[Senate Hearing 106-504]
[From the U.S. Government Publishing Office]
S. Hrg. 106-504
HABITAT CONSERVATION PLANS
=======================================================================
HEARINGS
BEFORE THE
SUBCOMMITTEE ON FISHERIES, WILDLIFE,
AND DRINKING WATER
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
JULY 20, 1999
JULY 21, 1999
OCTOBER 19, 1999
NOVEMBER 3 1999
__________
ON THE DESIGN AND IMPLEMENTATION OF HABITAT CONSERVATION PLANS TO
PROTECT ENDANGERED SPECIES, AS ADMINISTERED BY THE U.S. FISH AND
WILDLIFE SERVICE AND THE NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
53-372cc WASHINGTON : 2000
______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington DC
20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTH CONGRESS
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
ROBERT F. BENNETT, Utah RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
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Subcommittee on Fisheries, Wildlife, and Drinking Water
MICHAEL D. CRAPO, Idaho, Chairman
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri FRANK R. LAUTENBERG, New Jersey
JOHN W. WARNER, Virginia RON WYDEN, Oregon
ROBERT E. BENNETT, Utah BOB GRAHAM, Florida
KAY BAILEY HUTCHISON, Texas BARBARA BOXER, California
(ii)
C O N T E N T S
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Page
JULY 20, 1999
OPENING STATEMENTS
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 2
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 1
Reid, Hon. Harry, U.S. Senator from the State of Nevada.......... 14
WITNESSES
Kareiva, Peter, National Marine Fisheries Service................ 5
Article, Using Science in Habitat Conservation............... 29-67
Prepared statement........................................... 28
Murphy, Dennis, University of Nevada............................. 7
Prepared statement........................................... 67
Pimm, Stuart, Professor, University of Tennessee................. 3
Prepared statement........................................... 26
Responses to additional questions from Senator Chafee........ 27
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JULY 21, 1999
OPENING STATEMENTS
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 71
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey......................................................... 72
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 72
WITNESSES
Barry, Hon. Donald J., Assistant Secretary for Fish, Wildlife and
Parks, U.S. Department of the Interior......................... 73
Prepared statement........................................... 118
Table, Habitat Conservation Plan Inventory..................125-148
Courtney, Steven, Sustainable Ecosystems Institute, Portland, OR. 101
Prepared statement........................................... 162
Responses to additional questions from Senator Chafee........ 163
Hicks, Lorin, director, Fish and Wildlife Resources, Plum Creek
Timber Company, Seattle, WA.................................... 98
Prepared statement........................................... 155
Responses to additional questions from Senator Chafee........ 158
Hood, Laura, Defenders of Wildlife, Washington, DC............... 105
Prepared statement........................................... 192
Responses to additional questions from Senator Chafee........ 197
Statement, Proposed Private Lands Initiatives................ 199
Medina, Monica P., General Counsel, National Oceanic and
Atmospheric Administration..................................... 75
Fact sheets, HCP Handbook, FWS/NOAA.......................... 152
Memoranda, Survival and Recovery Standards Under ESA......... 86-93
Prepared statement........................................... 148
O'Connell, Mike, The Nature Conservancy, Mission Viejo, CA....... 103
Prepared statement........................................... 184
Responses to additional questions from Senator Chafee........ 190
Thomas, Gregory A., president, Natural Heritage Institute, San
Francisco, CA.................................................. 107
Prepared statement........................................... 207
Responses to additional questions from:
Senator Chafee........................................... 214
Senator Crapo............................................ 216
ADDITIONAL MATERIAL
Articles:
Where Property Rights and Biodiversity Converge.............226-253
Developer Seeks to Protect Environment from FWS.............. 183
Letter, ESA reforms, several scientists.......................... 202
Report, Peer Review in HCPs, Deborah M. Brosnan.................169-182
Summary, Optimizing Habitat Conservation Planning................ 217
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OCTOBER 19, 1999
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 261
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 256
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 255
Reid, Hon. Harry, U.S. Senator from the State of Nevada.......... 257
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 259
WITNESSES
Fox, Brooke S., director, Open Space and Natural Resources,
Douglas County, Castle Rock, CO................................ 281
Prepared statement........................................... 347
Glitzenstein, Eric R., counsel, Spirit of the Sage Council,
Defenders of Wildlife and Other Environmental Organizations.... 263
Prepared statement........................................... 303
Moore, James E., director, Public Lands Conservation, The Nature
Conservancy, Las Vegas, NV..................................... 283
Prepared statement........................................... 349
Quarles, Steven, P., counsel, American Forest & Paper
Association, Washington, DC.................................... 285
Prepared statement........................................... 354
Pauli, William C., president, California Farm Bureau, Sacramento,
CA............................................................. 267
Prepared statement........................................... 318
Rose, Don, manager, Land Planning and Natural Resources, Sempra
Energy, San Diego, CA.......................................... 287
Prepared statement........................................... 361
Thornton, Robert D., counsel, Orange County Transportation
Corridor Agencies and Other Intervenor-Defendants in Spirit of
the Sage Council v. Babbitt, Irvine, CA........................ 265
Prepared statement........................................... 310
Willey, Rudolph, president, Northern California Presley Homes,
Martinez, CA................................................... 279
Prepared statement, with attachments........................327-347
ADDITIONAL MATERIAL
Letter, Edison Electric Institute................................ 366
Maps, California HCPs............................................ 300
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NOVEMBER 3, 1999
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 369
Boxer, Hon. Barbara, U.S. Senator from the State of California... 371
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 367
Reid, Hon. Harry, U.S. Senator from the State of Nevada.......... 368
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 368
WITNESSES
Bean, Michael, Environmental Defense Fund, Chairman and Senior
Attorney, Wildlife Program..................................... 401
Prepared statement........................................... 446
Report, Safe Harbor: Helping Landowners Help Endangered
Species, Environmental Defense Fund........................ 455
Statement, Policy on the Establishment, Use, and Operation of
Mitigation Banks for ESA....................................... 448
Christenson, Jimmy, Counsel, Department of Natural Resources,
State of Wisconsin, Madison, WI................................ 389
Prepared statement........................................... 422
Clark, Jamie Rappaport, Director, U.S. Fish and Wildlife Service,
Department of The Interior, Washington, DC..................... 373
Prepared statement........................................... 414
Donnelly, David, Deputy General Manager, Southern Nevada Water
Authority, Las Vegas, NV; accompanied by Jeff Kitelinger, the
Metropolitan Water District of Southern California and Chris
Harris, the Arizona Department of Water Resources.............. 390
Prepared statement........................................... 425
Frisch, Maureen, Vice President, Public Affairs, Simpson
Investment Company, Seattle, WA................................ 396
Prepared statement........................................... 431
Knowles, Don, Director, Office of Protected Resources, National
Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Silver Spring, MD.............................. 375
Prepared statement........................................... 419
Riley, James, Executive Director, Intermountain Forest Industries
Association, Coeur D'Alene, ID................................. 399
Prepared statement........................................... 442
Silver, Dan, Coordinator, Endangered Habitats League, Los
Angeles, CA.................................................... 398
Prepared statement........................................... 439
HABITAT CONSERVATION PLANS
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TUESDAY, JULY 20, 1999
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Drinking Water,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:32 a.m., in
room 406, Senate Dirksen Building, Hon. Michael D. Crapo
(chairman of the subcommittee) presiding.
Present: Senators Crapo, Reid and Chafee [ex officio].
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. This hearing will come the order.
This is a hearing of the Subcommittee on Fisheries,
Wildlife, and Drinking Water on the science of habitat
conservation plans. We intend to have 2 days of hearings on
this critical issue. This begins the series of important
hearings.
Habitat conservation plans were authorized in 1982 through
amendments to the Endangered Species Act to address problems
that effectively precluded landowners from conducting lawful
activities on lands where listed species were present. These
plans have become win/win solutions for both species and
landowners. Habitat needed for the conservation of threatened
and endangered species is managed in a more sensitive manner,
while providing landowners certainty about carrying out
activities on their property.
Nearly 250 of these plans have been negotiated to date, and
approximately another 200 are in progress. Habitat conservation
plans have been praised by conservationists and private
property rights advocates alike. Clearly, they are and will
continue to be an innovative way to address species
conservation and an important tool for preserving the rights of
private property owners.
But, like many innovations, improvements are needed. Groups
on both resource and conservation sides of the debate have
raised concerns about policy and science of HCPs. They have
been critical of the protracted and expensive process of
negotiating HCPs and the adequacy of science used to develop
HCPs, among other things.
These are valid concerns that must be addressed as more
land is managed under habitat conservation plans. We must be
able to protect species based on reliable, scientific
information. At the same time, we must be able to protect
private property by assuring landowners that the Federal
Government won't reopen negotiations on plans each time a new
issue arises.
As I mentioned, this is the first in a series of hearings.
Today and tomorrow we are going to focus on the issue of
science, perceived flaws in the science of HCPs, the gaps in
the data, and how scientists and land managers address the
question of scientific uncertainty.
Wildlife managers and landowners do not have the luxury of
waiting decades for an exhaustive scientific record to be
compiled. In fact, this is quite probably an unrealistic
objective when it comes to science. Wildlife fisheries managers
and landowners are forced to make decisions regularly about how
to manage or develop a particular tract of land without perfect
knowledge of a species. They do this in an attempt to conserve
species, while at the same time deriving an economic benefit
from the land. This is the crux of the subcommittee's hearings
on the science of HCPs.
Over the next 2 days, we will hear from witnesses who have
been directly involved in the development of habitat
conservation plans and who have conducted studies on many of
the plans that are completed and being implemented. Making
habitat conservation plans work better for species and
landowners is an extremely important objective for this
subcommittee. I look forward to listening to and learning from
our witnesses over the next 2 days in an effort to make the
much-needed improvement in habitat conservation plans.
At this time, I'd like to turn to the chairman of the full
committee, Senator Chafee, for his remarks.
OPENING STATEMENT OF HON. JOHN H. CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. Thank you very much, Mr. Chairman.
I want to commend you for holding these hearings on the
science of habitat conservation planning. I think it is
splendid you are doing this, and I must say you've got a very,
very distinguished group of witnesses, not only today but
tomorrow, likewise, so I congratulate you.
I note in your remarks that you pointed out some statistics
that are very important--that some 245 HCPs since 1995 have
been approved, with another 200, as you mentioned, in the
pipeline. And it is my understanding that over six million
acres are now being managed under HCPs, with 75 different
species being protected. So this is a big operation that we're
involved with under the Endangered Species Act.
Mr. Chairman, because of time constraints, I would just ask
that the balance of my statement might be put in the record. I
look forward to hearing the witnesses today.
Senator Crapo. Without objection.
[The prepared statement of Senator Chafee follows:]
Statement of Senator John H. Chafee, U.S. Senator from the State of
Rhode Island
Thank you, Mr. Chairman. I want to commend you for holding these
hearings on the science of habitat conservation planning. This is an
important issue and one that I believe is directly relevant to the
continued success of the Endangered Species Act (ESA). We all often
invoke the need for good science in decisionmaking; this hearing takes
an important step toward improving the science that we use.
Habitat conservation plans (HCPs) are a true success story under
the Endangered Species Act. They have played a critical role in
bringing landowners to the table to help conserve hundreds of species
at risk, both those listed as threatened or endangered under the ESA
and a myriad of others.
I understand that the Fish and Wildlife Service and the National
Marine Fisheries Service have approved over 245 HCPs since 1995, with
another 200 in the pipeline. Those numbers are impressive. Each new HCP
represents a commitment to preserve habitat or manage resources to
benefit species. Over 6 million acres are now being managed under HCPs
and over 75 different species are being protected. Perhaps just as
importantly, each new HCP provides another landowner with needed
regulatory relief from the strict prohibitions of the ESA.
I appreciate, however, that HCPs have not been perfect; they can
and should be improved. There are certainly legitimate questions about
the quality and quantity of science available to develop and implement
many HCPs. Do decisionmakers have enough reliable information on which
to base decisions about resource use and appropriate conservation
measures in HCPs? In the absence of that information, how do they
address the scientific uncertainty? How do they balance the risk to the
species and the need for landowner certainty? And how do they encourage
the continued collection of information and incorporate that
information to improve the HCP?
To its credit, the Administration has, over the past few years,
implemented a series of reforms to try to address some of these issues
and make HCPs work better. I applaud their efforts, but I also believe
that the underlying scientific and policy questions will benefit from a
broader debate through the legislative process.
As you know, the ESA reform bill that we drafted in the last
Congress included a number of provisions intended to enhance the HCP
program, but many of the issues that you are addressing in these
hearings were not yet ripe. They are now. Your leadership on these
issues, therefore, is both timely and critical. I hope that with these
and other hearings on HCPs, we can improve on the work that we began on
HCPs in the last Congress.
I look forward to hearing from the distinguished witnesses this
morning and their perspectives on how the science of HCPs can be
improved.
Senator Crapo. We expect several of our other Members to
arrive from both sides, and when they do we will see if there
is an occasion for them to make an opening statement, but
without any further delay let's begin with the panel.
I believe you have already been advised that we would like
you to keep your remarks to 5 minutes, if possible, so that we
can have as much time as we can for questions and answers and
interaction.
We will begin with Professor Stuart Pimm from the
University of Tennessee.
Professor Pimm, please go ahead.
STATEMENT OF STUART PIMM, PROFESSOR, UNIVERSITY OF TENNESSEE,
KNOXVILLE, TN
Dr. Pimm. Thank you.
I greatly appreciate your giving me the opportunity to
discuss the issue of habitat conservation plans. The scientific
community particularly welcomes your leadership on this issue,
because it is quantitatively the most important aspect of
endangered species protection.
Between one-half and two-thirds of endangered species are
not found on Federal land. We Americans cannot adequately
protect our natural heritage unless we protect species on
private, State, county, and other lands encompassed by HCPs.
The rapid expansion of HCPs within the last 5 years or so
provides unrivaled opportunities for the necessary stewardship.
This is both an exciting time and a challenging one as
scientists consider the progress to date and how to improve
future plans.
Research confirms the old adage that one should not put all
of one's eggs in one basket. Most endangered species have
become endangered because we force them into a few baskets--a
limited amount of space where they are now especially
vulnerable to change, both natural and human-caused.
The first advantage of HCPs is their potential to minimize
risk by protecting species in more than a few places. Spreading
a species' risk of extinction across many places will often be
a better bet than intensive scientific study and visionary
management in just one place. Most of us manage our financial
investments by spreading risk in much the same way.
The second advantage is that at least 60 percent of
endangered species need active habitat management to survive.
Without control of alien weeds or without periodic controlled
fires, some species will succumb if all we do is to put a fence
around them.
The HCP process can encourage appropriate habitat
management, and do so over increasingly large areas.
The experience to date on HCPs has been that some have been
better than others. How could it be otherwise? The analysis of
HCPs undertaken by the National Center for Ecological Analysis
must surely be viewed in this light. I believe that the
report's most serious criticism argues that many HCPs may be
based on the best available scientific data, but that those
data may not be sufficient.
To me, the report's most important omission is that it does
not fully address this tradeoff between having many good plans
versus a few superb and omniscient ones. Limited resources will
always mean that one cannot have many perfect plans.
Of course, the NC's report raises the possibility that we
may have many plans, but poor ones. While I may manage my
investments by spreading risk across many stocks, that does not
mean I accept a preponderance of poor ones.
The report notices many numerous deficiencies that need to
be addressed by future plans. Its greatest strength is its
unified assessment of the plans. Its most important
recommendation is that there should be a central repository of
plans to provide models and comparisons for those who will
produce plans in the future.
Criticisms of inadequate data need to be viewed in the
context of what is practical. I have no personal experience of
HCPs, but I have extensive experience of section 7
consultations between the Fish and Wildlife Service and other
Federal agencies. I believe the parallels to be useful. Many of
those consultations are informal, friendly, and the issues are
quickly resolved. I suspect that many HCPs may be relatively
uncontroversial. One size does not fit all, however. Some
section 7 consultations are difficult, contentious, and require
major investments of resources. Surely HCPs will be likewise.
It was to address different degrees of ecological
uncertainty that Dr. Gary Meffe of the University of Florida
and I wrote to Senator Chafee in January of last year. Our
letter was co-signed by more than a dozen scientists, all with
extensive experience of conservation issues. We offered the
following recommendations:
First, the scientific rigor underlying the plan should
influence the relative length of the accompanying assurances.
The long-term assurances to accompany plans that encompass all
or a very large portion of a range of a species, the rigor of
the underlying science is especially important.
Second, any No Surprises policy should be crafted in a way
to encourage identification in the plan of possible future
contingencies and a means of adapting management in response to
them.
Third, and finally, the potential conservation benefit of a
plan ought to influence the extent and duration of the
assurances provided.
Thank you for your attention.
Senator Crapo. Thank you very much, Dr. Pimm.
Next we will turn to Dr. Peter Kareiva. Dr. Kareiva is from
the National Marine Fisheries Service in Seattle, WA.
Doctor.
STATEMENT OF PETER KAREIVA, NATIONAL MARINE FISHERIES SERVICE,
SEATTLE, WA
Dr. Kareiva. Thank you.
I am here to speak to you about a large national study of
habitat conservation plans which I supervised while a professor
in the zoology department of the University of Washington.
Since this was before I worked for NOAA, these findings do not
represent the views of NOAA.
First, about the study, the study was recently completed,
with a posting of all of its results and data on a publicly
available website in January 1999. We used volunteer labor of
119 biological researchers from eight premier research
universities--Yale University, University of California
Berkeley, Santa Cruz, Santa Barbara, University of Washington,
University of Virginia, Florida State, NC State. The study was
supported by the American Institute of Biological Sciences and
National Center for Ecological Analysis and Synthesis.
We examined 208 HCPs that had been approved as of August
1997. Of those 208, we took a sample of 43 HCPs for which we
attempted to read every supporting document and every relevant
article in the scientific or agency literature that might
provide pertinent data. Often, this amounted to reading several
thousand pages of documents and tables.
The data base we produced contains nearly 90,000 entries.
This is the largest quantitative study of HCPs yet produced,
and in some sense is the first quantitative study.
First, major conclusions of the study. No. 1, we frequently
lack adequate data regarding the most basic biological
processes pertaining to endangered species, such as: What is
the rate of change in their populations locally or nationally?
What is their schedule for reproduction? What is happening to
their habitat?
Second, given the data available, HCPs generally make the
best use of the existing information in a rational manner, and
there is evidence that the quality of HCPs with respect to
using science has been steadily improving.
Third, however, for many HCPs scientific data are so scant
that they really should not be called ``science based.'' There
is no agency failing here nor any failing of individual
preparers of HCPs. No one could do a better job, given the
limited sources and poor quality of information that are
available.
Fourth, very few HCPs included in this study were designed
to include adequate monitoring of populations or habitats in a
way that could at least allow us to learn from our actions and
create data bases that could inform future decisions. This is a
golden opportunity that is being missed.
The bottom line: Everything preceding in my testimony has
had very little of my personal emphasis and reflects a
straightforward condensation of the long National Center for
Ecological Analysis report, which is available at a website.
I want to end by leaving you with what I see as the bottom
line of this research regarding science and HCPs. Sometimes it
is too easy to get lost in the details and lose site of the big
message. I wish to emphasize, however, that the bottom line is
my personal conclusion regarding what I think are the most
important aspects.
First, the absence of data bases that track patterns of
population change and habitat for threatened endangered species
is a national embarrassment. Often, these data exist somewhere
in a file drawer, in a researcher's notebook, or scattered
among several publications, yet, in this age of computers and
the internet, our data bases of information on basic natural
history of endangered species are primitive.
Many of us are aware of how much national or even State
computerized criminal data bases have revolutionized law
enforcement. The same should happen with resource management
and endangered species. Without such data bases, we cannot know
where are the safe places or the dangerous places for
endangered species. We need to be able to go on line and
quickly find out what is happening with endangered species in
terms of hard numbers: How many individuals? Where? How many
acres of habitat left? How much of the remaining habitat exists
in publicly owned lands? Investment in such a data base would
be in the best interest of all parties so we can at least have
access to the most current information before we begin debating
consequences.
Second, we do not even have a national data base that
tracks the paper administrative record of HCPs. In other words,
at this point one cannot get on the internet and find a list of
all HCPs that address a particular species or the total acreage
of land for a species that is covered administratively by the
HCP process. This is analogous to a doctor prescribing you
medicine but not knowing what other prescription drugs you may
be taking.
Third, in light of all this scientific uncertainty, if HCPs
are to be pursued in the interest of balancing development and
environment, then minimally HCPs should be required to include
rigorous peer reviewed monitoring programs that allow us to
learn from them.
Mr. Chairman, thank you for this opportunity to testify. I
know the HCP process is being seriously improved. Moreover, one
reason I came to work as a scientist for the Federal Government
and especially National Marine Fisheries Service is it is easy
to throw stones from an ivory tower and criticize how the
Government does its resource management science, and I have
thrown some of those stones, but I wanted to see if I could
make the science work any better before I continued to
criticize the jobs others were doing.
I look forward to answering questions.
Senator Crapo. Thank you very much, Dr. Kareiva.
Finally, Dr. Dennis Murphy of the University of Nevada,
Reno.
Dr. Murphy.
STATEMENT OF DENNIS MURPHY, UNIVERSITY OF NEVADA, RENO, NV
Dr. Murphy. Thank you very much.
Just as introduction, I should tell you that my background
with HCPs started with the very first one on San Bruno Mound
back in 1980 and has continued through work right now on the
Nation's largest ongoing HCP, which is the 5.5-million-acre
Clark County HCP in the State of Nevada.
