The Swamp Stomp
Volume 16, Issue 22
Imagine you own a restaurant that was not performing well. In order to increase your revenue, you decide to build a second restaurant, in another section of town. After weeks of searching, you finally find the perfect spot, but you soon find out that your new plot of land is a habitat for an endangered species of bat. You realize that if you build on this perfect piece of land now, you could be breaking federal laws. So what do you do?
In order to build that new restaurant, you will have to go through the process of obtaining an incidental take permit from the U.S. Fish and Wildlife Service. Once the permit is obtained you can proceed with building the additional restaurant, because the “take” of the bat is now legal. So how did this process of having to obtain a permit originate?
To begin with, take a trip back to the 1970’s. It all started with the Endangered Species Act (ESA) of 1973, which was passed in order to provide greater protection to animals in danger of being hurt by human progress. The Act was designed to not only protect species and their habitats, but to also halt the illegal removal and trade of these creatures. This is where the idea of a “take” comes in. A take is defined by the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”. This can include things like habitat modification that results in injury, death, or impairing a species so it cannot perform basic survival skills like eating or breeding.
An “incidental take” is a permit that is required if a company’s business’s activities could potentially come in contact with any listed plant or animal wildlife species. For example, if your construction project required the endangered bat’s tree to be cut down, this would count as a take. Other examples of activities that are considered a take include: building over a habitat, removing a major food source, and tearing down breeding grounds. These permits can apply to species that are listed as endangered and those that are non-listed as well.
In order to enforce the Endangered Species Act, in 1982 the US Fish & Wildlife Service developed Habitat Conservation Plans (HCP). HCPs are required in order to obtain an incidental take permit. HCPs determine the potential effects of the proposed taking and the actions that will be taken to reduce or address potential adverse effects to the species in question. HCPs can be fairly complex documents. An HCP consists of six major sections, which include:
- Introduction and Background
- Project Description and Activities Covered by Permit
- Environmental Setting and Biological Resources
- Potential Biological Impacts and Take Assessments
- Conservation Programs
- Plan Implementation
What does an implemented HCP look like in action? In 2006, Copper Mountain College in California decided to expand in order to meet the demands of the growing population of San Bernardino. The college was planning on expanding its campus into an area where the threatened desert tortoise lives. This expansion would have resulted in a “take” as described in the Endangered Species Act. In order to mitigate damage to this species and to avoid a take, the college applied for a hazard conservation plan. As part of the plan to mitigate the effects to the tortoise, the college designated an 85-acre area where the tortoise could be removed from potential harm, that now serves as a permanent tortoise preserve. In addition, the college monitors the preserve to ensure that there are no threats from predators or human activity. The college also minimizes human activities by providing a Tortoise Awareness Program for people that live in the area. As a result of these actions in preserving wildlife, Copper Mountain College is recognized as environmental steward for the Mojave Desert ecosystem. The intent of the Endangered Species Act was to promote organizations to act in same manner as Copper Mountain College.
A habitat conservation plan is required whenever a proposed project could potentially infringe on a listed species’ habitat and possibly threaten that species. These plans do take time and effort to complete but the intention is to protect wildlife. So next time that you are planning to do a project that may have an impact to the wildlife in the area, be sure to understand the regulations required for habitat conservation plans.
To wit, the northern long-eared bat: “…the present or threatened destruction, modification, or curtailment of summer habitat is not a threat to the species; rather, disease (white-nose syndrome) is the primary threat to the species…” (http://www.fws.gov/Midwest/endangered/mammals/nleb/FAQsNLEBCH.html)
However, in the eastern US, the USFWS increasingly requests fee-based mitigation for loss of protected bat summer roost habitat, that is inherently not a “take” upon the species. In creating summer roost habitat mitigation, it seems USFWS Field Offices are stretching the intent of the ESA, perhaps even ascribing “take” to the loss of commonly occurring suitable summer roost habitat in the species range; thus, patently misinterpreting the provisions of § 9 Prohibited Acts in order to issue entirely speculative incidental take permits.
As a conservationist, I want to see the bats recovered from certain peril as much as anyone, but fear the very custodians of the ESA may jeopardize congressional intent with such well-meaning, but nonetheless wreckless bureaucratic overreach.
Having seen only a bit of chatter on this from the USFWS enforcement arm, I’m curious as to why this growing paradigm remains unchallenged. In time, I fear the USFWS will protect hundreds, maybe thousands of acres of prime summer roost forests that are devoid of listed bats who met their demise; not from the loss of abundant seasonal habitat, but from the ravages of an unmitigated epidemic.