 1989 and at Folger, Levin & Kahn in San Francisco, California, from 1989 to 1990. He was also a Deputy City Attorney for the city and county of San Francisco from 1990 to 1992. The author would like to thank Jim McElfish, Glenn Sugameli, Rick Gooch, Dennis Mackey, Cynthia Dohner, Sybil Vosler, Scott Spaulding, Michael Bean, Russ Henly, and Marca Weinberg for their assistance with this Article.

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