I would like to say that the science that is being used to
inform decisions under the Federal Endangered Species Act is a
dynamic science. One would be hard-pressed to find more
combative and constructive exchange in conservation biology
than that between the supporters of the de-listing of grizzly
bear populations in the northern Rocky Mountains and their
opponents. Both sides have mustered compelling technical
arguments to support their politically opposed cases. Our
understanding of bears and their biology has immensely grown
around that debate.
Likewise, both science and stewardship techniques have
contributed to saving the California condor and the black-
footed ferret, and, as you know, have brought the peregrine
falcon and bald eagle back from the brink of extinction.
Moreover, one needs to look no further than the Fish and
Wildlife Service's own recovery plans for the desert tortoise
and northern spotted owl to identify path-breaking analysis and
application of cutting-edge concepts from population biology.
All this, of course, suggests that science is at the center of
our efforts to save biodiversity, but the real question is: Are
these examples the exceptions or the rule?
When it comes to science and the Endangered Species Act,
unfortunately, they are the exceptions. Most recovery plans for
listed species lack even the sparest description of the
mechanics by which imperiled species perpetuate themselves. By
and large, we know vanishing little about our species at risk
and realistically how we might attempt to save them.
Now, while that state of affairs is lamentable, it is not
wholly unexpected, since academic scientists are only now
developing the tools necessary to understand the population
dynamics of species and to predict with some accuracy their
fates.
Very pertinent to these hearings today and tomorrow is that
there is another suite of species that we may have lost the
opportunity to save--species that would have benefited from
good science. The unfortunate Houston toad provides a most
poignant example. It was one of the earliest species listed
under the 1973 Act. The application of science may well have
saved it, but a flawed hypothesis about the habitat factors
that support the species, a lack of responsive studies in the
face of obvious declines, and poorly designed monitoring
schemes have combined with land development to push the listed
species toward extinction. The Houston toad, it appears, will
be lost.
Against this background, we assess science and HCPs. My
guess is--my conclusion that we need better and more science to
produce more effective, efficient, and accountable HCPs is
shared by almost all my academic colleagues. Where I may part
view with at least some of them, and certainly with some
environmental organizations, is on how much more science is
necessary and how it can be achieved.
I think we can create much better HCPs with not a whole lot
more science, but that science must be focused, strategically
directed, and creatively engineered.
Why don't we have a clear science agenda for HCPs?
Certainly, to start with, the academic scientists have failed
to deliver the realistic, what we might call ``parsimonious''
science necessary to inform HCPs. The Departments of Interior
and Commerce, in their own turn, have failed to seek such a
science, responding their HCP guidelines that cookbook guidance
is not possible since the biological analysis demanded for each
HCP, for each listed species, is unique and cannot be codified.
I sort of like that idea that the work that I do is so
special that only a specialist can do it, but, frankly, the
assessment is just not true.
Stephen's kangaroo rats, Tecopa pupfish, indigo snakes all
share a multitude of biological characteristics that allow for
a common theme to their conservation.
I think as soon as we are released from our artificial and
unrealistic view of how much novel scientific information is
necessary to inform HCPs, we can begin to develop the
exportable toolbox of scientific techniques that are necessary
to assist our best conservation intentions.
Tougher will be where multiple imperiled species are
distributed across extensive landscapes and where they run into
economic expediency, what Secretary Babbitt has called
``environmental and economic trainwrecks.'' Under those
circumstances, we're going to need the most creative engagement
of available scientific information.
I recommend that the National Research Council cooperate
with the Departments of the Interior and Commerce to develop
science guidelines for conserving multiple species and natural
communities on lands, both public and private. Those guidelines
must recognize that HCPs have timetables driven by political
and economic realities. Those guidelines must recognize that
indicator or surrogate species will have to be identified which
can allow us simple insights from complex natural systems. And
those guidelines must encourage habitat conservation planners
to learn by doing, to manage adaptively using the best current
information.
To that point, we cannot hold up our HCPs waiting for all
the answers to our most pressing technical questions. Frankly,
the courts may not let us. However, we can engineer our plans
to take advantage of emerging information and scientific
breakthroughs.
I support adaptive management, even though I am a fan of
this Administration's No Surprises policy, which many contend
conflicts with adaptive management. Incorporating both adaptive
management principles and No Surprises assurances in the
language of a reauthorization bill should be a bipartisan goal
of this committee.
Now, I don't suggest, in conclusion, that the greater
public must pay the private sector to obey the law, but an
infusion of Federal dollars will inevitably be necessary when
reasonable exactions of habitat for private landowners falls
short of the pressing needs of species, or when unforeseen
circumstances put imperiled species at unexpected additional
risks.
HCPs are usually the results of a crafted deal. They allow
for a public concerned about threatened and endangered species
to take private property without fully compensating landowners.
Lubricating that process with strategically directed dollars
will be good for species, good for landowners, and good for the
rest of us.
I thank you for your time.
Senator Crapo. Thank you very much, Dr. Murphy.
We'll turn first to the chairman of our committee, if you
have any questions.
Senator Chafee. No questions at this point.
Senator Crapo. OK. I will proceed then.
Let me go back to you and start out with you first, Dr.
Pimm.
Do you believe it is possible to generate better science
and then, in turn, cause better HCPs in a relatively short
time?
What I'm getting at is the issue here of how long it takes
to generate the necessary science for adequate HCPs.
Dr. Pimm. When one considers that HCPs have been around
only a very short period of time, I think it is clear that
there has been a huge amount of progress made in looking at
those plans and looking at our data needs, figuring out what we
need to know, what we probably don't need to know, and
therefore improving the process.
And I believe that Dr. Kareiva's report is a huge step
forward, because it employs what we scientists call ``the
comparative method.'' It allows us to look at what other people
have done and learn from their strengths and weaknesses. I
believe we are on a very fast learning curve. When it comes to
HCPs, great progress has been made in their quality.
Senator Crapo. Thank you. And, Dr. Kareiva, there obviously
is a conflict here between the amount of science we need and
the amount of time we have to proceed. Could you comment on the
same issue? Do we have the ability to develop general
guidelines, as opposed to the specific science needed for each
species, that will allow us to proceed with HCPs? Or must we
hold off and wait for more-extensive science? How do you
address that conflict between the need for more science and the
need to be able to move ahead now and develop HCPs?
Dr. Kareiva. Yes, and just listening to what the three of
us has had to say, I think we would probably agree on this.
There's a lot of information out there we already have, and
it's not as though we have to undergo a national initiative for
great basic research. Part of the challenge is just organizing
that information with a little bit of energy.
I agree with Dr. Murphy that there are certain common
principles that can be applied to sets of species. It would be
good to do that.
I also think that we already know a lot--this is one of the
things that I have tried to make clear and I think comes out in
the report. It's just that what we know is not easily
accessible. So given the time pace with which HCPs are
negotiated and gone through, it's not possible to go into those
data notebooks and those file drawers and get all this out.
But if we did produce data bases, if we put energy into
that, subsequent efforts would go much faster, because there
are, I think, 70 or 80 endangered species currently covered by
HCPs. Any data that you put in a computer data base for any of
those HCPs will inform future conservation plans that touch on
those same species.
In summary, I think we actually know quite a bit, and much
could be accomplished simply by knowing, for example, for the
spotted owl, how many acres are protected in habitat
conservation plans. That should be easy to get off the web.
Senator Crapo. I was intrigued by your bottom line
suggestion, No. 1, of the lack--that we have a lack of a
national data base, so to speak. And it sounded to me like you
were recommending that, in any legislation that this committee
might generate to deal with improving HCPs, that perhaps part
of that should be a very major national effort to develop such
a data base. Is that correct?
Dr. Kareiva. I don't think I'm astute enough with respect
to policy to know if that is correct, but I do think one thing
that could be done even within the existing HCP process is to
require HCP preparers to provide data in a publicly available
way to what could be a national data base.
For example, in preparing an HCP, you could create a data
file, put it on the web so that other people could examine the
data for population trends and numbers. This would facilitate
somebody or some organization putting together a data base.
Senator Crapo. If that were done, and if we started to
generate such a data base, do you believe that that data would
ultimately lead to the types of generalizations that could be
made that Dr. Murphy has suggested that would allow us to move
ahead with common understandings across species?
Dr. Kareiva. Yes, I do.
Senator Crapo. Dr. Murphy, I'd like to ask you to comment
on the same general issue. I think you had somewhat in your
testimony, but please elaborate. I understood you to say that,
although we need to engage in getting better and more thorough
science, that we can proceed now to significantly improve HCPs
and species restoration efforts.
Dr. Murphy. An anecdote from the very early 1990's is
probably appropriate here. You may remember one of the hot-
button issues in endangered species implementation was the
Stephen's kangaroo rat in western Riverside County, in which a
great number of landowners in a very go-go real estate
environment were not allowed to move forward with development
while science supposedly resolved issues related to the
conservation of the species.
Over a 2\1/2\-year period we were doing extremely arcane
experiments with the demographics of the species and looking at
the genetics of the species when, in fact, several years later
we still had not mapped the distribution of the species. We had
landowners who were being economically impacted that had no
kangaroo rats, and other landowners who held some of the best
habitat for the species who were not part of the conservation
plan.
We need a hierarchical approach to the science in HCPs; a
set of cookbooks that tell agency staff how and when to ask
specific questions at different levels of complexity--that is,
from the landscape level to the metapopulation dynamics of
species, down to structure of populations of species, and then
to their genetics. I really do think that if the agencies sat
down with academic scientists we could come up with a
prioritization scheme that would at least keep to a minimum the
wheel spinning that tends to go on with HCPs.
And, as you well know, one of the greatest criticisms of
the implementation of the Act is the squandering of time--the
fact that we go into HCPs with a degree of economic expediency;
we come out of HCPs often exhausted.
Senator Crapo. Now, even if we had such cookbooks, as you
described them, with an approach identified to the kinds of
questions that need to be asked, it seems to me the issue still
arises: How do we deal with the question of time that is so
critical for the owners of the private property who need to
have some type of certainty in how to proceed.
How do we proceed with an HCP in the face of the voluminous
questions that we would need to have answered about a species?
Dr. Murphy. Well, I don't think the questions have to be
many, but I do think that we haven't taken advantage of
opportunities to learn from past activities. There are now 200
HCPs on the books and there are dozens of large-scale
conservation efforts on our public lands, the most notable of
which certainly being the plan for the northern spotted owl and
the forest plan that followed it.
My sense is that we can infer greatly from other systems
and other species, and we're losing that opportunity. One
doesn't have to spend 5 years studying the population dynamics
of the California gnatcatcher to create a conservation plan for
that species if we creatively use information drawn from other
species which have like biologies and live in like
circumstances, since insectivorous birds share many
reproductive and other life history characteristics with each
other. We're not taking advantage of engagement of that sort of
information, which is readily available.
Senator Crapo. Thank you.
Senator Chafee.
Senator Chafee. Thank you very much.
Let me give you a hypothetical here and see if I understand
what each of you are saying.
Let's assume that the red-cockaded woodpecker is
disappearing and has been listed as endangered. Now, let's also
assume that it is still fairly abundant in Georgia, in the
forests of Georgia, some of it on private land and some of it
on military land, Fort Benning, and the Interior Department is
prepared to establish an HCP to protect the surviving red-
cockaded woodpeckers.
Now, what ought we to do? I'll start with you, Dr. Pimm.
Dr. Pimm. I think the red-cockaded woodpecker is a superb
example.
Senator Chafee. Well, thank you very much. You're doing
very well so far.
[Laughter.]
Dr. Pimm. It is a superb example, because if we were to
make Fort Benning the only place where that species could
survive, in all probability it would not. That forest will be
hit by a hurricane eventually, like many of the other bits of
forest in the southeast have, and there is always the risk of a
catastrophic fire.
However well we were to manage that species in one place,
it would suffer an unacceptably high risk of extinction. The
only way that species can likely survive is if we protect it in
a variety of different places across its range, and that range
is mostly in private ownership.
I recall hearings in the House a couple of years ago, the
House Resources Committee, on the Endangered Species Act,
hearing from somebody giving testimony who had protected his
land, looked after his land very well, and, as a consequence,
had a large acreage of long-leaf pine savannah, which is a
necessary habitat for this species, and he felt unnecessarily
constrained because he had that endangered species, which
seemed to be particularly unfair because had he chopped those
forests down and grown Christmas trees he would not be so
constrained.
We understand that there is a deal that must be done here,
and that is to encourage those people who have grown large
trees on their property in the southeast and have red-cockaded
woodpeckers, and that process recognizes that those people must
have a right to their livelihoods and, at the same time, must
be encouraged to continue to protect, as they have done, some
of their land.
HCPs provide for that, and therefore they are a very
powerful way of protecting certain kinds of endangered species.
Without HCPs, I do not think the red-cockaded woodpecker can
persist.
Senator Chafee. But what has all that got to do with this
requirement for better science that all three of you have been
stressing? You know, without great scientific study, it is
known that on these adjacent lands to Fort Benning are the red-
cockaded woodpecker, and just the situation you were
describing. Now, what should be done differently than is being
done now in connection with the science?
Dr. Pimm. I think there is a tension in the conservation
biology community of just how much science we need. What I am
hearing from my colleagues and the colleagues here is that we
often have sufficient science, even though we don't have
complete science. Given the fact that we need to have
sufficient science across a very large area, then the HCP
process is one that allows a species to persist.
If we study this species to death in one place, that won't
be sufficient. We have to have sufficient science, and we
believe, I think, that we often do have sufficient science for
many of these species.
Senator Chafee. Dr. Kareiva, what would you say to this
situation that I've outlined?
Dr. Kareiva. I think it is a good example, too.
Senator Chafee. I hope Dr. Murphy will come through, too.
Dr. Kareiva. He'll say the same. But first, what we would
like--when you're preparing that HCP for your Georgia site, you
should be able to quickly find out what other HCPs have been
done for the red-cockaded woodpecker. You should be able to
find that out in 5 or 10 minutes.
Senator Chafee. You mean across the Nation?
Dr. Kareiva. Right, because you're worried about a species.
What other HCPs have been done and where for that species, for
the woodpecker.
There are several. There are dozens of red-cockaded
woodpecker HCPs. That's pertinent to how you view this
particular one.
Second, since they did those HCPs, in order to receive
their incidental take permits, they had to ask the question:
What is the population and what is the take? So then you would
like to summarize how many birds are on these other HCPs and
how are they doing, how are those populations doing.
Third, because several of those HCPs have been in operation
for 5 to 10 years, you'd like to be able to ask of these other
HCPs: Have we learned anything from them?
Now, all of that is not rocket science, in any sense. That
is all information that is already available in some HCPs, but
it is not systematically accessible. That is what I mean. That
could speed up the process of doing the Georgia HCP. It could
make it better-informed scientifically. It would work to the
advantage of all parties to put it in this broad context
quickly.
Senator Chafee. So your principal point, if I understand
it, is there ought to be some central data base on--whether it
is some kind of rat or whether it is a red-cockaded woodpecker,
that you can go to.
Dr. Kareiva. Right.
Senator Chafee. You or whoever. I suppose it is Interior,
isn't it?
Dr. Kareiva. Right.
Senator Chafee. They can go and find out how this would
work out. If you're going to set up this HCP near Fort Benning;
is that how it worked in North Carolina?
Dr. Kareiva. Yes.
Senator Chafee. Well, that makes sense. What do you say,
Dr. Murphy, to the problem I posed?
Dr. Murphy. A most incisive example, most certainly.
[Laughter.]
Dr. Murphy. I'm from the great, untrammeled West, where we
are actually working on a habitat conservation plan in southern
Nevada, 5.5-million acres. Of the 5.5-million acres in Clark
County, 93 percent is publicly owned. This habitat conservation
plan is allowing for the entire build-out of the 7 percent of
Clark County, NV, that is privately owned, and it will fund
conservation planning, management, and monitoring, as well as
science, on the rest of the landscape.
We, obviously, don't have that benefit across all of the
country, but in your example, where there are public lands that
can be managed for a species, that's where species conservation
should start. We may need private lands, as Dr. Pimm suggested,
to spread the risk of extinction. There are characteristics of
some of the private lands, and certain private lands in States
beyond Georgia, that will help to contribute to the
perpetuation of the species.
I think that our job as scientists is to contribute to
relieving the tension between Fifth Amendment Constitutional
guarantees to landowners for compensation and the need to
protect habitat on private property to spread extinction risk.
Where incisive science can help is in identifying the
minimalist reserve design that can be used from private land
which causes the least economic disruption. I think that the
science necessary to do that, as I said in my prepared
comments, is there. We just haven't synthesized it, and, as Dr.
Kareiva suggests, we certainly haven't institutionalized it and
made it available.
Senator Chafee. Well, suppose somebody has a thousand acres
next to a person with a long-leafed pine on his property that
he wants to eventually cut. That's how he is making his living.
Along comes the Government and says, ``We're putting this into
an HCP.'' I think he would be disturbed, to put it mildly. In
the HCP he is subjected to certain constraints. How encouraged
will he be when they tell him that it is scientifically
splendid?
Dr. Murphy. In actuality, it is the landowners, not the
Government that initiate HCPs. The history of HCPs suggests
that sort of option less planning isn't really happening on the
ground. The fact is the agencies, to their credit, have tried
very hard to engineer plans that allow for planning options and
fair economic development off landscapes. I don't know of any
case where a landowner with a thousand acres was completely
shut down to protect a species.
Most HCPs have been creative engagement to try to minimize
potential economic impacts and losses and to keep the agencies
out of court, most HCPs have tried to engineer deals that make
it possible for species to be sustained in the face of
scientific uncertainty.
Senator Chafee. Well, I think you're right. I think that
these things have worked their way out fairly successfully. Dr.
Pimm was talking about the landowner adjacent to Fort Benning.
Under the way they've worked out these HCPs, there still can be
takings under certain circumstances, because of the no-surprise
policy. I think these things have worked out pretty well.
What do you think, Dr. Kareiva?
Dr. Kareiva. I think sometimes they do work out very well,
because conservation in practice is really about tradeoffs, and
when the tradeoffs are intelligently informed, they are the
right tradeoffs to make. Again, that returns to my point about
the data, because it is only by looking at data that you can
find out whether you are identifying what really is
irreplaceable or whether you're identifying the right to the
tradeoff.
So certainly in principle it is a good idea, and in
practice occasionally it is. It could be done much better.
Senator Chafee. Thank you.
Thank you, Mr. Chairman.
Senator Crapo. Thank you, Senator Chafee.
We've been joined now by Senator Reid. Welcome, Senator
Reid. Would you like to make an opening statement or any
comments?
Senator Reid. I would ask, Mr. Chairman, that my statement
be made part of the record as if it were read.
Senator Crapo. Without objection.
[The prepared statement of Senator Reid follows:]
Statement of Hon. Harry Reid, U.S. Senator from the State of Nevada
Thank you, Mr. Chairman, for holding this important hearing. As you
know, habitat conservation plans and the ``No Surprises'' policy have
been two of the trickier issues facing this Committee as we have
struggled in recent years to improve the Endangered Species Act.
I believe you are right to focus on the science of Habitat
Conservation Plans first rather than an immediate discussion of the
policy. Like so much of the Endangered Species Act, HCP's are driven by
science and it is important for this Committee to get a better handle
on exactly what that means.
All too often, there is a tendency to question as unsound
scientific conclusions that are contrary to what we want to believe or
that don't get us to where we want to be in terms of policies.
That is why I am glad that we are turning first to a panel of
scientists, professionals who have dedicated their careers to working
on these sorts of issues to help shed some light on what is working,
what is not, and what is needed to make HCP's an effective tool.
Although I would like to welcome all of our witnesses to Washington
this morning, I am especially pleased that Dr. Dennis Murphy is with
us.
Dennis and I have been friends for many years. He runs the
Biological Resources Research Center at the University of Nevada-Reno
and is the Director of the Nevada Biodiversity Initiative, one of the
nation's most progressive research initiatives.
While I understand that he is an expert in the area of Habitat
Conservation Plans, I know him primarily due to his outstanding
research and applied science efforts at Lake Tahoe.
I know that all of my colleagues have listened to me with great
patience over the years talk about my determination to protect the
Crown Jewel of the Sierras from further degradation. I won't go into
great detail today.
However, I will make the point that it is due to the efforts of
folks like Dr. Murphy that all of the diverse communities at Lake Tahoe
have been able to unite behind a $900 million dollar plan to preserve
and protect the lake.
Without the scientific underpinnings of the plan, no one would have
the confidence required to justify the sacrifices that will need to be
made to save this national treasure.
Let me close by saying that today's hearing is the kick-off of the
second phase of an incremental process that we have begun this year to
see if some legislative progress can be made on reforming the
Endangered Species Act.
During May and June, this Subcommittee worked together to produce
legislation that addresses some critical habitat and recovery habitat
issues. It was a very open and collaborative process and it produced
language that everyone can embrace.
That package is now awaiting action on the Floor. I am hopeful that
the spirit of cooperation that has marked this process so far can
continue and we can fix areas of the ESA that need some work.
After coming so close to getting a comprehensive reform bill done
last year only to see it scuttled at the last minute, I have concluded
that incremental reform is the only way to go at this time.
While I know that this approach is not universally popular, I feel
confident that, as long as everyone remains willing to compromise and
work together, we can make a lot of progress.
Thank you, Mr. Chairman. I look forward to working with you.
Senator Reid. I also would express my appreciation to you
for holding these hearings, and apologize for not being here at
the time they started. I had some duties to cover for Senator
Daschle with a meeting with Senator Lott and was unable to be
here with the national Governors.
I wanted to be here for a number of reasons. One is the
importance of this hearing. Senator Chafee, Baucus, and your
predecessor, Kempthorne, you know, we worked on a bill that we
thought was really a good compromise. Had it moved forward in
the fall when we introduced it, the bill would now be law and
we'd be all happier. But, as more time went on, barnacles
gathered on the bill and people looked at it more closely than
I think they should. Anyway, we weren't able to push that
legislation.
