ESA §10 "INCIDENTAL TAKE" EXEMPTIONS (1982) TO §9 PROHIBITIONS

· Secretary can permit incidental taking if applicant submits Habitat Conservation Plan (HCP) that specifies:

--the impact to result from the taking;

--steps the applicant will take to minimize and mitigate impacts and funding available to implement these steps;

--alternative actions the applicant considered and reasons why these alternatives are not being utilized

--other measures the Secretary may require as being necessary or appropriate

· Decisions by Secretary are effectively immune from citizen suits so public interest depends upon bureaucratic enforcement

· use of the HCP exemption has increased dramatically…

--few permits (less than 20) granted from 1982-1994

--since 1993, 450 §10 HCP exemptions approved with 200 pending

--in pending §10 applications, 25 exceeded 100,000 acres and 18 exceeded 500,000 acres

--a group of scientists funded by NSF concluded in 1997 report:

"…over three-quarters of the plans lacked such basic information as the population size of species and whether it was growing or shrinking; a third of the plans did not know the life spans of the species at issue; over half did not have adequate monitoring…there is no way to tell whether the measures are working or not; of the 44 plans studied in-depth, many prescribed mitigation measures that would do more harm than good."