January 1, 1900

by Jessica S. Pyatt

There are 79 different species of wildlife native to New Jersey currently listed as endangered or threatened by the New Jersey Division of Fish and Wildlife. All are protected under both the Federal Endangered Species Act ("ESA") and the New Jersey Endangered and Non-Game Species Act ("ENSA"). The discovery of a wood turtle, a timber rattlesnake, or even an American burying beetle on one's property can wreak havoc upon even the best-laid development plans. The rigidity of the Federal ESA and the New Jersey ENSA has struck terror in the hearts of landowners for almost 30 years. Recently, however, the U.S. Fish and Wildlife Service in cooperation with the New Jersey Division of Fish and Wildlife have attempted to make a little-known and little-used exception to these acts more accessible as part of an effort not only to recognize the burden these laws place on private property but also to more efficiently accomplish the purpose of protecting endangered or threatened species. A landowner may obtain an "incidental take permit" after submission of a habitat conservation plan ("HCP") that provides a plan whereby the landowner will dedicate certain resources to the conservation of the species on the property. In return, the U.S. Division of Fish and Wildlife will allow the landowner to complete a development project and promises that no additional regulatory burdens will be placed upon the landowner even if the laws change.

Operation of the Endangered Species Act

The United States Supreme Court has described the Endangered Species Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." The Act states that it is "unlawful for any person subject to the jurisdiction of the United States to·take any such species within the United States." The term "take" is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." In addition, the term "take" has been interpreted to encompass habitat destruction such as that which would be accomplished through building, clearing, or digging.

There are two exceptions to the strict proscription against takings contained in the ESA and the ENSA. The first exception allows the Division of Fish and Wildlife to issue permits to "take" an endangered species for "scientific purposes or to enhance the propagation or the survival of the affected species." The second exception allows for the issuance of a permit if "such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." This section directs a landowner to submit a conservation plan which specifies (i) the impact that will result from the taking; (ii) what steps the applicant will take to minimize and mitigate such impacts, and what funding will be available to implement these steps; and (iii) what alternatives to taking has the applicant considered and why such alternatives are not feasible. Under this section, before a permit for an incidental taking can be issued, the Fish and Wildlife Service must determine whether the proposed taking will not significantly reduce the chances of the species' survival and recovery.

Until recently, obtaining a permit under this section was very expensive and time consuming, taking an estimated two years to complete. This is due in part to the period for public comment provided in the statute, however, it was also due to the evergrowing list of protected species, and the fact that another protected species could appear on the property at any time. Thus, the landowner really had no incentive to spend the time and money necessary to obtain an incidental take permit for one species when it was likely that the Division of Fish and Wildlife could impose new regulatory requirements at any time.

The Campaign to Promote Habitat Conservation Planning

In the last few years, the U.S. Fish and Wildlife Services attempted to reverse this trend by publicly touting the benefits of submitting a habitat conservation plan. FWS has also attempted to make the process easier and less-time consuming for applicants by creating a category of HCP for "low-effect" projects that will result in minor or negligible effects on protected species and their habitats. The low-effect permit process is expedited with the intent of inducing more landowners to develop and implement an HCP. In addition, the FWS has posted a great deal of public information relating to the process of developing and filing and HCP on its website (http://endangered.fws.gov). The intent of these efforts is to encourage landowners to consider conservation efforts as part of an overall development strategy.

There are three phases to the permitting process: (1) the HCP development phase, (2) the formal permit processing phase, and (3) the post-issuance phase. Although the FWS has attempted to streamlines these processes, they are part of a complicated and intricate regulatory scheme, and potential applicants are advised to consult with an attorney to advise and assist with this process to achieve the most efficient and favorable results.

Although the cost and expense required to obtain an incidental take permit under section 10(a) of the Endangered Species Act may be a deterrent to landowners, the FWS has attempted to streamline the process in in attempt to make the ESA more effective as well as to more equitably balance the interests of landowners against the strict provisions of the act. It is anticipated that this program will have beneficial effects for both the wood turtle and the private property owner.

Jessica S. Pyatt ia an associate at Hill Wallack and a member of the Land Use Division which includes the firm's Land Use Applications, Land Use Litigation and Environmental Applications Practice Groups. She concentrates her practice in diverse land use matters.