I would hope that, as a result of the hearings you are
going to hold today and tomorrow, that we can move forward with
this reauthorization of this very important law.
Let me also say I wanted to be here because of Dennis
Murphy. During almost my entire time that I've spent on this
committee, which is now going on 13 years, I've worked with Dr.
Murphy. He worked at Stanford, and we're very fortunate that he
moved from Stanford to University of Nevada at Reno, where he
is doing some outstanding work not only on endangered species,
generally, but also on our joint work with the State of
California on Lake Tahoe. He is certainly eminently qualified
to testify on this issue and to help us with the myriad of
problems that have developed at Lake Tahoe.
So, having said that, I got here late. I'm going to have to
leave early because I have another meeting with the Prime
Minister of Israel that I have to attend, so I really apologize
for the interruption and extend to you my congratulations on
your willingness to take on this very difficult issue.
Senator Crapo. Well, Senator, we recognize your difficult
schedule and appreciate the time and effort you've made to
participate with us, and we also--I also, and I know I speak
for Senator Chafee, look forward to finding the most effective
path forward in terms of reforming the Endangered Species Act,
and we'll look forward to working with you in that regard.
Senator Reid. You know, if we don't do something, we're
going to wind up with problems, as we're going to have the
Interior bill we hope comes up this Wednesday, and we're going
to have a knock-down, drag-out battle there dealing with the
grizzly bear, and we shouldn't do that. We should be able to
have a law that is in place that prevents those from doing this
on a piecemeal basis.
Senator Chafee and I have been through those piecemeal
battles, and we need to get rid of them, don't we, John.
Thank you very much.
Senator Chafee. Thank you very much, Senator.
Senator Crapo. I'd like to ask a few more questions to each
member of the panel. The issue I'd like to go into right now is
this tension that is apparent between the policy of No
Surprises and the need for adaptive management.
I'll start with you, Dr. Pimm. I would appreciate any
comments that you might have in that regard, but there is, to a
certain extent, a conflict between the need to be sure that we
provide the landowner with the kind of certainty and assurances
of No Surprises so that the landowner can then take necessary
steps to utilize his or her private property in the way that is
contemplated by the HCP, and the fact that, as we move along
through the process, the policy of evaluating and developing
and furthering the science may lead to new and different
conclusions or new needs with regard to the species.
How should we address that issue?
Dr. Pimm. I think there are two ways of doing that. One of
them is embodied in the HCP concept, itself. That is, as I said
earlier, the risk spreading. If we have a lot of HCPs for red-
cockaded woodpeckers, then the surprise failure of some of them
would not be as catastrophic. We should spread the risk across
a lot of different areas, recognizing that nature is full of
surprises.
The second aspect to surprise, of course, is that you adapt
to it. That's the nature of the second recommendation that I
made, which is that HCPs that allow for adaptation should be
given a greater length of time than those that do not.
As an example, we often do not know what the optimal fire
frequency should be for many of these habitats. Red-cockaded
woodpecker is in a fire-dominated habitat. Because we don't
know that, we can at least recognize that there could be
different fire regimes that are optimal. We could encourage
landowners to use different fire regimes, monitor the results,
and then act accordingly, and those different alternatives, if
they are specified ahead of time in the HCP, make it an
ecologically, scientifically stronger plan than if there were
to be just a fixed plan with a fixed management.
So I think the obvious solution is to encourage HCPs that
allow for different outcomes, to monitor those outcomes, and to
respond accordingly.
Senator Crapo. Thank you.
Dr. Kareiva.
Dr. Kareiva. Adaptive management is basically collect data
as you manage, and also do management as an experiment.
I think one simple way to reconcile some of that tension is
to, in the beginning, where vast areas are involved, or species
at special peril are involved, be precautionary to begin with.
Play it very safe. But then, as you collect data and do
adaptive management, recognize that what you learn can go both
ways. It doesn't just have to be that as you collect data you
find out you have to impose more restrictions on the landowner.
You could learn information that led you to impose less
restrictions on the landowner.
So if you start off precautionary, as you collect data and
adaptively manage, the information you glean can work in the
favor of development. For example, we have de-listed some
species, such as gray whales and effectively de-listing species
is based on data. De-listing species results in less
restrictions and it is based on collecting data, seeing how
well species are doing.
Senator Crapo. Thank you.
Dr. Murphy.
Dr. Murphy. I was on the National Academy of Sciences
Committee on Science and the Endangered Species Act that
released a report in 1995. This was a point that we made quite
clearly and was an example of what we thought needed to be done
with either the statute or regulations; at the point of
listing, we need to do an analysis of the challenges faced by
the species to identify areas critical to the existence of the
species, so that we walk into our habitat conservation plans
with as few surprises likely as possible. I really do think
where we need the science is up front.
There are relatively few species that get listed and then
immediately enter into the HCP dialog. Most of the species
subject to HCPs have been listed for quite a long time; the sad
part of that is that we've lost opportunities to stockpile
information that would be useful in planning. The biological
opinion that accompanies proposals for listing quite often has
a great deal of information that is useful to HCP planners. We
should extend on that.
Senator Crapo. I didn't hear any of you say we should hold
off moving ahead with entering into HCPs, even though there may
be a need in those HCPs to provide No Surprises.
As you are probably aware, the No Surprises policy is under
criticism from some quarters and under attack in terms of
whether it should even continue to be a policy.
I guess the question I have is this: If we were to, as a
matter of policy, eliminate the No Surprises requirement or
position in HCPs, I would assume that we would have fewer HCPs,
and I would further assume that that would ultimately mean less
benefit for the environment and for species, because we would
have more conflict and less progress made in terms of entering
into HCPs.
I'd like to know of your feelings about that. Am I correct
in that? I guess the question is: Are we better to proceed now,
even though we work with a No Surprises policy, rather than to
hold off until we have so much assurance through the scientific
study that we can address an HCP without engaging in No
Surprises?
Dr. Murphy.
Dr. Murphy. We have been operating under a functional No
Surprises policy. In fact, we haven't re-initiated an HCP
because of changed circumstances to my knowledge. As you point
out, 1995 kicked off the most active time for those HCPs and we
have made, de facto assurances to landowners and it has worked
fairly well.
I think the problem may be just simply in the nomenclature.
``No surprises'' sounds terribly terminal. It suggests that if
you've got a species on your property and circumstances change,
doggone it, we're not going to do anything about it. I think a
better term for it is ``fair assurances.'' And I do believe
that if landowners have entered into an agreement in which
development activities are foregone. There should be
contractual assurances.
If we want to sustain these agreements in the face of
changing circumstances with species, then funds have to come
from somewhere else.
It seems that we have starved our HCPs economically, and I
think that has led to the perception that they are not as
effective as they could be, and that, in fact, circumstances,
when they change, may not be appropriately dealt with
financially.
Senator Crapo. Dr. Kareiva or Dr. Pimm, did either of you
want to comment on that?
Dr. Kareiva. I basically agree with the simple way that you
stated it. It is better to live with some No Surprises in order
to get more HCPs, and we could just be careful about how we use
it.
Dr. Pimm. Yes, I agree with that.
Senator Crapo. Thank you.
Senator Chafee, did you want to ask more?
Senator Chafee. Just a question or two if I might, Mr.
Chairman.
In your written statements, I believe each of you referred
to general scientific standards for HCPs, and I wonder if you
could be a little more specific on what kind of standards you
are referring to.
Would that cover you, Dr. Pimm?
Dr. Pimm. Yes. I think the point is simple. The HCPs are
new. Some of them haven't been terribly compelling
scientifically. Some have been very good. You'd expect there to
be variation. I think the process is a learning one. I think it
is a rapidly learning one. And I think we all understand that
we need to have better standards. I think the best way of
achieving that is to have a repository for HCPs so people can
see which are the good models and which are the ones that are
not so good.
Senator Chafee. You're referring to the data base that Dr.
Kareiva was referring to; is that correct?
Dr. Pimm. It's very obvious, when you read some of the
HCPs, that some of them have missed out important information.
When you have the two together, you can see that, and I think
those who develop them would benefit from that comparison, too.
Senator Chafee. Do you agree with that, Dr. Kareiva?
Dr. Kareiva. Yes, I do.
Senator Chafee. Dr. Murphy.
Dr. Murphy. Dr. Kareiva's report identified five areas, and
he might be able to detail those five areas where better
science would be useful in HCPs. That's an extremely important
starting point in terms of bringing better science to habitat
conservation planning.
The other thing that may be lost in the discussion--and it
is certainly lost when we try to compare small and large HCPs,
southern HCPs with western HCPs, is the fact that the species
that are targets of these planning exercises fall into very
broad categories that in many ways differ greatly.
California condors, black-footed ferrets and some other
species, after a zoo-like conservation challenge--we're down to
a few individuals. It is a very different conservation
challenge to save those species than most others. In addition,
we've got narrowly endemic species, species that are found only
on a few acres. Those species need a different science to save
them than some of our more broadly distributed species. The
species that recur in the media as conflicts where economic
development is moving forward tend to be wide-ranging species
that are relatively rare--spotted owls, your example of the
red-cockaded woodpecker, desert tortoise, and so on. Those
species need a different style, a different type of science.
And I think the idea of having guidelines that
differentiate between these categories of species could go a
long way in focusing the science at early stages of listing and
reducing the possibility of surprises.
Senator Chafee. Your point being that some are so exotic,
if you want to use that word, so rare that the approach on them
would be different than something that is endangered but is
more commonly found, if you could. Is that correct?
Dr. Murphy. Yes. And then you can imagine the examples are
numerous. There are rare plants that are found on only a couple
of acres on the eastern slope of a mountain in Utah. There are
also anadromous fish stocks that are found in just a few
streams; those present a whole different suite of challenges in
terms of their conservation, which are more complicated, both
scientifically, politically, and economically.
Senator Chafee. Well, I agree with you. We have a Block
Island--I believe it is called ``burrowing beetle,'' which is
apparently extremely rare and only found in this one particular
area in Block Island, Rhode Island, and it is different than
something that is like the bald eagle, which is found across
such extensive areas in our Nation.
Thank you very much, Mr. Chairman. I appreciate having the
opportunity.
Senator Crapo. Thank you.
I have a few more questions. We may be interrupted by a
vote here, and we may be finished by the time the vote occurs.
If not, we'll make a determination at that point.
The Administration has published an exhaustive handbook on
the guidance for HCPs, and I would be interested from each of
the panel members if you have suggestions as to how this
handbook might be improved, relating to some of the points that
you've raised today.
Dr. Pimm.
Dr. Pimm. I can't address that specifically, but I can
address it by parallel to other reporting needs that I have
seen. However good the handbook, it surely helps to have a lot
of examples in front of you, and I think, in addition to that
handbook, a suite of examples, if not the entire data base on
HCPs, would be very helpful.
Senator Crapo. All right. Thank you.
Dr. Kareiva.
Dr. Kareiva. Early on in our study many of us read that
handbook. I think part of the problem is just the
implementation of it, frankly. In the future, examples will
help in the implementation. We need very concrete guidance.
Also, instead of having one handbook to fit all species, we
need to use some of the sort of categorization that Dr. Murphy
is talking about. Breaking things up into different categories
will help.
Senator Crapo. You know, one thought I had was with regard
to the data base that you talked about. I don't know if the
handbook addresses developing such a data base, but perhaps
administratively we could get moving toward that through
handbook guidance.
Dr. Kareiva. Yes, I think that would be--it would be very
easy to do, in fact.
Senator Crapo. Dr. Murphy.
Dr. Murphy. There is just simply a disconnect between the
academic scientific colleagues of mine who believe that there
really are explicit scientific guidelines and agency staff who
think otherwise. The explanation given by the Fish and Wildlife
Service is that each individual species and each individual
planning circumstance poses such a distinct challenge that you
can't provide useful guidance. My sense is the right scientists
sitting down and working on that guidance could go a long way
toward creating a systematic and prioritized approach to bring
better information to HCPs.
Frankly, the new HCP guidebook is long on implementation
directions and very short on scientific guidance, and that
could be fixed tomorrow.
Senator Crapo. That's very helpful.
Would you contemplate that the handbook could also contain
some of the common or the basic standards and guidelines that
are common among species that could be considered? Is that
where--would those types of things which you've discussed with
us here today be appropriate for inclusion in the handbook?
Dr. Murphy. Certainly, and I'd go further. The exercise of
HCPs is an exercise of splitting the difference. An HCP doesn't
move forward unless a landowner gets some sort of economic
benefits from the HCP, itself. That process of splitting the
difference between environmental and economic benefits has
great implications certainly for species, but it is, in the
end, a quantitative exercise: How much land to get how much
benefit to species?
We're not only talking about categorization of species,
we're talking about a method for assessing the costs and
benefits of the taking of species in certain circumstances.
That's a tougher thing to put into guidelines, but a narrative
on the thinking that goes into that kind of an exercise needs
to be documented.
Senator Crapo. Thank you.
Dr. Murphy, to switch directions for a minute here, you've
mentioned in your written testimony and also in some of your
answers to questions that a source of funding to help
facilitate the adaptive management would be very helpful. That
idea is also very intriguing to me because, as we discussed the
conflict between the need for No Surprises or, as you
indicated, strong assurances, and the need for adaptive
management, as that arises, if the adaptive management moves in
the direction of more restrictive needs, often that can't be
accommodated within the context of the kinds of assurances that
need to be given at the beginning of an HCP to allow for the
agreement of the landowners, but, sort of in the context, if I
understand you right, in the context of mitigation, perhaps if
there were some type of external source of resources brought
into the picture by the Government to help address the needs
that would be brought into conflict, we could breach the skids,
so to speak, find a way to move forward in getting past the
conflict between the private landowners and the needs of the
species.
Could you elaborate on that? And I'd also like to get the
information or the thoughts of the other members of the panel
on that issue.
Dr. Murphy. I don't know that I can elaborate. You've
stated it quite clearly.
I do think that a process that is facilitated with adequate
funding can allow for creative engagement that might not be
realized otherwise.
An example is the Headwaters deal, which was funded with
$500 million Federal and State funds and 3 years of
negotiation--a very good HCP. My sense is that to facilitate
HCPs through public funding would be a rarer-than-normal
circumstance; that if there were a pool of funds, an endowment,
that could be stewarded, we would find that we wouldn't have to
dip into it all that often.
But there are circumstances, and the circumstances tend to
be those in which we've got narrowly distributed species
largely found on the private lands where the contribution to
persistence of the species can't be buttressed by habitat on
public lands. Those rare circumstances tend to be coastal
southern California, the bay area of California, the valley
lands there, and in some of the developing areas of the south
and southeast, where a funding pool like that would really
facilitate good planning in areas where economic constraints do
exist.
Senator Crapo. Dr. Kareiva, do you have any thoughts on
this?
Dr. Kareiva. Essentially I agree with Dennis in the sense
that, yes, we need a pool like that. We probably wouldn't have
to use it much. In fact, given a little time we could probably
look at the data much the way he just suggested in terms of
rare endemics and find out and anticipate how much we would
have to use it.
Senator Crapo. Dr. Pimm.
Dr. Pimm. I, too, agree. I think that many of the HCPs are
unlikely to be controversial. They are likely to be fairly
straightforward, and they can move ahead with relatively little
intervention.
There is always going to be somewhere we are going to have
to sit down and expend a lot more time and effort and money,
but my sense is that these two are going to be the noticeable
and the controversial examples, but relatively the minority.
Senator Crapo. I believe that was a notification of the
vote. I have just a couple other questions, but, Senator
Chafee----
Senator Chafee. No, I'm all set. Thank you very much, Mr.
Chairman. I want to thank the members of the panel. This was an
excellent panel, and I'd congratulate you for having assembled
it.
Senator Crapo. Well, thank you, Senator.
I will just ask a few other questions and you can feel free
to get on your way if you need to.
Senator Chafee. OK. Fine. Thank you very much.
Senator Crapo. We appreciate your participation here.
Senator Chafee. Thank you all very much. Dr. Pimm I
understand came back especially from Brazil for this.
Dr. Pimm. Yes, sir.
Senator Chafee. I want to thank you very much for doing
that.
Senator Crapo. We appreciate it. In fact, I should say at
this point that the information and insights that the panel has
provided are going to be very helpful as we approach this, and
I've already--not only through the written testimony, which I
reviewed last night, but through the presentations today,
developed a lot of ideas that I think could be very useful in
pursuing reform of this area of the law.
I wanted to pursue a little bit further this question of
how to use the financial resources that might be made available
through some form of money.
As you were all answering my last question, I was thinking
about the situation in my part of the country. The Pacific
Northwest is very heavily public land dominated, where the HCP
problem isn't directly involved with the public land, but if
you've ever looked at maps of the interspersal of public and
private land, it is sort of like a checkerboard effect, and the
management of public land inevitably impacts the management of
private land, and vice versa.
It seems to me that there may also be a need for financial
support in terms of a lot of the management issues that we face
in large ecosystems such as the management issues we face
relating to salmon or steelhead, which virtually impact the
entire watershed of the Snake and Columbia River systems, which
is most of four or five States, or the bull trout, which is
becoming another significant issue in some of those regions, or
the grizzly bear, which was mentioned by you, Dr. Murphy.
You apparently are aware of some of the very difficult--
I'll even use the word ``hostile''--debates that we are having
over how to manage some of those types of species.
The need for a financial source of mitigation for some of
the impacts that the management will be ultimately needed for
some of these species seems to me to be very evident.
One of the problems I see there is that that might be an
area where the need to dip into the pool of money is not only
regularly faced, but in large dollar amounts.
Is that context something which you had in mind in terms of
what you were suggesting, Dr. Murphy, or am I going down an
entirely different trail right now?
Dr. Murphy. You can spend money very quickly by going after
the grizzly bear.
My sense is that we're never going to get there if we have
to go through an appropriations process to respond to crises;
that we really do need a pool of money, an endowment of sorts
that can be tapped, hopefully conservatively, to resolve
problems.
I am concerned that we have disproportionately directed
funds at a very few species over the years under the Endangered
Species Act, and that in many ways has contributed to our
current circumstance in which we've got many hundreds of
species on the list.
I think well-directed funds from such a pool might be used
to try to obviate the need for listing, to keep candidates off
the endangered species list, to take care of many of the
species that aren't being taken care of through the
appropriations processes.
We've got an emergency room circumstance where grizzly
bears, northern spotted owls, and a number of other species get
a disproportionate amount of our economic attention, and
anything we can do to spread the funds that are available to
additional species is going to be very important.
But my thought is--and it is always a tough budget
circumstance, but maybe now is the time that we should be
looking for an endowment that would spin off some dozens of
millions of dollars a year for strategic investment in species
that are involved in HCPs.
Senator Crapo. Thank you.
Any comment on that, Dr. Kareiva or Dr. Pimm?
Dr. Kareiva. I think there certainly is a need for such an
endowment, and instead of being so pessimistic about it we have
to realize there is the opportunity to recover some of these
endangered species. We have to realize that such an endowment
could lead to faster de-listings. When species are de-listed a
lot of money is spent enforcing the Act. The enforcement is
done haltingly, in ways that hamper local economics. Here de-
listing clearly can save money.
We really have to heed the benefits of taking species off
the list. If we used such an endowment well, in the long run it
could be very effective even economically, because it would
help us get species sufficiently recovered that they could be
de-listed.
Senator Crapo. Thank you.
Dr. Pimm.
Dr. Pimm. With Dr. Kareiva being the expert on salmon and
Dr. Murphy the expert on grizzly bears, I can't contribute to
that other than to say that, ``You know, the act is not that
old, 25 years or so, and there are a lot of species like gray
whales, peregrine falcons, bald eagles that we've recovered. It
has been a very successful act at preventing species'
extinction, and I think we should always keep that in mind when
we look at the potential for improving it.''
Senator Crapo. Thank you.
I have just about 5 minutes left, and so I want to get into
one other area.
Some scientists have argued that the better approach to
saving endangered species is to focus on preserving large
tracts of habitat, sort of what you were saying, Dr. Pimm, I
think, to preserve more area, not just hundreds of acres but
thousands and tens of thousands of acres, rather than on
individual conservation measures aimed at individual species.
This is, you know, sort of like what has been called the
ecosystem approach or the watershed approach.
As I understand it, the underlying argument is that if you
preserve the habitat broadly like this, then the species that
depend on that habitat will also necessarily be preserved, and
you maintain the important ecological relationships among the
habitat.
Can you comment on this ecosystem-based approach? And I'm
thinking about is it scientifically justified? And also, how
does that relate to the need for specific habitat conservation
plans in more-localized and smaller situations?
Dr. Pimm.
Dr. Pimm. I think one of the most exciting documents that
has been produced in the last few months has been the multi-
species recovery plan for south Florida. There is no other area
in our country that is as diverse ecologically. That area
contains the Everglades, it contains uplands, it contains
wetlands, it contains a barrier reef. And that plan recognizes
that we should be planning at the landscape level--the
ecosystem level, if you like--and for many, many species.
I actually think that in the past that has been implicit
but not explicit, and the spotted owl issue was not just a
single species but the several hundred other species that
shelter underneath it in old growth forests.
I think there is a movement to recognize that we should
make all of those species explicit, and that multispecies
recovery plans involving hundreds of species do just that.
So I think the scientific community, the Fish and Wildlife
Service, is indeed moving in the direction of looking at the
entire package of species in an area.
Senator Crapo. Thank you.
Dr. Kareiva.
Dr. Kareiva. Two responses to that. First is in this large
study that we did we broke the habitat conservation plans in
two categories, they come in two categories--species-based and
habitat-based. It was our evaluation that the habitat-based
ones were generally sounder scientifically.
