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000294 MANAGING ESA ISSUES HOLLAND & HART LLP populations of the species) are to be delisted, and they can set forth the overall conservation strategy for the species, which can impact or drive the manner in which Section 7 consultations for the species are pursued. Monitoring of and participation in the recovery planning process can thus be worthwhile. v. Section 9 Liabilitv Avoidance Habitat Conservation Planning. The Section 7 consultation procedures apply only with regard to activities requiring a federal action of some sort. Thus, for activities conducted on private or other non-federal lands, where there is no "federal nexus" -- i.e., no federal authorization, approval, funding, etc. -- the consultation process will not apply. Persons pursuing an activity that may impact threatened or endangered species or their habitat must find another avenue to address potential Section 9 takings liability. One such opportunity exists under Section 10(a)(1)(B), which authorizes the issuance of permits for takings that are "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." To obtain a permit under this provision, the applicant must prepare and submit a conservation plan that identifies the likely impact on the species, the steps that will be used to minimize and mitigate those impacts, the funding that will be available to implement those steps, an alternatives analysis, and other information. This process is known as "habitat conservation planning," and the plans are often referred to simply as "HCPs." Historically, there had been relatively few HCPs prepared. The process has been criticized, with some legitimacy, as too expensive and time consuming. However, as Service experience in the HCP process has increased, (and as criticisms of the ESA have mounted), the Service has developed greater confidence that the exercise can be worthwhile. Currently, there are many such plans in the works nationwide, and there have been several highly publicized successes, including the Simpson HCP in northern California (Northern Spotted Owl) and the Georgia-Pacific HCP in the Southeast (Red- Cockaded Woodpecker). Under the right circumstances, the HCP process can be invaluable. Conclusion The ESA is a complex statute that will play an increasingly important role in natural resource and environmental matters ranging from the use of the public lands to the implementation by EP A of its environmental mandates, including CERCLA and the Clean Water Act. Like most environmental regimes, the ESA can best be managed through anticipation and proactive involvement. To date, there has been inadequate recognition of the potential for flexibility in implementation of the ESA. The steps outlined above describe only a few of the opportunities existing within the ESA program for project proponents to help manage the ESA process. Boise:0948721.0 1 (March 1999) - 10 -