Second, more broadly, I think there is actually a pretty
wide consensus that this sort of habitat ecosystem perspective
is the way to go, with a caveat that you still always have to
be counting birds, counting plants, counting fish, because if
you just go out and count ground you may be wrong.
Senator Crapo. Dr. Murphy.
Dr. Murphy. Dr. Kareiva said it. I think we need to plan at
the habitat, the landscape level. We need to do our science,
though, not only at that level. We also have to focus on
species, themselves.
The idea somehow that we can understand ecosystems well
enough to be able to create a good habitat conservation plan
that takes care of all the constituent species just doesn't
hold up at this point. We need specific information about the
species that reside in these habitats.
Senator Crapo. And it seems to me that if you had a broad
understanding of the needs of the habitat, in general, that
that can form a significant part of the science that helps to
develop what is appropriate in individual HCPs. Is that true?
Dr. Kareiva. Certainly.
Senator Crapo. Each of you are nodding yes.
Dr. Pimm. Yes.
Senator Crapo. I will indicate that for the record.
Well, gentlemen, I want to thank you for coming today. As I
indicated, the advice that you've given and the information
that you've provided is very helpful.
To wrap it up, I'd like to just say that what I am hearing
you say in a broad sense is that, although there is still a
need for developing the data base and expanding our
understanding of the science that is available and expanding
the science that we can achieve, that we should not lose sight
of the value of HCPs as they currently exist; that they are
helpful and we can improve.
Is that a fair summary of the testimony?
Dr. Pimm. Yes.
Dr. Kareiva. Yes.
Dr. Murphy. Yes.
Senator Crapo. Well, thank you.
I would also like to encourage you, as you have further
thoughts on this, to feel free to submit them to the committee.
We are working on this issue very closely, and we are going to
try to identify the areas in which we can improve our focus at
the policy level on how to address HCPs. We want to do so in a
way that develops broad-based public support, and I think that
the kinds of information and suggestions that you've provided
today are going to help us do that.
Please continue to work with us.
I'm reminded that, because of the business of our schedule,
which we always have around here, not all of the Senators have
been able to attend. We are sure that some of them are going to
want to ask you some questions for the record and we would ask
you to remain available to respond to their questions as we
provide them to you. Would you each be willing to do that?
Dr. Pimm. Yes.
Dr. Kareiva. Yes.
Dr. Murphy. Yes.
Senator Crapo. All right. Thank you very much. Without
anything further, then, this hearing is adjourned.
[Whereupon, at 10:51 a.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
Statement of Dr. Stuart Pimm, University of Tennessee
I greatly appreciate your giving me the opportunity to discuss the
issue of Habitat Conservation Plans. The scientific community
particularly welcomes your leadership on this issue because it is
quantitatively the most important aspect of endangered species
protection. Between a half and two-thirds of endangered species are not
found on Federal land. We Americans cannot adequately protect our
natural heritage unless we protect species on private, State, County
and other lands encompassed by HCPs. The rapid expansion of HCPs within
the last 5 years or so provides unrivaled opportunities for the
necessary stewardship. This is both an exciting time and a challenging
one as scientists consider the progress to date and how to improve
future plans.
My research confirms the old adage that one should not put all
one's eggs in one basket. Most endangered species have become
endangered because we have forced them into a few ``baskets''--a
limited amount of space where they are now especially vulnerable to
change, both natural and human-caused.
The first advantage of HCPs is their potential to minimize risk by
protecting a species in more than a few places. Spreading a species'
risk of extinction across many places will often be a better bet than
intensive scientific study and visionary management in just one place.
Most of us manage our financial investments by spreading risk in much
the same way.
The second advantage is that at least 60 percent of endangered
species need active habitat management to survive. Without control of
alien weeds or without period, controlled fires some species will
succumb if all we do is to put a fence around them. The HCP process can
encourage appropriate habitat management and do so over increasingly
large areas.
The experience to date on HCPs has been that some have been better
than others--how could it be otherwise? The analysis of HCPs undertaken
by the National Center for Ecological Analysis must surely be viewed in
this light. The report's most serious criticism argues that many HCPs
may be based on ``the best available scientific data'' but that those
data may not be sufficient. To me, the report's most important omission
is that it does not fully address this tradeoff between having many
good plans versus a few superb (and omniscient) ones. Limited resources
will always mean that one cannot have many, perfect plans.
Of course, the NCEAS report raises the possibility that we may have
many plans, but poor ones. While I may manage my investments by
spreading risks across many stocks that does not mean I would accept a
preponderance of poor ones. The report notices numerous deficiencies
that need to be addressed by future plans. Its greatest strength is its
unified assessment of the plans. Its most important recommendation is
that there should be a central repository of plans to provide models
and comparisons for those who will produce plans in the future.
Criticisms of inadequate data need to be viewed in the context of
what is practical. I have no personal experience of HCPs, but I have
extensive experience of the Section 7 Consultations between the Fish
and Wildlife Service and other Federal agencies. I believe the
parallels to be useful. Many of those consultations are informal,
friendly, and the issues are quickly resolved.
I suspect that many HCPs may be relatively uncontroversial. One
size does not fit all, however. Some Section 7 consultations are
difficult, contentious, are require major investments of resources.
Surely, some HCPs will be likewise.
It was to address different degrees of ecological uncertainty that
Dr. Gary Meffe of the University of Florida and I wrote to you in
January of last year. Our letter was co-signed by more than a dozen
scientists all with extensive experience of conservation issues. We
offered the following recommendations:
First, the scientific rigor underlying the plan should influence
the relative length of accompanying assurances. Plans that rest upon a
substantial scientific foundation, about which there is little serious
disagreement as to their sufficiency or adequacy, should properly
receive longer-term assurances than those that rest upon a more
marginal scientific foundation and for which there is substantial
disagreement regarding their sufficiency or accuracy.
For long-term assurances to accompany plans that encompass all or a
very large portion of the range of a covered species, the rigor of the
underlying science is especially important.
Second, any ``No Surprises'' policy ought to be crafted in such a
way as to encourage identification in the plan of possible future
contingencies and a means of adapting management in response to them.
One way to do so is to link the duration of assurances provided to the
extent to which a plan identifies and allocates responsibility for
future contingencies. Other things being equal, those plans that
specifically address a variety of potential future contingencies and
clearly identify how they will be handled warrant a longer term of
assurances than plans that make little or no effort to do so.
Third, the potential conservation benefit of a plan ought to
influence the extent and duration of the assurances provided.
Thank you for your attention.
______
Responses by Stuart Pimm to Additional Questions from Senator Chafee
Question 1. You mentioned in your testimony that you agree with the
report produced by the National Center for Ecological Analysis and
Synthesis that there should be a central repository of plans in order
to provide a source of models and comparisons for the future. Where do
you feel would be the best location of this repository? Who should
undertake this project?
Response. The Fish and Wildlife Service would seem to be an obvious
place to deposit Habitat Conservation Plans, since it under the
Endangered Species Act that they are produced. While I do not
understand the administrative details, I do feel that in these days of
web pages and easily produced CD-roms that this should not be a
particularly onerous task. The plans themselves are documents that can
very simply be uploaded onto a web site or assembled onto CDs. My
experience of other large scale data bases available as government
documents suggest that this would be well within the limits set by
other activities. (For instance, the Multi-species Recovery Plan for
South Florida is a huge document.)
Question 2. Some scientists have argued that the better approach to
saving endangered species is to focus on preserving large tracts of
habitat--not just hundreds of acres, but thousands and tens of
thousands of acres--rather than on individual conservation measures at
individual species. This is essentially an ecosystem approach. The
underlying argument is apparently that if you preserve the habitat, the
species that depend on that habitat will also be preserved. And you
maintain the important ecological relationships within that habitat.
Can you comment on this ecosystem-based approach? Is it justified? What
are the scientific issues that need to be addressed if you focus on
preserving ecosystems, instead of protecting species here and there?
Response. There is no doubt that protection of our national
biological heritage will be achieved most effectively by protecting
larger, more connected and more natural areas. The smaller, more
fragmented, and more managed a set of areas, the greater the problems
we will encounter. Some of the more contentious issues that we have
faced--the spotted owl, the California gnatcatcher, various species in
the Everglades, for instance--stem from the difficulties of managing
species across too small an area.
Nor is there any doubt that protecting habitat is an essential task
in protecting species. The ESA states precisely this in its opening
statement of purpose. And the Supreme Court's decision (Sweethome
versus Babbitt) confirmed the importance of habitat, agreeing with a
Brief of Amici Curiae Scientists that I helped draft.
There is a danger, however, in thinking that ecosystem-management
is somehow an alternative to species management. In practice, many
examples of apparent single-species management including the three
examples listed above are issues of ecosystem management: old growth
forests in the Pacific Northwest, the Coastal shrublands of California,
and our largest wetland, respectively. The issues surrounding the red-
cockaded woodpecker are likewise an ecosystem problem: the long-leaf
pine savannas of the southeast are one the most endangered ecosystems
in the country.
My sense is that many now understand that the use of particular
species as ``umbrellas'' under which other species shelter has caused
difficulties in the debates of protecting our natural heritage. Multi-
species plans--like the one mentioned above--are more transparent in
that they list all the species in danger. As a consequence, they are
also manifestly oriented toward preserving ecosystems. It has to be so:
I do not see how one can define a particular ecosystem except by the
special species that it contains.
As an example, I see within the South Florida Plan an inevitable
convergence between species planning and ecosystem management. And if
multi-species planning can be done there, in the most biologically
complex corner of our country, then surely it can be done elsewhere.
______
Statement of Peter Kareiva, Senior Ecologist, Northwest Region of the
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce
Mr. Chairman, my name is Peter Kareiva, and I am a senior ecologist
with the National Marine Fisheries Service (NMFS) Northwest Science
Center in Seattle, Washington, where my primary responsibility is
developing a science-based risk analysis that can guide efforts to
recover endangered salmon populations. I am here to speak to you about
a large national study of Habitat Conservation Plans (HCPs) which I
supervised while a Full Professor in the Zoology Department at the
University of Washington. Since this was before I worked for NOAA,
those findings do not represent the views of NOAA. My experience and
expertise regarding HCPs are derived from this national study and from
20 years of active research in conservation biology.
about the study
The study was initiated in September 1997 and was completed with
the posting of all of its results and data on a publicly available
website in January 1999 (http:/www.nceas.ucsb.edu/projects/hcp/). We
used the volunteer labor of 119 biological researchers, including 13
faculty members and 106 graduate students from eight premier research
universities around the country (Yale University, University of
California at Berkeley, University of California at Santa Cruz,
University of California at Santa Barbara, University of Washington,
University of Virginia, Florida State University and North Carolina
State University). The study was supported by the AIBS (American
Institute of Biological Sciences: $19,000) and NCEAS (National Center
for Ecological Analysis and Synthesis: $82,000). NCEAS is funded by the
National Science Foundation as a center dedicated to bringing
ecologists together to solve our most pressing problems in both basic
science and in the arena of public interest (such as this HCP issue),
and in a rapid-response fashion.
We examined 208 HCPs that had been approved as of August 1997. Of
those 208, we took a sample of 43 HCPs for which we attempted to read
every supporting document and every relevant article in the scientific
or agency literature that might provide pertinent data. Often this
amounted to reading several thousands of pages of documents and tables
and speaking at length on the phone to biologists. Efforts were
coordinated by using internet and the web to maintain a dialog among
research courses being taught at the eight different universities. Data
analysis and actual synthesis of these data took place at NCEAS, which
houses excellent conference and computer facilities. The data base we
produced contains 89,908 entries. This is the largest Quantitative
study of HCPs yet produced, and in some sense is the first quantitative
study. By quantitative I mean that our evaluation of HCPs is in the
form of actual numbers and scores which can be statistically analyzed
and updated, as opposed to narrative descriptions.
major conclusions of the study
(1) We frequently lack adequate data regarding the most basic
biological processes pertaining to endangered species--such as what is
the rate of change in their populations locally? Nationally? What is
their reproductive schedule? What is happening to their habitats in
quantitative terms (percent lost or gained per year)?
(2) Given the data available, HCPs generally make the best use of
the existing information in a rational manner, and there is evidence
that the quality of HCPs with respect to using science has been
steadily improving.
(3) However, for many HCPs. scientific data are so scant, that the
HCPs really should not be called ``science based'' since science
requires data from which inferences are drawn and tested. There is no
agency failing here, nor any failing of individual writers of HCPs--no
one could to a better job given the limited sources and poor quality of
information that are available.
(4) Very few HCPs included in the study were designed to include
adequate monitoring of populations or habitats in a way that could at
least allow us to learn from our actions and create data bases that
could inform fixture decisions. This is a golden opportunity that is
being missed. Second, so-called ``adaptive management'' may be
mentioned in HCPs, but an extremely small percentage of HCPs actually
establish any adaptive management procedures (complete with statistical
power analyses for assessing whether they are likely to work).
the bottom line
Everything preceding in my testimony has had very little of my
personal emphasis, and instead reflects a straightforward condensation
of the report which is available at the website above. However, I want
to end by leaving you with what I see as the bottom line of this
research regarding science in HCPs. Sometimes it is too easy to get
lost in the details, and lose sight of the big message. I wish to
emphasize, however, that this ``bottom line'' is my personal conclusion
from the study--what I pick out as its most important lessons.
(1) The absence of a data base that tracks patterns of population
change and habitat alterations for threatened and endangered species is
a national embarrassment. Often these data exist somewhere--in a file
drawer, in researchers' notebooks, or scattered among several
publications. Yet in this age of computers and the interest, our data
bases and information on basic natural history of endangered species
are staggeringly primitive. Many of us are aware of how much national
or even state ``computerized criminal data bases'' have revolutionized
enforcement. The same should happen with resource management and
endangered species protection. Without such data bases we cannot know
where are the ``safe places'' and the ``dangerous places'' for our
endangered species. We need to be able to ``go on line'' and find out
what is happening with endangered species in terms of hard numbers--how
many individuals? where? how many acres of habitat? how much of the
remaining habitat exists in publicly owned lands? and so forth.
Investment in such a data base would be in the best interests of all
parties, so we can at least have access to the most current information
before we begin debating the possible consequences of future actions.
(2) We do not even have a national data base that tracks the
``paper'' administrative record of HCPs. In other words, one cannot get
on the internet and find a list of all HCPs that address a particular
species or the total acreage of land for a species that is covered by
the HCP process. Increasingly, HCPs are being placed online (a very
positive trend), but the sort of administrative data base that I feel
is needed will require a much larger effort to synthesize and update
information from many scattered sources in a format that will make the
information easy to access.
(3) In light of all this scientific uncertainty, if HCPs are to be
pursued in the interest of balancing development and the environment,
then minimally, HCPs should be required to include rigorous peer-
reviewed monitoring programs that allow us to learn from them.
Mr. Chairman. thank you for this opportunity to testify. I know the
HCP process is being seriously improved. In addition, I know from
personal experience that certain recent HCPs (after the publication of
our study) include state-of-the-art monitoring designs, backed up by
high quality research (e.g., the Pacific Lumber Headwaters HCP and its
monitoring program for marbled murrelets). Moreover, one reason I came
to work as a scientist for the Federal Government and especially for
NMFS is that it is easy to throw stones from an ivory tower and
criticize how the government does its resource management science (and
I have thrown some of those stones)--but I wanted to see if I could
make the science work any better before I continued to criticize the
job others were doing.
I look forward to answering any questions you may have.
______
Using Science in Habitat Conservation Plans
executive summary
The Endangered Species Act of 1973 (ESA) was established to save
species at risk of extinction and to protect the ecosystems upon which
they depend. Toward that aim, the ESA makes it unlawful for any person
to ``take'' a listed species. In 1982, the ESA was amended to authorize
incidental taking of endangered species by private landowners and other
non-Federal entities, provided they develop habitat conservation plans
(HCPs) that minimize and mitigate the taking. Since 1982, HCPs have
rapidly proliferated, leading in turn to widespread concern among
conservationists that these plans are not being prepared with adequate
scientific guidance. Critics have argued that scientific principles
must be better incorporated into the process of developing HCPs. In
response to these criticisms, we reviewed a set of approved habitat
conservation plans to evaluate the extent to which scientific data and
methods were used in developing and justifying them. The review was
conducted through a nationwide graduate seminar involving eight major
research universities, 106 students, and 13 faculty advisors. Our
analyses focused on the extent to which plans could be substantiated by
science. Thus, even if based on the best available data (the legal
requirement), a legally and politically justified plan could be deemed
scientifically inadequate because, by more stringent scientific
standards, the data were insufficient to support the actions outlined
in the plan.
A Systematic Effort to Collect Quantitative Data on Science in HCPs
This investigation proceeded along two lines. First, individuals
gathered data on 208 HCPs that had been approved by August 1997 in
order to obtain basic descriptive information about plans. Second, the
group conducted a more comprehensive analysis for a focal subset (43)
of these plans. The HCPs in the focal subset range widely in geographic
location, size, duration, methods, and approval dates. For this in-
depth investigation, we developed two separate data questionnaires: one
asked for information on the plans themselves, and the other focused on
listed species and their treatment within HCPs. These questionnaires
included information about what scientific data were available for use
in formulating the HCP, how existing data were used, and the rigor of
analysis used in each stage of the HCP process. As a whole, the
questions were designed to generate a detailed profile of each HCP and
to document the use (or lack thereof) of scientific data and tools.
Plans were not judged overall; rather, questionnaires focused on
different stages of the planning process, including the HCP's
assessment of (1) the status of the species; (2) the ``take'' of
species under the HCP; (3) the impact of the take on the species; (4)
the mitigation for the anticipated take; and (5) the biological
monitoring associated with the HCP. All of the data sheets, plan
descriptions, and other detailed results from this effort are available
on the NCEAS website:
http://www.nceas.ucsb.edu/projects/hcp/
Results
From our data on 208 HCPs, we were able to outline an overall
picture of HCPs across the landscape. These 208 HCPs involve permits
for incidental take of 73 endangered or threatened species. Of those
208, a great majority (82 percent) involve a single species, although
the profile is skewed by more than 70 plans involving the golden-
checked warbler (Dendroica chrysoparia) in Travis County, Texas. HCPs
occur in 13 states; the largest concentrations are in Texas, Florida,
and California. They range in size from only 0.17 ha (0.5 acre) of
habitat to 660,000 ha (1.6 million acres) of habitat. The duration of
plans also varies widely, from 7 months for a plan in Travis County,
Texas, to 100 years for the Murray Pacific Company's HCP in Washington.
HCPs do not appear to be getting larger, smaller, longer, or shorter
over time.
In our more comprehensive examination of the focal HCPs, we direct
much attention to what we call scientific adequacy. It is important to
note that an HCP would be labeled scientifically inadequate if
insufficient data were available to justify an action formally, even
though legally the plan might be defensible. HCPs and many other
provisions of the Endangered Species Act require only that decisions be
based on the best available data. Scientifically, however, to support a
claim we require data that when analyzed give some statistical
confidence of an assertion, and that confidence is often lacking in
applications of science to conservation biology because of a paucity of
data. For example, from a scientific perspective, the best data might
suggest a particular relationship between loss of habitat and loss of
individuals, but the data are so variable and scarce that one could
never have scientific confidence in the presumed relationship. Our aim
is not to change the law but to point out just how much science is
being used, and can be used given the availability of data pertinent to
HCP development. The conclusions we draw probably apply to many other
facets of Federal decisions regarding species listed as endangered or
threatened.
Status/Take/Impact
Because they involve take of endangered species, HCPs must include
information about the status of populations and habitats of the
species, an assessment of how many individuals and how much habitat
will be taken under the plan, and what impact that take will have on
the species overall. We found that, for most species (74 percent),
population sizes were known to be declining globally before the HCP was
submitted; 21 percent were stable, and 5 percent were increasing. The
most important threat to species was habitat loss, although habitat
degradation or fragmentation and direct human-caused mortality also
represented important threats. Notably, for only 56 percent of the
instances in which a listed species might be ``taken'' by an activity
was the predicted take quantitatively estimated. And only 25 percent
(23 of 97) of species treatments included both a quantitative estimate
of take and an adequate assessment of the impact of that take.
Mitigation
A crucial measure for the success of HCPs is the choice and
implementation of measures to avoid, minimize, and mitigate impacts on
the species included in the permit. If the appropriate measures are
chosen and implemented in a timely fashion, the impact on the species
in question might be effectively mitigated, justifying the issuance of
an incidental take permit. For this analysis, we chose to evaluate
avoidance, minimization, and mitigation measures as overall
``mitigation,'' because they all involve offsetting potential impacts
to species. Minimization and avoidance of the threatened species are by
far the most common mitigation measures (avoidance is proposed for 74
percent of species, and minimization for 83 percent). Our analyses
identify some important gaps in quality of data underlying mitigation
proposed in HCPs. Overall, particular mitigation measures commonly
suffered from an absence of data indicating they were likely to
succeed, leading to a situation in which ``unproven'' mitigation
measures were relied on in the HCPs. Given this uncertainty, one would
expect that a mitigation measure should be evaluated prior to the onset
of take. Unfortunately, such a precautionary approach was often
lacking.
Monitoring
We determined whether biological monitoring (i.e., ``effectiveness
monitoring'' or monitoring of trends in the populations that are
potentially affected) was included for the HCPs in our sample. In this
analysis, we looked at each plan as a sampling unit (n = 43), and we
only considered information included in the plan or associated
documents. For only 22 of the 43 plans was there a clearly outlined
monitoring program. Of those 22 well-described monitoring programs,
only 7 took the next step of indicating how the monitoring could be
used to evaluate the HCP's success. Interestingly, although most plans
do not include provisions for ``adaptive management,'' when plans do
include such provisions they are significantly more likely to include
clear monitoring plans as well.
Availability and Use of Information Needed for
Scientifically Based HCPs
In many cases, we found that crucial, yet basic, information on
species is unavailable for the preparers of HCPs. By crucial, we mean
information necessary to make determinations about status of the
species, the estimated take under the HCP, and the impact of that take
on the species. For example, in only one-third of the species
assessments was there enough information to evaluate what proportion of
the population would be affected by a proposed ``take.'' If we do not
know whether one-half or one-hundredth of a species' total population
is being affected by an action, it is hard to make scientifically
justified decisions.
We assessed the overall adequacy of scientific analysis at each
stage of the HCP process. Although this evaluation of scientific
adequacy amounted to a largely qualitative assessment, the foundations
of that assessment were well specified by series of background
questions; ``overall adequacy'' was consistently well predicted by data
obtained for these background questions. In general, the earlier stages
in HCP planning are the best documented and best analyzed. In
particular, species status is often well known and adequately analyzed,
whereas the progressive analyses needed to assess take, impact,
mitigation and monitoring are more poorly done or lacking. Our
evaluations also indicate that the very large and the very small HCPs
contain the poorest analysis. In terms of plan duration, it appears
that shorter-duration plans have better estimates of the amount of
take, but longer-duration plans have better analysis of the status of
the species and the mitigation measures imposed.
Conclusions and Recommendations
Although our analysis points to several shortcomings of HCPs, we
acknowledge that the HCP process is new, complex, and difficult. In
general, the USFWS and NMFS are doing a good job with the data that are
available. They do not have the resources to obtain the data that are
needed for many of the decisions that must be made. Without such
resources, the best scientific approach is to be more cautious in
making decisions and to use the findings of this report to justify
requests for additional resources.
Recommendations
1. We recommend that greater attention be given to explicit
scientific standards for HCPs, but that this be done in a flexible
manner that recognizes that all HCPs need not adhere to the same
standards as high impact HCPs. A formalized scheme might be adopted so
that small HCPs draw on data analyses from large HCPs, assuring that
applicants are not paralyzed by unrealistic demands.
2. For the preparation of individual HCPs, we recommend that those
with potentially large impact (those that are large in area or cover a
large portion of a species' range) include an explicit summary of
available data on covered species, including their distribution,
abundance, population trend, ecological requirements, and causes of
endangerment. HCPs should be more quantitative in stating their
biological goals and in predicting their likely impact on species. When
information important to the design of the HCP does not exist, it may
still be possible to estimate the uncertainties associated with the
impact, mitigation, and monitoring, and to still go forward, as long as
risks are acknowledged and minimized. Flexibility can be built into
mitigation plans so that managers can be responsive to the results of
the monitoring during the period of the HCP. When highly critical
information is missing, the agencies should be willing to withhold
permits until that information is obtained.
3. For the HCP process in general, we recommend that information
about listed species be maintained in accessible, centralized
locations, and that monitoring data be made accessible to others.
During the early stages of the design of potentially high-impact HCPs
and those that are likely to lack important information, we recommend
the establishment of a scientific advisory committee and increased use
of independent peer review (review by scientists specializing in
conservation biology). This policy should prevent premature agreements
with development interests that ignore critical science.
1. introduction
1.1. The Endangered Species Act in Relation to this Study
The Endangered Species Act of 1973 (ESA) was established to save
species at risk of extinction and to protect the ecosystems upon which
they depend. Toward that aim, the ESA makes it unlawful for any person
to ``take'' a listed species. This prohibition encompasses activities
that directly kill or harm listed species, as well as activities that
cause indirect harm through ``significant habitat modification or
degradation'' (50 CFR Sec. 17.3). In 1982, the ESA was amended to
authorize incidental taking of endangered species by landowners and
nonFederal entities, provided they developed habitat conservation plans
(HCPs) that minimize and mitigate the taking, and that receive approval
by the U.S. Fish and Wildlife Service (USFWS) or the National Marine
Fisheries Service (NMFS). Any nonFederal entity, whether a private
citizen, corporation, county, or state, can initiate an HCP. Once
approved, an HCP results in an incidental take permit. The language of
this amendment (Section 10a of the ESA--16 U.S.C. Sec. 1539(a)) arose
directly out of a model HCP designed to resolve a conflict between a
development project and the needs of endangered species in the San
Bruno Mountain area near San Francisco. Few landowners chose to
undertake HCPs until the early 1990's. The USFWS approved only 14 HCPs
from 1983 to 1992 (USFWS and NMFS, 1996), but since 1992 there has been
an explosion of HCPs--225 were approved by September 1997, and
approximately 200 are currently being formulated. Indeed, HCPs have
become one of the most prominent mechanisms employed by the USFWS to
address the problem of threatened and endangered species on private
lands (Bean et al., 1991; Noss et al., 1997; Hood, 1998).
The rapid proliferation of HCPs has led to widespread concern among
conservation advocates about the scientific information in these
documents. From a policy perspective, critics charge (1) that HCPs may
undermine species recovery because they can allow for impacts to
species that are not fully offset, (2) that HCPs are developed without
adequate biological information or scientific review, (3) that small-
scale HCPs can lead to piecemeal habitat destruction and fragmentation,
and (4) that meaningful public participation occurs infrequently
(Hosack et al., 1997; Kaiser, 1997; Kostyack, 1997; Murphy et al.,
1997; National Audubon Society, 1997; O'Connell and Johnson, 1997). Our
objectives in this study were to conduct a major review of HCPs and to
evaluate in detail the scientific merit of a substantial sample of HCPs
currently in effect. We did not attempt to evaluate the biological
success of HCPs or their attempt to balance economics with biology.
That exercise would have been premature given the newness of most HCPs.
Our emphasis is on scientific data and approach, whether they are
adequate, and if not, what should be done. To strengthen the role of
science in this process, we start with the premise that regardless of
the compromises that may be made between economics and environmental
concerns, HCPs should have clear scientific objectives, be based on the
best available data, and employ well-tested procedures. It is important
to emphasize that we scrutinized HCPs and their use of data and
inference from a strictly scientific (as opposed to legal) perspective.
We sought to determine whether a presumed impact, a proposed mitigation
measure, and so forth could be scientifically substantiated given the
data available. We adopted this strictly scientific stance because one
of the outcomes of our analysis is a series of recommendations for
improving the quality of scientific input; arriving at these
recommendations required that we keep a clear vision of the highest
possible scientific standards for HCP implementation. Although the
focus of this report is science, it is useful to keep in mind more
legal definitions of key terms such as ``take,'' ``compliance
monitoring,'' ``effects and effectiveness monitoring,'' etc. In Table 1
we define key legal terms and emphasize how our more biological use of
language differs from some of these legal definitions.
1.2. HCP Requirements
Applicants proposing HCPs must specify the impact that will result
from the incidental take of listed species, what the plan does to
minimize and mitigate the impact, and what alternatives were considered
(Table 2). NMFS is responsible for ultimately approving or rejecting
the HCP (issuing the ``incidental take permit'') for marine and
anadromous species, and USFWS is responsible for the remainder of
listed species. The applicant may develop an HCP independently, but
USFWS often works with the landowner in the plan's early stages,
providing guidance as to what is or is not acceptable with respect to
approval requirements. Typically, impact on species is minimized by
limiting the geographic extent of harmful activities or the seasons
when those activities are allowed (e.g., prohibiting timber harvest
during the nesting season of an endangered bird). Mitigation often
involves setting aside (through purchase or conservation easements)
habitat elsewhere. USFWS or NMFS can only issue an incidental take
permit if the HCP meets five criteria (Table 2). Incidental take
permits are only issued for species listed as threatened or endangered,
although for any unlisted species that is treated in the HCP as if it
were listed, the landowner is assured of receiving a permit for that
species when it becomes listed.
No set of particular actions must be specified in an HCP for it to
gain approval, and overall the process is quite flexible. There is,
however, standardized guidance in the form of the Habitat Conservation
Planning Handbook distributed by NMFS and USFWS (USFWS and NMFS, 1996).
The handbook gives general advice on all aspects of HCPs. It also
suggests expediting small-scale HCPs, while indicating directions in
which USFWS and NMFS wish to direct future HCPs, including habitat-
based, multi-species planning and large-scale, multi-landowner plans.
In addition, USFWS conducts training workshops across the country for
employees who help applicants develop and implement HCPs.
1.3. The Impetus and Aims of This Study
HCPs are not purely scientific documents--they are compromises
between the interests of resource development and conservation, and
political and economic concerns play a major role. Some HCPs represent
the outcome of negotiations that take years. HCPs have economic,
political, and scientific dimensions. Because HCPs represent negotiated
compromises, it is essential to know what exactly is ``given up'' in
the process of arriving at a compromise. It is easy to identify what is
given up from the viewpoint of a private landowner, because the dollar
value of future land development or exploitation is readily calculable.
It is much harder to quantify what is given up in terms of a species'
prospects for long-term survival. That is the challenge for the
scientific component of HCPs.
To examine the scientific component of HCPs, we decided to use a
highly structured, detail-driven approach to collecting information on
HCPs. To date, criticisms and recommendations about HCPs have
emphasized broad policy implications and have sketched general
qualitative attributes of particular HCPs (Hood, 1998; Noss et al.,
1998). We sought to develop a quantitative data base that sampled a
``population of HCPs,'' so that our analysis would be relevant to HCPs
in general, and not only to particular HCPs. This highly structured
quantitative analysis complements the more flexible analyses previously
published and, by uncovering broad trends within a substantial data
base, will set the stage for further analyses.
To examine the role of science in HCPs, the National Center for
Ecological Analysis and Synthesis (NCEAS) and the American Institute of
Biological Sciences (AIBS) initiated a 1-year project to analyze HCPs.
A set of graduate seminars at eight universities (Florida State
University; North Carolina State University; University of California,
Berkeley; University of California, Santa Barbara; University of
California, Santa Cruz; University of Virginia; University of
Washington; and Yale University) were coordinated during the fall of
1997. These seminars comprised a total working group of 119
researchers, including 106 students and 13 faculty members. The group
was charged with reviewing current plans to evaluate the extent to
which scientific data and methods were used in developing and
justifying the agreements. The group was also charged with recommending
ways to strengthen the role of science in conservation planning. The
group did not attempt to evaluate what effects the plans have had on
biological systems or species. Because the vast majority of HCPs have
been initiated since 1994, it is simply too early to evaluate whether
the plans are working. Moreover, our goal was not a vague judgment of
the overall quality of each plan or of the plans as a whole. Instead,
the group focused on the scientific data and reasoning supporting the
plans, paying particular attention to the key issues of take, impact,
mitigation, and monitoring. All of the data sheets, plan descriptions,
and other detailed results from this effort are available on the NCEAS
website: http://www.nceas.ucsb.edu/projects/hcp/
This paper is both our synthesis of the data available at this
website, and a reader's guide to the website. The scale of the data set
is large--89,908 entries were recorded for HCPs (7,246 for the set of
208 plans, 75,094 for species questions pertaining to the 43 focal
plans, and 7,568 for plan questions pertaining to the 43 focal plans).
Throughout the paper, when discussing data we use the following key: AQ
refers to questions applied to all 208 plans, SQ refers to species
questions applied to the 43 focal plans, and PQ refers to plan
questions applied to the 43 focal plans. The actual questions can be
found in Appendix I.
2. methods and rationale for data collection and analysis
2.1. Obtaining a Sample of HCPs for Descriptive Statistics
As part of our effort, we sought to characterize the largest
possible sample of plans in terms of their most basic attributes. Data
we attempted to identify for these plans included plan duration and
area, basic species information included in the plans, and other
factual descriptors of the agreements. Unfortunately, there is no
centralized office or collection of HCPs. We therefore took advantage
of the joint effort of the two nonprofit organizations, the National
Wildlife Federation (NWF) and the Earth Justice Legal Defense Fund
(EJLDF), to assemble HCPs in Washington, DC. As of November 1997, they
had compiled 208 of the 225 HCPs completed at that time. The
questionnaire applied to this sample of HCPs is given as Appendix I-C.
2.2. Detailed Data Collection for 43 Focal Plans
The time and energy required for careful evaluation of both an HCP
and the relevant background information precluded a detailed
investigation of all plans. We therefore selected 43 focal plans (21
percent of the all plans available at the time the project began) for
detailed analysis. Plans were chosen non-randomly, to span the range of
geography, size, duration, methods, and approval dates represented in
the entire population of HCPs (Appendix II-B lists these 43 plans).
For the focal plans we performed three types of data collection.
The first was accumulating evidence demonstrating the presence or
absence of several types of scientific information. For this segment of
our analysis, we chose a priori to define an ``HCP package'' as
including the HCP itself, the incidental take permit (ITP),
implementing agreement (IA), biological opinion, and any associated
environmental review documents (EA/EIR/EIS). These documents were
consulted for all focal plans for which they were available (some HCPs
might lack some of these documents). Information contained in these and
any other explicitly referenced documents was considered to be included
in the plan. Second, we gathered general data about the HCP setting and
the species covered by the associated incidental take permit. Many of
these data were found in the documents listed above, but to augment
them, corroborate conclusions made in the HCP documents, and provide a
comparison to existing scientific knowledge, we completed surveys of
relevant literature (which included both articles published in journals
and the so-called ``gray literature,'' represented by reports prepared
by government agencies and consulting firms). In gathering this
information, we considered all reports and publications available at
least 1 year before the date of the HCP's approval as having been
available for the HCP preparers. For 32 of the focal plans, we
collected species-specific data for all species covered on the
incidental take permit. For the other 11, we chose a taxonomically
representative subset of the species covered. Finally, we gathered
information about the local context and characteristics of the HCPs
that included data about plan developers/preparers and the policy or
social contexts in which plans were developed. Often, this profile was
developed from both anecdotal and formal discussions with USFWS
employees, consultants who worked on the development phase, and various
stakeholders.
Our goal in analyzing these focal plans was not judgment of the
overall quality of each plan, or plans as a whole, but rather a
rigorous analysis of a variety of detailed questions about HCPs: What
types of data or analysis do HCPs use well? What available information
is ignored? Are data unavailable that are crucial to sound planning? Of
the many steps in the planning for each species covered in an HCP,
which are usually done well and which poorly? Which of the many
features of a plan (size, duration, etc.) and of the plan's preparation
(who prepared it, was there a scientific advisory committee?) are
important in influencing its scientific adequacy? Answering these
questions requires ``dissecting'' each plan--gathering information on
its many factors and parts, so that statistical analysis can be used to
judge what factors significantly influence the scientific quality of
HCPs as a whole and to allow a clear assessment of the adequacy of
existing HCPs. To ensure consistency of information gathering across
groups, and to put the resulting data into an organized and analyzable
form, we developed two separate data questionnaires; one asked for
information on the plans themselves, whereas the other focused on
species listed in the incidental take permit and the treatment in HCPs
of these species (see website). In total, the Plan questionnaire
contained 176 questions/subquestions per plan studied, and the Species
questionnaire contained 789 questions/subquestions per species per plan
(these complete questionnaires are given as Appendices I-A and I-B).
The questions asked in the two questionnaires fall into three
categories:
For both plans and species, many questions seek to
detail simple (although not always simple to acquire) factual
information about the HCPs, the species, and the preparation
process.
Essentially all plan questions are of this type.
For species, a large number of questions address the
details of what scientific data and analyses were used in
formulating different steps in the planning process. Most
involved a set of four parallel questions, which for a broad
array of data categories asked (1) whether information of this
type was used in the HCP, (2) the source of the data, (3) the
quality of the use of this type of data, and (4) whether any
important data of this type were missing from the HCP. In
addition, there are questions about the importance of these
types of data for application to the species and situation at
hand. Together these questions seek to determine what data were
used in formulating the HCP, the quality of their use, and
their relative importance.
Finally, both for detailed types of biological
information and for larger steps in the HCP analysis process,
the species questionnaire asked for judgments of the quality of
the analysis.
Because the data included in the plan and species questionnaires
form the basis of our results, it is important to describe the approach
we took in designing and then analyzing these queries. As a whole, the
questions were designed to generate a detailed profile of each HCP, to
document the use (or lack thereof) of many different types of
scientific tools and data, and to characterize the availability of
these tools and data. The questions evolved over the first weeks of the
project, as online discussion led to the creation of new questions, the
deletion or modification of existing questions, and official
``consensus interpretation'' of ambiguous questions. We do not presume
that these questionnaires are comprehensive, but they were certainly
sufficient to generate a large body of data on our 43 sampled HCPs,
covering the full spectrum of HCP ingredients.
Three lines of reasoning led us to the final set of questions in
each questionnaire. First, we did not feel that it was either
scientifically justifiable or most productive to judge the adequacy of
entire plans, so we sought to confine our ``quality judgments'' to much
smaller segments of analysis. This approach should better reveal the
strengths and weaknesses of HCPs and suggest improvements in the HCP
process. Second, the battery of questions is large, both to minimize
the danger of missed information and to leave open the door to
unexpected findings or issues. Third, because it is difficult to make
scientifically defensible judgments about the quality or adequacy of
even small pieces of a plan, each question regarding adequacy follows
an extensive series of questions about the details of the information
and analysis that were used in the plan, that were left out, and that
would be needed to improve the analysis. Our goal was to lead ourselves
(and others reviewing our results) through a clearly articulated set of
steps that would clarify our judgments about importance and adequacy of
different types of information. It was impossible to write out a rigid
and explicit definition of ``adequate'' or a ranking score for each
question, because we were flexible in our scoring. For example, if an
HCP involved only a small amount of land and minimal take, we would
score a rather crude assessment of ``impact'' as adequate simply
because it was obvious there was no need to be especially careful for
such a negligible activity. In other words, as professional biologists,
we asked what level of scientific proof was required for different
activities, depending on those activities and their context. All
scorings and evaluations were presented to the local university seminar
group and thus were subject to internal peer review by up to 20 other
biologists. This review was an important part of the process. The
graduate students involved included many with masters degrees (about
one-third), some with extensive work experience in environmental
consulting or as employees of USFWS, and some who had actually helped
write HCPs. The biological, statistical, and practical experience of
this large cohort of graduate students compares favorably with those
employees of USFWS who actually administer the HCP process.
In sum, our approach of using detailed questionnaires to evaluate
HCPs was designed (1) to include unexpected but important information,
(2) to allow the dissection of plans so that clear judgments could be
made about their merits and faults, and (3) to make transparent the
reasons for our judgments of quality. Although inevitably imperfect,
our approach allows us to develop a detailed analysis of the
limitations and the strengths of HCPs. In particular, it takes the
analysis of HCPs away from the realm of unsubstantiated expert opinion
and into an empirically based arena where arguments over methods and
conclusions can be articulated, debated, and revisited.
2.3. A Framework for Judging the Biological Adequacy of HCPs
To be scientifically credible, HCPs must address a variety of
issues for each species covered. Although in theory our data set allows
us to address the scientific credibility of HCPs in their entirety, it
is more informative to clarify the particular stages in habitat
conservation planning where scientific knowledge or analysis may limit
the scientific foundation of HCPs. How should the integrated process of
HCP planning be dissected, however? Although there is no set of hard-
and-fast rules or steps to which all HCPs must conform, the USFWS/NMFS
HCP handbook mandates several issues that each HCP must address for
species covered in the incidental take permit (USFWS and NMFS, 1996).
Our review of HCPs, in combination with these mandated steps, led us to
divide the HCP planning and analysis process into five stages:
Analysis of current status of the species
Analysis of take under the planned activities
Analysis of the biological impact of the anticipated take.
Analysis and planning of mitigation for the anticipated
take.
Analysis and planning of monitoring activities to follow
the future status of the species, the actual take, and the
effectiveness of mitigation procedures.
It is important to emphasize that failure to address any one of
these stages adequately calls into question the adequacy of planning
for a species, even if all other stages are addressed extremely well.
For example, an HCP might have excellent data on the current status of
a species, have excellent estimates of take and the impact of take on
population health, and have a good monitoring plan, but if the proposed
mitigation procedures are untested and there are no plans to allow for
their review and modification, the plan is not scientifically credible.
Similarly, a seemingly reasonable plan can be formulated that has good
estimates of everything but the actual effect of the planned take on
the population viability of the species. In this case, again, the
entire plan is questionable, because there may be no good way to judge
the real impact of the planned activities and hence the adequacy of
planned mitigation work. These examples illustrate both that the
division of plans into five stages is somewhat artificial and that each
of these steps must somehow be addressed in an HCP for the whole plan
to be a scientifically credible blueprint for balancing potentially
damaging actions with potentially beneficial ones.
2.4. Units of Analysis
For the questions we address, two units of analysis are logical:
(i) the individual HCP and (ii) the treatment of an individual species
within an HCP. Plans are the basic unit in which HCPs are approved and
implemented, and many of the steps or issues in the HOP process are
inextricably part of an entire plan's formulation, but species
protection is the goal and mandate of the ESA and of the individual
plans. Similarly, although plans with many species will be over-
represented in a strictly species-by-species analysis, this is to some
extent as it should be. We therefore use a combination of approaches;
some analyses are done at the plan level and some at the species level.
When performing most significance tests for species-level analyses, we
either include plan as a factor in the analysis or use a weighting
factor that discounts the effect of a species by the number of analyzed
species from that plan (1/(number of species in the plan included in
our analysis)). One factor we do not consider in most of our analyses
is the occurrence of the same species in multiple plans; because each
plan analyzes different impacts in different places, it seems correct
to count each plan-species combination as a separate data point. We
also minimized the bias that could arise from making judgments on the
basis of a large number of ``minor species,'' when a plan was actually
written primarily for just one or two major species. It would be unfair
to call the scientific foundation of such a plan weak because it failed
to deal with the minor species but did a superb job with the major
species. We deal with this possible bias in two ways: (1) by choosing
as a subsample only a few species (and always only listed species) from
plans with long lists of species to be covered by the Incidental Take
Permit and (2) by rating a plan's overall adequacy with respect to
monitoring and so forth primarily on the basis of how well it applied
to the main species. For example the Washington Plum Creek plan covers
four listed species (grizzly bears, gray wolves, marbled murrelets, and
northern spotted owls) and 281 non-listed species (some of which were
candidate species and may be listed in the future). For this plan, we
examined only the four listed species, and, because this plan was
really tailored to northern spotted owls, we used the plan's
performance with respect to spotted owls as the major issue to be
evaluated.
3. checks on data representation and accuracy of analysis
With 89,908 entries in our data base and analyses conducted by
several different individuals and universities, there was obviously an
opportunity for errors to creep into our data. To offset this problem,
we enlisted the cooperation of the USFWS and sent them a preliminary
draft of the manuscript, the questionnaires, and all of the data. The
USFWS then coordinated a review of all of these materials. Importantly,
the data were sent to the USFWS regions that had originally approved
the HCPs of concern. After a heroic review process, the USFWS suggested
changes for 4367 data entries. We made 4328, or 99.1 percent, of their
requested changes. It is important to note the tremendous effort USFWS
put into examining our data base, and also to acknowledge that USFWS in
no way endorses or takes responsibility for our data or our
interpretations of the data. We simply point out that the raw data
themselves were reviewed internally by our own research group and
externally by USFWS. There still certainly remain errors, but we doubt
that the analyses we report would be substantially altered by the
errors in the data. For example, observation errors for field counts of
animals are often on the order of 10-40 percent, a magnitude of error
we are confident we were well below. All analyses, with one exception,
are performed on the corrected data, and the data on the website
represent the corrected data. The one exception is our analyses of
``school bias,'' in which we asked whether groups from the
participating universities answered questions differently. For that
analysis, we used the ``uncorrected data,'' because error rate is one
way in which the groups might differ.
For many of the analyses presented below, we use one of the two
questions that summarize the adequacy of each of the five stages of the
HOP process (see above). To assess whether they are valid measures of
scientific adequacy, we regressed the graded-scale (1-6) measures of
adequacy (see Appendix I-B) for each section on seven aggregate
variables indicating the knowledge about, and analysis of, various
categories of biological information about each species (see website
and Appendix I). We used both one-way regressions using just one set of
biologically distinct answers to detailed questions (e.g., data on
changes in numbers or demography) and multiple regressions using
combinations of variables. These multiple regressions usually had much
lower sample sizes than did the simpler analyses, due to many
combinations of missing values. All analyses were performed on
normalized variables. For each of the five stages, some types of
information or types of question (e.g., the presence of data versus the
type of analysis of the data) had little effect on quality rating,
whereas others were extremely good predictors. For each stage, the R\2\
values for the single best regression are Status, 0.66; Take, 0.92;
Impact, 0.59; Mitigation, 1.0; Monitoring (performed separately for
monitoring of take, status, and mitigation), 0.92, 0.91, 0.92. Overall,
the results from these analyses show that the summary rankings are well
predicted by the details of data and analysis used at each step of the
HCP process (see Tables 3 and 4, and Appendix III).
Because of the time and effort needed to find, read, and synthesize
the full background data for each of the 43 focal HCPs, each plan was
analyzed in depth by only one university. Because the participants at
different universities differed in background, and because of the
unique cultural differences among our groups (e.g., Yale versus U.C.
Berkeley versus N.C. State University), we were concerned to test that
the identity of the evaluating university did not substantially
influence plan evaluation. Two problems could arise from such
differences. One of these is loss of power to detect real differences
and effects in the plans due to added noise. The second and more
serious problem is systematic biases in the patterns we see among
plans. Furthermore, as noted above, we are often interested in
analyzing for species-level effects and must therefore account for the
correlation in species answers due to plan-level effects.
To check for university biases, we fit a set of mixed linear models
to species-level data using SAS PROC MIXED, which allowed us to assess
the effects of institution on the adequacy ratings in five major areas
(Status, SQ:B43; Take, SQ:C33; Impact, SQ:D47; Mitigation, SQ:E49; and
Monitoring, SQ:F80). We used these models to determine whether
universities differed with respect to ratings and whether these
differences affected the statistical significance of the relationship
of the five adequacy ratings to the factors Date, Duration, Multiple
Species (yes/no), Taxon, and Area. In the model, university and plan
were considered random factors, and Date, Duration, Multiple Species,
Taxon, and Area were considered fixed factors (Date, PQ: 181; Duration,
PQ: 178, Plan Species Number (from PQ: 11, coded for three levels),
Taxon SQ:A3; Area, PQ: 182; Existence of Recovery Plan, SQ:A8). The
results showed that only for Mitigation effects was the school to
school variation a sizable portion of the residual variation (Table 5).
In sum, these tests for university biases suggest that there are
generally not strong or consistent differences in the ratings of
different universities--certainly nothing of a magnitude that is likely
to influence our results or conclusions.
4. a descriptive overview of hcps
Before beginning our analysis of how science is used in HCPs, we
report the general characteristics and diversity of the HCPs in our
sample of 208. In particular, we summarize descriptive data about where
HCPs were implemented, who developed them, why they were developed, how
large an area they address, how long they last, what species they
address, and what approaches to habitat conservation planning are used.
Second, we describe these same characteristics for our intensively
studied sample of 43 focal HCPs and compare them to the larger set of
208 plans.
4.1. Attributes of Sample of 208 HCPs
More than 70 of the sample of 208 HCPs were coordinated and
approved within the Balcones Canyonlands Conservation Planning area in
Texas. Because these plans are very similar to one another and may bias
general patterns of HCP characteristics, we report two results whenever
appropriate: one based on data for all 208 plans and one excluding data
for the Balcones Canyonlands plans.
Any nonFederal entity can develop an HCP in support of an
incidental take permit application. Most HCPs (82 percent) were
submitted by single private landowners (either corporations or
individuals). Just 3 percent of HCPs were submitted by state and local
governments. Fourteen percent were developed for lands under multiple
jurisdictions (these could be public, private, or both); an example of
a multiple jurisdiction plan is the Orange County NCCP (see website
plan narratives). If the Balcones Canyonlands plans, which were
developed for numerous private landowners, are excluded, these
proportions change to 72 percent private, 5 percent public, and 22
percent multiple jurisdiction. The areas covered by HCPs can differ
dramatically--on an ``area basis,'' the figures are 14 percent private,
18 percent public, and 67 percent multiple jurisdiction.
HCPs are developed because some action is expected to take
threatened or endangered species and thus to have impact, which can be
either reversible or irreversible. Reversible impacts include those
that could be expected to diminish substantially in 100 years or less;
examples include the impacts of timber harvest rotations or livestock
grazing. Irreversible impacts are those that have a permanent effect on
species or their habitats, such as urbanization or land conversion.
Fourteen percent of HCPs will result in reversible impacts and 81
percent in irreversible impacts. Five percent will have both reversible
and irreversible impacts. When Balcones Canyonlands plans are excluded,
the proportions shift to 23 percent having reversible impacts, 69
percent having irreversible impacts, and 8 percent having both. Data
collected for the 43 focal HCPs allowed a more specific
characterization of land uses motivating HCPs. Within this smaller
dataset, the primary land use changes were specifically defined, e.g.
agriculture, logging, urban development. For each plan, various land
uses were ranked according to their importance in motivating that plan;
a ranking of 1 identified the land use change that was the primary
motivation for the HCP (PQ:42-49). Although plans may be motivated by
many different changes in land use, 56 percent of those we examined in
depth (24 of 43) were motivated by construction of buildings; logging
came in second at 19 percent (8 of 43).
We analyzed the duration and size distribution for HCPs using the
larger data set of 208 plans. Land areas covered are extraordinarily
diverse, spanning six orders of magnitude. The smallest approved plan
protects the Florida scrub jay (Aphelocoma coerulescens) on just 0.17
ha (0.4 acres). The largest plan to date covers over 660,000 ha (over
1.6 million acres) of forest managed by the state of Washington
Department of Natural Resources. Nevertheless, most HCPs are relatively
small. The median size is less than 10 ha (24 acres), and 74 percent of
HCPs cover fewer than 100 ha (240 acres). If Balcones Canyonlands HCPs
are excluded, the median size increases to about 44 ha (110 acres), and
59 percent of HCPs cover fewer than 100 ha (250 acres). For simplicity
and comparative purposes, HCPs were categorized as small (0-10 ha),
medium (>10-1000 ha), or large (>1000 ha). The largest proportion of
all HCPs falls in the small size category (50 percent). When the
Balcones Canyonlands plans are excluded, tile largest fraction falls in
the medium category (48 percent). No directional trend over time in the
mean size of HCPs is apparent. Regressions with and without Balcones
Canyonlands plans of log(area) of HCPs on year of approval yield slopes
not significantly different from zero (P >0.14 and P >0.07,
respectively). Some recently approved plans are larger than their
predecessors, but other recent plans are smaller, suggesting only that
the aerial extent of HCPs has diversified with time.
The length of time over which an HCP is to be implemented is
correlated with the duration of the ITP for which the plan was
developed. Plan durations are diverse, ranging from 7 months for a plan
in Travis County, Texas, to 100 years for HCPs implemented by the
Murray Pacific Company in Washington. Two plans developed for private
properties in Texas are to be maintained in perpetuity. Excluding those
two plans, the median duration of HCPs is 10 years, and 60 percent of
HCPs will be maintained for 20 or fewer years. Excluding the Balcones
Canyonlands plans, the median duration of HCPs increases to 22.5 years.
Over time, the durations of approved HCPs have diversified, but they
exhibit no significant directional trend. When Balcones Canyonlands
plans are excluded from analysis, a regression of plan durations on
approval dates suggests that more recent plans may be longer, but the
trend is not statistically significant (P >0.15).
Although no HCPs show directional trends in either duration or
area, these two characters are positively correlated with one another
(Figure 1). A regression of HCP duration on HCP area yielded a positive
relationship in which small HCPs tend to have shorter durations and
larger plans longer durations (P <0.001). Such a relationship seems
reasonable because a larger planning area may necessitate a longer
planning horizon.
The 208 HCPs examined cover 73 threatened and endangered animal
species: 22 birds, 13 mammals, 19 reptiles and amphibians, 18
invertebrates, and 1 fish (Table 6). Fifteen species of plants are also
covered under HCPs, even though the ESA does not mandate such
protection on non-Federal lands. The number of HCPs that cover various
threatened and endangered taxa are presented in Table 6. The majority
of HCPs (143) cover one or more bird species. Mammals and covered by 32
HCPs and amphibians and reptiles by 33.
Because HCPs can address conservation of single species, multiple
species, or habitats, the assessment of status, take, impact, and
mitigation measures vary accordingly. For single-species plans, they
are species specific. Multi-species plans are essentially scaled-up
versions of single-species plans. Assessments of status, take, and
impact are done for each covered species; mitigation measures may
address multiple species simultaneously but are still species-specific.
Habitat-based plans represent a distinctly different approach. They are
based on the premise that, by protecting the ecological integrity of a
natural habitat, one also protects the many species within that habitat
(USFWS and NMFS, 1996). Such plans de-emphasize species-specific
analyses and mitigation measures, focusing instead on more holistic
protection and management of the habitat. Most HCPs (84 percent) are
single-species plans. Multi-species plans make up 12 percent and
habitat-based plans only 4 percent. Excluding the Balcones Canyonlands
plans shifts these proportions to 74 percent single-species plans, 7
percent multi-species plans, and 19 percent habitat-based plans.
Habitat-based plans have only been developed since 1993, so their
prominence among HCPs is likely to change in the future. Certainly
there is increasing interest in assessing the quality of large habitat-
based plans because of their larger spatial scale and biological
breadth.
4.2. Attributes of 43 Focal Plans
The following subsections compare characteristics of the 43 focal
plans with those of the larger HCP population. We assert that the focal
plans adequately represent the diversity of HCPs, allowing a general
evaluation of how science is used in habitat conservation planning.
Time of Approval
When selecting focal HCPs, we biased our sample toward more recent
plans. These presumably reflect current approaches and strategies in
HCP development and are therefore more pertinent for the evaluation we
have undertaken. Ninety percent of the 43 focal plans were approved
after 1992, compared with 89 percent of the whole population of HCPs
(PQ:3).
Applicant Types
To sample a sufficient number of plans developed by state and local
governments and by multiple jurisdictions, we biased our selection of
focal HCPs with respect to this characteristic. Among the focal plans,
71 percent were developed by private entities, 10 percent by state or
local governments, and 19 percent for lands under multiple
jurisdictions (PQ:65).
Area
We selected focal plans non-randomly with respect to size to avoid
sampling bias due to the many small Balcones Canyonlands plans and to
achieve more balanced representation of different-sized plans. As a
consequence, the proportions categorized as small, medium, and large
differ from those observed in the larger HCP sample. Nineteen percent
of the plans selected were small, 40 percent were medium, and 42
percent were large (PQ:28).
Duration
Plan durations were categorized as short (up to 5 years), medium
(>5 to 20 years), and long (greater than 20 years). Twenty-three
percent of the plans selected were of short duration, 20 percent of
medium duration, and 58 percent of long duration (PQ:4 minus PQ:3).
Species
By selecting only 43 HCPs for intensive analysis, we necessarily
reduced the number of different species protected under these plans.
Nonetheless, 64 out of a possible 73 different listed species are
covered in our focal-plan subsample. Birds, mammals, reptiles and
amphibians, fish, and invertebrates were included.
Approach
The focal HCPs were chosen to represent the primary approaches to
habitat conservation planning: single-species plans, multispecies
plans, and habitat-based plans. Fifty-one percent of the focal HCPs
were single-species plans, 21 percent were multispecies plans, and 29
percent were habitat based plans. These proportions differ from those
for the larger HCP population in that multispecies and habitat-based
plans are over-represented. We intentionally sought an over
representation of these large multispecies plans because they represent
the major impacts in terms of total area and because there has been a
move toward increasingly favoring these types of plans (although small
single-species plans continue to play a role) (PQ:7 and PQ:8).
5. the use of available data for hcp planning
Before evaluating the five key components of HCPs (status, take,
impact, mitigation, and monitoring), we first discuss the more general
issue of data availability. In particular, we assess what data are
altogether lacking, what data are available but not used, and the
quality of analysis of available data.
5.1. Data Limitations
To assess data availability during HCP preparation, we first
documented the proportion of cases for which we were unable to
determine basic information on a species or effects of actions
authorized in the HCP on the species. These analyses provide a view of
how often scientists lack information on species for basic assessments.
Note that we did not restrict our search for this basic information to
the HCP or its supporting documents--we did a thorough literature
search that covered peer-reviewed publications and the ``gray
literature.'' We found that the basic information necessary to make
determinations about potential threats to species (SQ:A12-A21), the
status of a species or its habitat (SQ:B26-B42), and the type and
magnitude of take that will occur (SQ:C19-C28) were unavailable in many
cases. For example, we could not determine whether or not there
currently exists sufficient habitat to ensure a species' viability for
one quarter of the species-plan cases we examined. If we do not know
whether or not there is currently enough habitat to sustain a species,
it is hard to determine the impacts of future losses or alterations of
habitats. Lack of this kind of basic information can severely limit our
ability to make correct assessments regarding the effect of proposed
developments on a given species. Indeed, for only one-third of the
species are there enough data to determine what proportion of the
population will be affected by the proposed development. All of the
aforementioned data assessments were made for the literature up to 1
year prior to permit approval.
5.2. Unused, but Available, Information
To determine whether HCP preparers did not use important data that
were available, we reviewed all the information we could find that was
not in the HCP and judged the importance of this information for
assessment of status, take, impact, and mitigation strategies (QD
responses to SQ:B1-24, C7-18, D7-30 and E7-30). In gathering this
information, we considered all reports and publications that were
available at least 1 year prior to the date of the HCP's approval as
available for the HCP preparers. The majority of the information we
found was either cited in the HCPs or deemed not to be important to the
conclusions drawn in the HCP. Thus, our analysis showed that HCP
preparers do a good job of finding and citing relevant data; data
omissions were judged to be significant only 15-25 percent of the time
(Table 7). However, a few categories of data appear to be under-
researched in HCPs. Of particular concern is the omission of
information regarding cumulative impacts. For example, in 23 percent of
the cases, we concluded that plans neglected information on cumulative
impacts that would have altered the assessment of the impact of take.
Data omissions were also potentially serious in the development of
mitigation or minimization efforts (Table 7). Of particular note was
the omission of information about the amount and quality of habitat
with respect to feeding, breeding, and migration--these are key aspects
of habitat that will be central to any mitigation for habitat loss.
5.3. Analysis of Available Data
For each category of species-specific information we reviewed, we
evaluated the quality of the analysis and use of any data reported in
an HCP (QC responses to SQ:B 1-24, C7-18, D7-30, and E7-30). For
analyses of status, take and impact, we found that, when data were
available, the overall quality of their use was high (Table 8). Data on
population sizes and habitat availability were generally used well in
HCPs, whereas more detailed data on species or their interactions in
the environment were more unevenly applied and stood out for their
relatively low scores with respect to data use (Table 8). The most
significant finding in this analysis is the poor use of existing data
regarding extrinsic factors (such as anticipated human population
growth with likely future pressures on the species) and environmental
variability for designing mitigation strategies (Table 8). Information
about possible catastrophic events and environmental variability is
important when mitigation is designed, because such variability can
often undermine otherwise effective mitigation.
6. assessment of status, take and impact
6.1. Determining the Status of Species
Accurate determination of the status of endangered and threatened
species serves to justify procedures outlined in the HCP and provides
baseline data to be compared with similar estimates after development
has occurred. A fundamental aspect of a species' status is knowledge of
the critical threats to that species' viability. As part of our
evaluation of HCPs, we identified the primary threats to the 97
species-plan combinations (some species occur in several different
plans, so 64 species yield 97 combinations: Figure 2, SQ:A12-23) both
at the local scale (within boundaries of the HCP) and at the global
scale (over the range of the species). Overall, the most important
threat to species is habitat loss, which was cited as primary threat
for over 75 percent of the species, both locally and globally (Figure
2), followed by habitat degradation, habitat fragmentation, and direct
human-caused mortality. Other sources of declines for species covered
in HCPs include pollution, water diversion and/or damming, interactions
with invasive species, and changes in community composition (which
affect interactions with food, predator, parasite, and disease
species).
A second basic feature of species status is the estimated trend in
abundance or numbers of individuals in the populations in question,
both within the HCP area (SQ:B30) and globally (SQ:B31). For those
species where population trends were known, we compared the proportion
of species that were increasing, stable, or declining in numbers within
the HCP area and globally. For most of the species, population sizes
were known to be declining in the HCP area (57 percent total; 53
percent declining at a moderate rate and 4 percent declining so rapidly
that extinction is possible within the next 20 years). An intermediate
number of species were known to be stable (40 percent), and, for a
small fraction of the species included in HCPs, the populations were
increasing (2 percent) (Figure 3). Changes in populations for these
species at a global scale are similar to those observed within HCP
lands. Populations range-wide are declining for 74 percent of the
species, stable for 21 percent, and increasing for only 5 percent of
the species in our sample.
The status of populations of endangered species is highly dependent
on the maintenance of sufficient adequate habitat for the species.
Trends in habitat availability (Table 9) are similar to those observed
for populations: habitat availability is declining in the local HCP
area for 63 percent and is stable for 37 percent of the species in the
HCPs we reviewed. Habitat quantity is not increasing for any of the
species we evaluated (Table 9; SQ:B34). Globally, habitat is declining
for 88 percent of the species and stable for 12 percent and is not
increasing for any of the species in our HCP sample (SQ:B35). The
decline in habitat availability at larger scales underscores the
importance of populations within HCP areas for overall viability of
endangered species (Bean and Wilcove, 1997).
Most of the habitat remaining for species contained in the HCPs is
of ``medium'' quality (51 percent of habitat in HCP area and 70 percent
of habitat globally; Table 9; SQ:B28-29). We defined medium-quality
habitat as that able to support self-sustaining populations but not
able to produce an excess of individuals (i.e., not able to serve as
consistent ``source'' populations). Habitat quality within the HCP area
was generally rated of poorer quality than global habitat quality for
the species in our HCP sample. In particular, 40 percent of the
remaining habitat in HCP areas was deemed to be ``poor'' quality (i.e.,
not able to support isolated populations through time), whereas only 15
percent of habitat was determined to be poor globally.
6.2. Nature and Characterization of Take
Activities permitted in HCPs can result directly or indirectly in
death of individuals of an endangered species, commonly referred to as
``take'' (ESA, 1982). Take also includes any type of harassment or harm
to species and destruction or modification of a species' habitat
(USFWS, 1981). Take was predicted to occur for the majority of the
species-plan combinations we reviewed (73 percent; SQ:C25). For the
remaining species either take was not predicted to occur as a result of
HCP activities or not enough information was provided in the HCP to
reveal whether take would occur. In cases where it was explicitly
stated in the HCP that take would occur if the permit were approved,
the quantification of take varied tremendously among plans (SQ:C27).
Predicted take, in terms of the estimated number of individuals that
will be displaced or killed, is poorly estimated for most of the
species in our focal HCPs--in almost half of the cases (49 percent) no
data in the HCP or associated documents addressed the level of take
likely to result from the proposed development.
For each species evaluated in our 43 focal plans, we also asked
what percentage of the population on the HCP land would be taken as a
result of the proposed activities (SQ:C26). In a large proportion of
the cases (42 percent), the HCPs do not explicitly estimate this
figure. Among the plans in which take was estimated, the expected level
of take was most often ``all or nothing'' (Figure 4). In the majority
of cases either a small percentage (1 percent or less) or all (100
percent) of the population on the HCP land would be taken as a result
of the proposed activities; few predicted intermediate take levels.
Our data suggest that little emphasis is currently placed on
accurately estimating the consequences of proposed activities for the
species or population in the HCP area. A high percentage of the species
listed on incidental take permits have no quantitative estimate of
take, either as the total number of individuals lost or the percentage
of the affected population taken. In the cases where predicted take is
quantified, our data suggest that HCPs fall into two categories: the
plans either minimize take (resulting in many cases with low take
estimates) or they allow for removal of 100 percent of the affected
population.
6.3. Assessing Impacts of Development on Endangered Species
Impacts on populations in HCPs can be defined as the combined
effects of take and habitat modification on the viability of endangered
species. Because of its complex nature, quantifying impact is difficult
and requires not only accurate estimates of take but also an
understanding of the population dynamics, species requirements, and
demographic thresholds that apply in each individual case; these data
are often necessary to full understanding of the biological
consequences of proposed levels activities. We reviewed the types of
threats that were considered in HCPs (QE responses to SQ:D32-45) and
compared those to the categories of impact we deemed important for the
species given our knowledge of their biology and status (QG responses
to SQ:D32-44). We ranked all categories for each individual species-
plan combination on a four point scale ranging from 1 (not an important
impact) through 4 (a serious impact that will significantly affect the
population). We ranked area of habitat loss, percent habitat lost,
direct mortality, habitat fragmentation, cumulative impacts, and
altered interspecific interactions as the six most significant effects
for the species in our sample (Table 10). With the exception of
cumulative impacts, we generally found high concordance between our
rankings and the number of times that the same impact was considered in
the HCPs we reviewed.
7. mitigation and monitoring
7.1. Mitigation in Habitat Conservation Plans
A crucial feature of HCPs is the choice of mitigation procedures
aimed at minimizing the threats to species included in the incidental
take permit (see, e.g., gingham and Noon, 1997). In fact, this
minimization of impact is required by the ESA (1982) and clearly
outlined in the HCP Handbook (USFWS and NMFS, 1996). If the appropriate
mitigation is chosen and implemented in a timely fashion, the impact to
the species in question can be minimized to the maximum extent
practicable, thus justifying the issuance of an incidental take permit.
However, many scientists have criticized the mitigation plans proposed
in HCPs because they have often seemed arbitrary, based more on
political and economic constraints than empirical data on the species'
ecology, life history, and specific requirements (Beatley, 1994;
gingham and Noon, 1997; Buchanan et al.,1997). Given the importance of
mitigation for the success of HCPs, we focused our analyses on the
scientific basis of mitigation measures proposed. HCPs that include
more than one endangered species must mitigate for impact to all
species included in the take permit. Therefore, because of the species-
and plan-specific nature of mitigation measures, we considered each
species within a plan as our unit for analysis.
7.2. Types of Mitigation Most Commonly Used
We treated minimization of impacts (e.g., modifying construction
and/or development at the site to minimize changes to the species or
its environment) and avoidance of impact (e.g., working during the non-
breeding or inactive season) as categories of mitigation. Minimization
and avoidance were by far the most common mitigation measures proposed
(Figure 5; QH responses to SQ:E32-E42). Avoidance was proposed for 74
percent of species for which permits were issued, and minimization of
impact at site of development was proposed for 83 percent of species).
Most mitigation efforts for a specific endangered species involve a
combination of procedures. Thus, many of the less common mitigation
measures (such as land acquisition, translocation, habitat restoration,
etc.) are used in combination with strategies for minimization and
avoidance of impact on the threatened species. The high reliance on
avoidance and minimization is not surprising, as these are usually the
easiest and least costly procedures to implement.
7.3. Quality of Data Used in Determining Specific Mitigation Measures
The quality of data underlying particular mitigation measures
proposed for each species was evaluated on a 4-point scale (a
continuous quality index from 0, representing ``no data'' used to
support the chosen mitigation procedure and its reliability, to 3,
representing cases where data amply document that the proposed
mitigation procedure is likely to be effective; QJ responses to SQ:E32-
E42). On average, the quality of data used to justify mitigation
measures was relatively low (Figure 6); that is, all mitigation
procedures were based on data ranked as 2 or below in our quality index
(indicating that the data are, at most, moderately understood and
reliable). The mitigation measures based on the highest data quality
are conservation easements, land acquisition, avoidance, and
minimization. Other measures such as translocation often lack data
demonstrating the feasibility of the proposed actions. In general, HCPs
seem to rely more on mitigation measures with higher quality scores and
less on those with low scores (QI responses to SQ:E32-E42). However,
there are some exceptions; for example, when habitat banks (payment of
money into an account, which is then to be used to purchase land that
is supposedly ideal habitat for the species threatened by the proposed
activities) are used, they tend to be a major component of mitigation
programs, yet this mitigation approach has one of the lowest scores on
our data quality scale (Figure 6). Given the generally low quality of
data underlying many mitigation plans in HCPs, their success is not
assured and, if implemented as proposed, may be very close to a
``guess'' in terms of curbing the impacts on the species.
7.4. How Well Mitigation Plans Address Threats to Endangered Species
Judging the actual success of mitigation procedures would require
long-term information on the success of HCPs. Because very few plans
have been in place for more than 8 years, this is not an option. Hence
we must rely on current indicators that mitigation measures are likely
to be successful. For each of the species in our sample, we estimated
the likelihood of success by answering two questions. First, we asked
how often mitigation measures actually addressed the primary threat to
the species in question. Second, we asked to what extent the proposed
mitigation measures are likely to reduce the impacts of the primary
threats. Whereas the USFWS is required to adopt mitigation and
minimization measures that protect a species to the maximum extent
practicable, our focus was more on whether scientific evidence was
presented to substantiate that the best possible mitigation was being
adopted.
We found that, for the great majority of the species we examined,
the mitigation procedures addressed the primary threat to the species'
continued existence (85 percent; SQ:E44). However, the overall adequacy
with which proposed measures addressed the primary threats varied
tremendously among species (Table 11; SQ:E45). Overall, we found that
for only 57 percent of the species in the sample did mitigation
measures proposed in the HCP address the primary threat to the species
to a degree considered ``sufficient'' or better. In other words,
although HCPs most often identify the primary threat to the affected
species, only a little more than half of the time do mitigation plans
adequately address that threat.
7.5. Implementation of Mitigation Plans
An important determinant of the success of mitigation is the
adequate implementation of the proposed measures. For maximum success
rates of mitigation plans, it is important that the procedures be
implemented in a timely fashion and preferably before the population of
an endangered species is severely affected by activities proposed in
the HCP. We examined two factors that affect the implementation of
mitigation plans: funding for the measures and the timing of mitigation
efforts relative to ``take'' of the impacted species.
Mitigation can be one of the most expensive steps in the
development and execution of an HCP. Thus, it is important to determine
the cost of the proposed measures, the source of funding for
implementing mitigation, and the time period over which these funds are
available. Under law, the plan for funding all expected mitigation
measures should be outlined in the HCP; ideally the source of those
funds should be determined a priori and not as the impact occurs in the
course of development (we refer to the latter as a ``pay as you go''
funding program). We found that HCPs nearly always met these basic
expectations: 98 percent of the HCPs outlined a priori the funding
sources for the mitigation proposed (PQ:124), but only 77 percent had
significant funds set aside to pay for mitigation at the onset of the
HCP (PQ:125).
Another critical aspect of mitigation is the timing of proposed
measures relative to impact. It is important that mitigation measures
are started at the time of take or preferably before any take occurs,
thus increasing the probability that unsuccessful mitigation procedures
can be detected and corrected. In contrast, if most take occurs before
mitigation measures are put into effect, chances of adaptively
improving on failed mitigation efforts are reduced. We found that take
occurred before mitigation in a substantial number of cases (23 percent
of the species examined; PQ: 126).
7.6. The Clarity and Effectiveness of Monitoring Programs
The first question to ask about monitoring is simply whether or not
a clear monitoring program was outlined in the plan. We focused only on
effectiveness monitoring, as opposed to compliance monitoring (see
Table 1). An answer of ``no'' to this question does not necessarily
mean that no monitoring is going on for the pertinent species, but
rather that the text of the plan does not provide sufficient
information or sufficiently explicit information to document that
indeed a scientific monitoring program was part of the plan. Of course,
a ``no'' could also mean that there was absolutely no monitoring
whatsoever. For only 22 of the 43 plans was there a clear description
of a monitoring program (PQ:60). The next obvious question concerns the
effectiveness of those 22 clear monitoring programs we identified--in
other words is the monitoring program designed in such a way that it
would allow the success of the HCP to be evaluated? For this question
the attributes of monitoring required for ``evaluation of success''
depended on the particular plan and the threats being mitigated, and
they could involve factors such as number and location of sample sites,
frequency of sampling, and nature of data recorded. Again, a ``no''
does not imply that monitoring in the field is necessarily
insufficient, only that the information presented in the plan and
associated documents did not provide any confidence that the monitoring
could evaluate success. Under this interpretation, only 7 out of 43
plans had clear monitoring programs that were sufficient for evaluating
success (PQ:167). Because our criteria for answering ``yes'' to the
questions about clear and sufficient monitoring relied on what was
actually included in the documents, the reality may not be as gloomy as
the numbers above suggest. If the monitoring programs were consistently
a part of all HCPs, then HCPs on average would be better, and the
monitoring programs themselves would be more likely to be
scientifically supported because of their role in planning. We delved
deeper into the data to determine exactly what was missing with respect
to questions about particular species and whether any class of plans
seemed to stand out as having better than average treatment of
monitoring.
Monitoring can have more specific goals than evaluating a plan's
success. For example, monitoring could be implemented to estimate take
(SQ:F5) or population status (SQ:F31) or to evaluate mitigation success
(SQ:F57). Our more refined analysis of monitoring according to take,
status, and mitigation echoes the earlier conclusion about generally
poor monitoring. In particular, when broken up into the components of
``take, status, and impact of mitigation,'' monitoring was found to be
adequate for any component in 65 percent of the plans at most (Figure
7).
Adaptive management and monitoring are clearly interconnected
because adaptive management requires monitoring data with which to
evaluate the success of alternative management strategies. Although
most plans did not include provisions for adaptive management, those
that did were also significantly more likely to include clear
monitoring plans (cross analysis of PQ:60 and PQ:61). In particular, 88
percent of the plans with provisions for adaptive management had clear
monitoring plans, whereas less than 30 percent of the remainder had
clear monitoring plans (2 = 14.93, P = 0.001).
Many more detailed questions could be asked about monitoring, but
so few plans were judged to include clear or sufficient monitoring
programs, that sample sizes are small. Moreover, the major results are
clear with the most straightforward analyses:
1. Barely 50 percent of the plans contain clear monitoring
programs, and they rarely include monitoring programs that are both
clear and sufficient for evaluation of a plan's success.
2. The provision of adaptive management in plans was often
associated with clear monitoring programs.
Monitoring should be a key component of an HCP because there is no
way to evaluate the performance of an HCP without adequate monitoring.
Our data compellingly show that monitoring programs are often either
poorly described or nonexistent within the HCPs themselves and their
associated documents. It might be argued that this lack of description
does not matter as long as sufficient monitoring is implemented ``on
the ground'' in the real world, but if the HCPs fail to spell out the
details of monitoring programs, the adequacy of monitoring cannot be
scientifically evaluated.
8. general patterns and factors shaping science in hcps
Above we have presented analyses of each of five stages of HCP
planning (status, take, impact, mitigation, and monitoring). Here, we
investigate the interactions between stages of the HCP process and test
for patterns and principles that connect and synthesize the different
aspects of the HCP planning process. In particular, we focus on the
cumulative effects for HCP adequacy of several factors (e.g.,
differences between single-species and multiple-species HCPs) that are
likely to indicate trends in future HCP science. In this section, we
have for the most part used species as the sampling unit and used as
dependent variables answers to questions regarding the overall quality
of each stage of analysis (SQ:B42-43, C32-33, D46-47, E48-49, F79-80).
We first present results showing overall patterns in adequacy and then
discuss in more detail the importance of different aspects of species
biology and plan characteristics for the scientific rigor of HCPs.
8.1. Multivariate Analyses of ``Adequacy'' Rankings and Correlations
with Attributes of Plans
In general, the earlier stages in HCP planning are the best
documented and best analyzed (Figure 8). In particular, species status
is often well known and adequately analyzed, whereas the progressive
analyses needed to assess take and impact are more poorly done or
lacking; inadequate assessment of impact is especially common. We next
consider what factors may explain the range of adequacy seen across
different HCPs and different stages of analysis. Factors that we
considered in our analyses were those that seemed most likely to
influence the quality of HCP analysis, plus those that may indicate
whether changes in HCP formulation will have desirable results. For
example, both multispecies and large-area HCPs have been advocated, and
thus we asked whether the area covered by an HCP or the number of
species covered influenced the quality of biological analyses in HCPs.
In particular, we tested for the effects of the following seven
variables:
Area covered by the Incidental Take Permit (PQ:28)
Plan duration (PQ:4 minus PQ:3)
Existence of an approved recovery plan (SQ:A8).
Single-species vs. Multispecies Plan (PQ:7)
Habitat-based vs. Species-based Plan (PQ:8)
Taxon (SQ:A2)
Date of permit (PQ:A3, categorized as Early [1983-1994] or
Recent [1995-1997])
To test for effects of these variables on each of the five HCP
planning steps, we performed a series of MANOVAs using standardized
transformations of all variables. We first performed separate, one-way
MANOVAs using each of the above variables, with the five ratings of
analysis quality as dependent variables (SQ:B43, C33, D47, E49, F80).
Next, we performed two multiway MANOVAs. The first used all seven
independent variables; the second included only the five independent
variables with one or more significant or near-significant (P <0.20)
effects in the first analysis. We used this combination of one-way and
multiway analyses both because missing values considerably reduced the
sample size of tests using all variables and because, without large
sample sizes, multiway MANOVAs can provide only weak tests for effects.
Finally, we repeated this entire set of analyses using weightings to
account for unequal numbers of species per plan (weighting was by: 1/
(number of species in plan)). Table 12 presents the overall results
from these tests. In addition to these overall analyses, we also
conducted a variety of other tests and comparisons to elucidate the
effects of each factor on HCP quality. Below, we separately discuss HCP
adequacy in light of each of these causal factors.
8.2. Correlations Between Scientific Quality and Area or Duration of
Plans
The promotion of large-scale HCPs incorporating ``ecosystem
management'' by Secretary of the Interior Bruce Babbitt and the USFWS
is viewed by many biologists as a positive trend (Noss et al., 1997).
In addition, an increasing number of large-scale HCPs are region-wide
programs dealing with single focal species. Along with promulgation of
these very large-scale HCPs, there is also an effort to expedite the
development and approval of the smallest HCPs; the HCP Handbook (FWS
and NMFS, 1996) suggests both (1) that USFWS and NMFS encourage state
and local governments and private landowners to undertake regional HCPs
and (2) that ``low effect'' HCPs will be expedited and simplified as
much as possible. ``Low effect'' HCPs are usually of small area and are
defined as having minor or negligible effects on listed or candidate
species and on other environmental resources. There has been a great
proliferation of small HCPs, especially HCPs concerning the golden-
checked warbler in Travis County, Texas, which account for 36 percent
of all currently approved plans.
Our univariate analyses of overall adequacy provide some evidence
that the area covered by a plan is related to four aspects of species-
based planning--status, impact, mitigation, and monitoring (Figure 9)--
but the lack of significant results from multiway MANOVAs suggests that
these results are weak (Table 12). Looking toward the future, we
cautiously share the general view that larger scale HCPs should be
encouraged, but past HCPs lend no evidence that the largest HCPs will
necessarily be ``better'' scientifically.
Among our 43 sample HCPs, none permitted before 1995 exceeded 30
years duration; since 1995, a number of plans have been signed whose
duration exceeds 50 years. These increases in plan duration have
important implications for land-use planning by the permittee and for
the likelihood of plan success from a biological standpoint. Longer
plans may be advantageous for permit holders because they relieve the
threat of changes in regulations governing land use. Likewise, plans of
longer duration may be advantageous to species if they result in more
careful research, more flexibility in take activities, or greater
protection or enhancement of habitat. On the other hand, a 100-year HCP
that lacks provisions for adjustments in land use practices in the face
of declines in focal species could result in severe biological losses
with no regulatory means to avoid them.
Our MANOVA results suggest that HCP duration had contrasting
effects on the three stages of analysis--the analyses of status, take,
and monitoring (Table 12). For example, plans of longer durations were
characterized by higher quality status assessments, but lower quality
take assessments. These results indicate that the effects of plan
duration are complex--neither consistently increasing nor decreasing
the quality of science in support of the assessments.
8.3. The Existence of Recovery Plans and Scientific Adequacy
Under the Endangered Species Act (ESA), the Federal Government is
charged with drafting recovery plans for listed species. The
development of these plans entails the collection and collation of
detailed information related to the abundance, distribution, habitat
needs, and life history of a species, the identification of primary
threats to the species, and formulation of management prescriptions
that will result in the de-listing of the species. Although, for a
variety of reasons, recovery plans have not been established for most
listed species (Tear et al., 1993), it seems clear that recovery plans
ought to provide much of the information and management context needed
for the formulation of good HCPs. In particular, it has been argued
that recovery plans can provide a global context for activities
proposed under an HCP, particularly through assignment of critical
habitat needed for species recovery (USFWS and NMFS, 1996; National
Audubon Society, 1997).
Of the 97 treatments of species in our sample of HCPs, 59 had
recovery plans established prior to the development of the respective
HCPs. In some, the text describing these attributes of species closely
match the wording within the recovery plans themselves. Specific
mitigation techniques, such as the design and placement of artificial
nest boxes for red-cockaded woodpeckers (Picoides borealis) or the
translocation of Utah prairie dogs (Cynomys parvidens), were borrowed
directly from recovery plans in the development of HCPs. Discussions
with HCP applicants and USFWS officials confirm this impression.
Typically, when a recovery plan exists, it is used extensively by
applicants in developing an HCP.
However, in contrast to expectations, there was evidence that
adequacy of HCPs was negatively linked to the existence of a recovery
plan (Table 12; Figure 10). In fact, using our yes/no delineations of
adequacy, the trend was in the opposite direction for three of the five
steps of HCP analysis (Table 13); a species was more likely to have
adequate information included in its HCP if it did not have a recovery
plan.
We also asked whether there was a relationship between critical
habitat designation for a species and the quality of HCP analyses for
those species that did have recovery plans. As for recovery plans, we
found no evidence that adequacy of HCPs was positively linked to the
existence of a critical habitat designation (Table 13). Again, the
trend was in the opposite direction for each of five categories of
information collected from HCPs. On average, a species was more likely
to have adequate information included in its HCP if it did not have a
critical habitat designation.
8.4. Quality of Different Types of HCPs
Treatment of multiple species in the same HCP is appealing to both
landowners and the government because it can provide a single planning
process with which to address simultaneously all of the potential rare
species issues for an area. Furthermore, by obtaining incidental take
permits for many listed and currently unlisted species, multispecies
HCPs can provide far higher assurance to landowners that they will not
encounter future impediments to development plans. This assurance is an
especially important incentive to landowners in areas with high
densities of proposed and candidate species (e.g., California and
Florida). Increasing the number of species (from single species plans
to multispecies plans) tended to increase the quality of impact
assessment, but had no impact on all other assessments (Table 12). A
second way of including many species under the mantle of HCP planning
is through ``habitat-based'' HCPs. For example, the NCCP program in
southern California (see website for a narrative description of this
plan) takes this approach--species are grouped according to the habitat
communities they require, and planning relies in part on the assumption
that adequate protection for each species can be gained through
protection for each habitat type. In habitat-based plans, information
about habitat and fragmentation, and trends in those habitat
characteristics, is used as the primary indicator of species status.
Theoretically, information about habitat quality and quantity can be
related in a rigorous, scientific manner to population status for a
particular species, and in this way, habitat characteristics can
legitimately be used as a proxy for missing information on population
status. Overall, our MANOVAs show positive effects of habitat-based
planning on the scientific quality of HCPs (Table 12; Figure 11). For
example, one-way analyses and comparisons of yes/no adequacy rating
provide evidence of positive effects on status, take, and monitoring
assessment. Taken together, these results suggest that habitat-based
planning has not resulted in lower scientific quality in HCPs and may
in fact result in better, more scientifically defensible, planning
efforts.
8.5. Scientific Quality in Relation to Taxonomy and Date the HCP Was
Signed
Major taxonomic groups differed strongly in how well or poorly
planning was done, and also how these differences are manifested at
different planning stages. We divided the species covered in our HCPs
(except for the one fish species) into six taxonomic groups. Overall,
taxonomic group was strongly related to adequacy of planning (Table
12), and these differences are also evident at three of the five stages
of analysis: impact, mitigation, and monitoring (Table 12; Figure 12).
Surprisingly, taxonomically determined differences in adequacy ratings
seem to be much more easily explained by the difficulties posed by
biology than they are by the political profiles or universal appeal of
different groups. For example, plants had the most effective monitoring
programs, probably as a result of their sessile--and thus easily
studied--lifestyles. In contrast, mammals scored low with respect to
impact assessment, monitoring, and mitigation. This pattern is probably
due to the difficulty of obtaining good estimates of abundance,
population trends, and demography for such mobile and largely nocturnal
animals. Birds and herps (reptiles and amphibians) had intermediate
ratings for each of the steps of analysis (Figure 12).
The date of issuance of the incidental take permits for our 43
focal HCPs ranged from a single plan in 1983 (San Bruno Mountain, the
first HCP completed) to 25 plans in 1996-97. For several stages of
planning, and for overall quality, more recent plans are better than
older ones (Table 12). Perhaps the most biologically important aspect
of this improvement is in mitigation analysis; before 1995, only 10
percent of species covered included ``adequate'' analysis of
mitigation, whereas from 1995-1997, 59 percent of species were
adequately analyzed. Similar improvements have occurred in all other
steps of analysis, indicating that HCPs are--as their advocates have
claimed--becoming more rigorous scientific documents.
9. conceptual challenges to the quality of science in hcps
Many of the gaps in HCP science reflect an absence of basic
natural-history information, an absence of straightforward monitoring
protocols, or inadequate reporting of data, but the HCP process is also
challenged by subtler scientific issues, which are not easily remedied
by greater care and thoroughness. The three conceptual hurdles we found
to be most widespread were a failure to appreciate the potential
complexity of assessing impact, the neglect of occasionally pertinent
ecological theory, and violation of the precautionary principle in
habitat planning.
1. Take Is Not the Same as Impact
As a first approximation, ``impact'' is clearly proportional to
take, but simply reporting the number of individuals removed by an
activity does not estimate the impact of this take on a species'
viability or potential for recovery. At a minimum, there should be some
indication of what proportion of a population (locally and globally)
corresponds to a given take and of whether the take represents a loss
from part of the species range that is a major source of population
growth and vitality (as compared to a sink population, see Pulliam,
1988, and Wootton and Bell, 1992). In an ideal world one would perform
some sort of population viability analysis to assess the impact of take
on a population's viability, but data sufficient to conduct these
analyses are scarce, and the analyses themselves conjure up an entire
series of additional problems. However, for some cases involving well-
studied species and large areas of land that comprise major portions of
a species' range, some sort of viability analysis would be worthwhile
(and indeed some HCPs do include population viability analyses). A more
down-to-earth question would be to ask of any given take, what is lost
beyond simply numbers? Is a genetically unique subpopulation lost? Is a
substantial portion of genetic variability lost? Is a unique
combination of species and habitat lost? Preparers of HCPs cannot be
faulted for their limited assessments of take because the HCP handbook
gives very little guidance on this matter. This is an area where a
combination of population biologists and USFWS scientists could work
together to develop some more specific guidelines.
9.2. The Use of Quantitative Methods and Ecological Theory in HCPs
Ecologists and conservation biologists have developed a large body
of theory aimed at predicting impacts of management on populations and
species (Burgman et al., 1993; Meffe and Carroll, 1994). The
conservation literature abounds with suggestions that theory can lead
to sound management decisions. We sought both to test and to refine
this statement, using two related analyses. First, we determined the
extent to which HCPs used quantitative tools and ``theory'' to assess
impacts and mitigation strategies. We divided ``theory'' into ideas and
methods arising from six different subdisciplines: population genetics,
population ecology, behavioral and physiological ecology, island
biogeography, community ecology, and ecosystem ecology. As an example,
an HCP applying genetic theory might estimate inbreeding depression
resulting from reduced population sizes related to the planned take. In
the same HCP, the effect of take on a species might be estimated from a
population model incorporating the influence of habitat loss on
population size. We also determined the type of data used to bring a
theory to bear on impact or assessment and the quality or
appropriateness of the use of theory.
We found that most HCPs did not use theory to make assessments
about the impacts of take or to support mitigation strategies. Of the
97 species-plan examples we examined, the six different categories of
theory were applied to impact analysis between 8 and 44 times (for some
species more than one variety of theory was applied) and to mitigation
analysis between 8 and 50 times (Table 14; QB responses to SQ:D1-6 and
E1-6). Genetic theory was used least, and theory related to population
ecology was applied most often. When theory was used, it most often
took the form of a quantitative statistical analysis; such analyses
were clear and relevant about 60 percent of the time and inadequate in
the remaining cases. None of the HCPs we analyzed used more
sophisticated theories--quantitative models--to project the impacts of
take on populations. Such models were also used very infrequently (8
cases total) to project the success of mitigation and minimization
efforts. It is important to emphasize that we did not score HCPs as
inadequate simply because they failed to use theory. We remark on the
absence of theory in HCPs largely as a commentary on a major lack of
connection between academic conservation biology and conservation
practice.
9.3. Uncertainty and the Precautionary Principle
In many fields of environmental analysis, uncertainty is
increasingly recognized as the universal background against which all
decisionmaking takes place. This tenet and its consequences have become
known as ``the precautionary principle.'' This principle, long applied
in fields as diverse as engineering and economics, holds that in the
face of poor information or great uncertainty, managers should adopt
risk-averse practices. That is, management actions should be chosen
such that there is a correspondence between the uncertainty or lack of
information underlying the decision and the size of the potential
negative impact resulting from that decision. Adoption of these ideas
can be formal or informal. That none of the HCPs we reviewed made
explicit mention of the precautionary principle does not mean that the
writers and evaluators of these plans did not use risk-aversion
criteria in formulating HCP strategies. If HCPs adhere to the ideas of
the precautionary principle, we would expect to see four clear
patterns:
1. As available information becomes increasingly scarce or
uncertain, HCPs should be of shorter duration and/or cover a smaller
area.
2. As available information becomes increasingly scarce or
uncertain, HCPs should increasingly avoid impact or be restricted to
reversible impacts.
3. In all cases, but particularly when mitigation success or take
levels are highly uncertain, mitigation measures should be applied
before take is allowed.
4. HCPs should include contingencies based on the impact of take
and whether or not mitigation efforts succeed. Such contingencies can
only be applied in the context of adequate monitoring. Adaptive
management in HCPs would provide for various management alternatives
according to various future conditions.
One way of assessing the extent to which a precautionary approach
is adopted in HCPs is to contrast strategies of mitigation for cases
where data were judged to be sufficient and insufficient. For example,
if there are insufficient data regarding the impact of take, then one
might expect avoidance of take to be more commonly pursued than if
there are sufficient data regarding impact. This was not the case. In
fact, the precautionary approach of avoidance was either equally likely
or even less likely where data were insufficient than where they were
sufficient. Another precautionary approach is to minimize take, and
again this precautionary strategy was either equally likely or even
less likely to be pursued when data were lacking (Figure 13). Finally,
according to our rating scheme, the most precautionary scenario would
involve a mitigation approach that clearly minimized impact to the
maximum possible extent. It is worth noting that this line of reasoning
is not legally required of USFWS but rather is a more stringent
scientific standard for mitigation than current law dictates. We found
many HCPs that did pursue such a cautious approach, but it was no more
likely when data were insufficient than when data were adequate (Figure
13). In several HCPs, adaptive management is mentioned (even if not
clearly developed) as a component of the management scenario. One might
think these instances would be most likely where data were lacking.
Ironically, the opposite is true--plans for which the data regarding
mitigation reliability were judged insufficient were significantly less
likely to include a discussion of adaptive management than were plans
with adequate data: 45 percent of the 38 cases with insufficient data
(SQ:E48) included a discussion of adaptive management (PQ:61), whereas
77 percent of the 48 cases with adequate data did so
(2 = 9.5, P <0.05). In summary, although some HCPs
are reassuringly cautious, greater caution was not related to lack of
critical information about status, take, and impact. Thus, a
precautionary approach does not seem to be evident as a pattern among a
large sample of HCPs. Put another way, there is no evidence that the
quality of data regarding status, take, and impact influences the
approach to reducing impact adopted by HCPs.
10. recommendations
In this section, we outline scientific standards to which we think
HCPs should be held. Our standards identify specific attributes that
HCPs should have to be considered scientifically credible. We make
these recommendations based on a thorough review and analysis of
science in HCPs, but we also recognize that practical constraints may
make it difficult to meet these standards. In many cases the landowner
or contractor designs an HCP in the absence of critical data. The
information required to develop an HCP is often nonexistent. Because
this situation was common in the plans we reviewed, and it is likely to
recur, we also provide a set of practical recommendations for handling
a shortage of data or desired information scientifically. When data are
lacking, uncertainty is large and unavoidable. It then becomes
imperative that this uncertainty be explicitly acknowledged and
measured in some wav (even if only on a three-point scale of high,
medium, low). We conclude by offering general policy recommendations.
10.1. Standards for a Scientifically Based HCP
Ideally an HCP would be based on knowledge of the basic population
biology of all species covered in the incidental take permit, their
ecological requirements, and a quantitative estimate of the impact of
take on population viability. The plan would evaluate the cumulative
effects of multiple plans and activities on covered species, as well as
potential interactions among effects. Given limited resources and
information available during HCP development, these standards will be
difficult to achieve. Nevertheless, we need standards toward which
planners can strive and against which HCPs can be measured.
The foundation of any HCP, and its supporting documents, must be
data. Assertions such as ``take will be 54 animals'' do not constitute
data. Data must exist, be accessible, and be explicitly summarized in
the HCP in order to be scientifically credible. The absence of any of
these three ``ingredients'' precludes a scientifically based HCP.
Existence of the data is not sufficient; they must be included in the
HCP and available for analysis. It is still possible for scientists to
debate how best to use or interpret data, but there is no question that
the data must exist in the first place. Data standards should be
formalized: all large-area HCPs (or HCPs that cover a major portion of
a federally listed species' range) should include an inventory and
summary of available data on each covered species, including its
overall distribution, abundance, population trends, ecological
requirements, basic life history, and the nature of the causes of
endangerment. Smaller HCPs can simply point to other HCPs or readily
available data sources and inventories. All sources of data should be
formally documented. An explicit acknowledgment describing what data
are not available should also be included to allow a more accurate
assessment of uncertainty and risk in the planning process. In order to
provide more concrete suggestions, we consider status, take, impact,
mitigation, and monitoring separately.
Status
Adequate determination of status requires that data on
distribution, population trends, habitat needs and trends, and threats
be examined. The analysis should be both local (within the HCP) and
global (so that whatever is going on within an HCP can be put in a
biological context). Determining status requires knowledge of a
substantial amount of natural history--the threats to a species cannot
be identified without considerable knowledge of that species' natural
history. Similarly, population trends should be based on more than just
a few years of census information.
Take
Take can generally be assessed either by census of a population and
prediction of the portion that will be lost or by establishment of
relationships between habitat area (and quality) and expected number of
individuals contained within that habitat, which in turn allows one to
predict reductions in population due to reductions in habitat. An
explicit quantitative model should link the activity for which the HCP
is initiated to loss of individual organisms, if at all possible.
Impact
Impact does not equal take. This simple fact must be emphasized,
because it is neglected or overlooked in a large portion of existing
HCPs. Measurement of impact on population or species viability requires
data on population processes both within and outside of the HCP
(minimally the same data discussed for ``status''). If an HCP comprises
a large area and a substantial portion of a species' range, then some
attempt should be made at developing a ``model'' (explicit, but not
necessarily mathematical). This model should link take to key
population processes. For example, taking 40 percent of a global
population from a source population for the species' whole range is
very different from taking 40 percent of a global population from a
sink area. Similar arguments can be made for genetic and evolutionary
impacts. Careful thinking about impacts can alter how one goes about
summarizing take. For example, the types of individuals taken may be as
important as their numbers--the removal of young reproductive
individuals usually has the greatest impact on population growth and
recovery, so avoidance or preferential take of this age class will
profoundly influence the impact of the take. This possibility
demonstrates that the quantification of take must be conceptually
linked to insights about the population-level impacts of take.
Mitigation
The details of proposed mitigation measures must be explicitly
described and accompanied by data regarding their effectiveness.
Documenting effectiveness requires information on two levels. First
specific effectiveness of the proposed measure should be documented.
For example, if transplantation is proposed, what proportion of the
transplanted individuals survive to reproduce? Second, the more general
effectiveness of the mitigation measures in minimizing impact must be
analyzed, so the outcome of mitigation actions must be linked to
population processes of the target species.
Monitoring
Without adequate and appropriate monitoring, the success of plans
cannot be evaluated. The principal criterion for determining the
adequacy of monitoring should be the ability of a monitoring plan to
evaluate the success of mitigation measures and the consequent effect
on protected species. Monitoring frequencies, methods, and analyses
should be designed to permit appropriate modification of mitigation
measures in response to species status and should be explicitly
documented in the HCP. Monitoring data should be incorporated into
centralized data bases to facilitate access to information on the
overall status of species and to facilitate assessment of cumulative
impacts. Even if monitoring does not lead to rectifying mistakes in its
associated HCP, it can furnish information from which future HCPs can
be designed so that mistakes are not repeated.
Peer Review
Finally, HCPs should be open to peer review (review by scientists
specializing in conservation biology). Although HCPs are the property
and responsibility of the applicant, they concern protection of public
resources (endangered and threatened species). Thus, the data,
analyses, and interpretations made regarding status, take, impact,
mitigation, and monitoring should be reviewed to ensure that the
scientific foundations of the plans are sound. Peer review is already a
standard for science in other regulatory arenas and should be
incorporated into the HCP process. The need for peer review is not
universal; small HCPs without large irreversible impacts require less
scrutiny than large HCPs of long duration and broad ecological impacts.
10.2. Scientific Approaches to a Paucity of Data
The standards we have defined are difficult, if not impossible, to
achieve because of a current paucity of pertinent data, but HCPs are
not therefore fundamentally unscientific. They must simply use existing
data in a scientifically credible fashion. Before we discuss
recommended approaches to habitat conservation planning with data
shortages, we must address two more general issues about data.
First, when pertinent data are lacking, the top priority before
developing an HCP should be to acquire those data. How the data are
collected, and by whom, is an issue that will have to be resolved among
resource agencies such as USFWS and HCP developers, but there is no
surer way to garner scientific credibility than to use data. When
collection of all desirable data is not practicable, then the planning
process should proceed with caution commensurate with the anticipated
risks and uncertainties.
Second, when critical data are absent, an HCP should not be
initiated or approved. It would be wrong to call the HCP process
scientific, or even rational, if there were no option to halt the
process in the absence of crucial information. We need not have all the
desired data to produce an HCP--the planning process would be paralyzed
because data will always be determined to be insufficient. Rather, the
absence of crucial data for certain types of HCPs must be in principle
a possible reason for not allowing take until the problem has been
corrected. In general, the greater the impact of a plan, (e.g., plans
with high impact are those with irreversible impacts, covering a large
area or multiple--gaps in critical data should be tolerated.
Shortage of Data on Status
When data on status are few, we must err on the conservative side.
What must be avoided is the assertion of healthy status with few
supporting data.
Shortage of Data on Take
For small-area HCP's (which we assume will involve small takes) an
absence of data on take is acceptable, but for HCP's covering vast
expanses of land, take must be quantitatively assessed; if it is not,
the HCP process should not be entered into. This is a standard
principle of risk assessment--when the hazards are large, the
requirements for safety assurances become more severe. When take is not
the most pertinent quantity to estimate (as when something like water
quality for salmon is subtly degraded) but rather impacts are the
issue, a careful assessment of impacts can replace attention to precise
take numbers.
Shortage of Data on Impact
A scarcity of data on impacts of take can best be handled by best-
and worst-case scenarios. Even without quantitative data, biologists
can usually construct a worst-case scenario.
Shortage of Data on Mitigation
If no information validates mitigation as effective, then
assessment of mitigation should precede any take. In addition,
monitoring must be especially well designed in those cases where
mitigation is unproven.
Absence of Explicit Description of Monitoring
Careful monitoring is in some cases a solution to data shortage.
For example, when the effectiveness of mitigation is uncertain,
monitoring can determine that effectiveness, but only if it is well
designed (for example, as a before-and-after study of impact and
control). When data are few, explicit measures are needed for using the
information from monitoring to alter management procedures. That is, a
precise criterion for ``mitigation failure'' must be specified, as well
as procedures for adjusting management when that criterion is
recognized. The key point here is that the existence of monitoring is
not a solution to data shortage--a quantitative decision process must
link monitoring to adjustments in management.
Responding to Uncertainty
In addition to the specific recommendations given above with
respect to lack of data, there are general scientific principles for
dealing with a lack of information. First, the precautionary principle
argues that, in the face of poor information, risk-averse strategies
should be adopted. That is, when data are extremely poor, HCP's should
be limited to small areas or short duration. Scarce information
requires particular care about activities that are irreversible
(building a shopping mall as opposed to logging), and monitoring
becomes more crucial for assessing the well-being of threatened
species. Mitigation measures should be applied before take is allowed,
so that their effectiveness can be evaluated. Perhaps the simplest
approach would be to put in place scientific advisory panels for plans
that lack information and have both long durations and large impact
areas. This panel could advise on the development of the plan and its
implementation; scientists from recovery teams would be logical choices
as a starting point.
10.3. Policy Measures for Attaining More Effective Science in the HCP
Process
The goal of our analysis was to evaluate the role of science in the
HCP process. In this section we provide a set of recommendations for
improving its quality and effectiveness. We recognize that science is
not the primary motivation for HCPs and that they must address
multiple, often conflicting objectives. They have political, economic,
and social objectives as well as scientific ones. We also understand
that Section 10 of the Endangered Species Act does not prescribe any
scientific standard upon which the approval or disapproval of HCPs is
to be based. Section 7 requires only that decisions be based on the
``best scientific and commercial data available.'' While acknowledging
these dimensions, we have nonetheless chosen to focus our study on
evaluating how science is being used in the HCP process. Our assessment
leads to the following recommendations:
1. We recommend that greater attention be given to explicit
scientific standards for HCPs, but that this be done in a flexible
manner that recognizes that low impact HCPs need not adhere to the same
standards as high impact HCPs. A formalized scheme might be adopted so
that small HCPs draw on data analyses from large HCPs, assuring that
applicants are not paralyzed by unrealistic demands.
2. For the preparation of individual HCPs, we recommend that those
with potentially large impact (those that are large in area or cover a
large portion of a species' range) include an explicit summary of
available data on covered species, including their distribution,
abundance, population trend, ecological requirements, and causes of
endangerment. HCPs should be more quantitative in stating their
biological goals and in predicting their likely impact on listed
species. When information important to the design of the HCP does not
exist, it may still be possible to estimate the uncertainties
associated with impact, mitigation, and monitoring, and to still go
forward, as long as risks are acknowledged and minimized. Flexibility
can be built into mitigation plans so that managers can be responsive
to the results of monitoring during the period of the HCP. When highly
critical information is missing, the agencies should be willing to
withhold permits until that information is obtained.
3. For the HCP process in general, we recommend that information
about listed species be maintained in accessible, centralized
locations, and that monitoring data be made accessible to others.
During the early stages of the design of potentially high-impact HCPs
and those that are likely to lack important information, we recommend
the establishment of a scientific advisory committee and increased use
of independent peer review (review by scientists specializing in
conservation biology). This policy should prevent premature agreements
with development interests that ignore critical science.
To pursue these measures will require major agency initiatives or
policy alterations. First, the coordination of efforts to protect and
recover threatened and endangered species must be improved. This
coordination will be essential to the accurate estimation of the
cumulative impacts of various management efforts for threatened and
endangered species. The data pertaining to these management activities
(e.g., HCPs, recovery efforts on Federal land, safe-harbor agreements
on nonFederal land) should be organized into a single distributed data
base system. These data must be accessible to agency and academic
scientists for analysis and evaluation of the effectiveness of HCPs and
recovery efforts. Better coordination and accessibility of scientific
examinations of endangered species recovery does not require any
legislative change, but it would require a funding commitment to put a
centralized data base in place. Frankly, we think that centralized and
readily accessible data on endangered species could do for species
protection what centralized and accessible data on criminals and
outstanding warrants has done for public safety protection. Surely, if
we can do this for law enforcement, we can also do it for environmental
protection.
Second, both academic and agency scientists should become more
involved in the HCP process, for example through encouragement of peer
review and the establishment of advisory committees. Recovery plans are
currently peer-reviewed, and the culture to obtain such review already
exists in the pertinent government agencies.
Last, we encourage USFWS and NMFS to conduct their own review of
the HCP process from the perspective of identifying mechanisms for
making the job of their agency scientists more clearly defined. This
process could entail revision of the HCP handbook, pushes for better
data access, and institutional commitment to peer review. The HCP
process need not compromise the quality of its science just because it
must balance science and negotiation with development interests.
Clearly, it could sharpen the light cast by science if the guidelines
for scientific input were improved. Reference to data, peer review, and
significant adaptive management are too often absent from the HCP
process. To remedy these deficiencies will require more resources. The
USFWS is currently being asked to do too much with too few resources in
this HCP process.
acknowledgments
We thank NCEAS and the American Institute of Biological Sciences
(AIBS) for financial support of this project and the USFWS for a heroic
review of our data base under intense time pressure. Michael Bean and
Hilary Swain provided two rounds of comments and advice that were
invaluable. Jim Reichman and Frank Davis allowed (and even encouraged)
hordes of students to overrun NCEAS and out of chaos produce these data
syntheses. Most importantly, the staff at NCEAS (Marilyn Snowball,
Shari Staufenberg, John Gaffney, Kristan Lenehan, and Matt Jones) faced
the chaos of this project with good humor and provided enormous help at
all stages (travel, logistic support, and computers).
______
Statement of Dennis D. Murphy, Professor, University of Nevada
The science that is being used to inform decisions under the
Federal Endangered Species Act is a dynamic science. One would be hard-
pressed to find a more combative and constructive exchange in
conservation biology than that between supporters of the delisting of
grizzly bear populations in our northern Rocky Mountains and their
opponents. Both sides have mustered compelling technical arguments to
make their politically opposed cases. Our understanding of bears and
their biology has grown immensely around the debate. Likewise, both
science and stewardship techniques have contributed to saving the
California condor and black-footed ferret, and brought the peregrine
falcon and bald eagle back from the brink of extinction. Moreover, one
needs to look no further than to the Fish and Wildlife Service's
recovery plans for the desert tortoise and northern spotted owl to find
pathbreaking analysis and application of cutting edge concepts from
population biology. These examples suggest that science is at the
center of our efforts to save biodiversity.
But, are these examples the exception or the rule? When it comes to
science and the Endangered Species Act, unfortunately, they are the
exception. Most of the recovery plans for our listed species lack even
the most spare description of the mechanics by which endangered and
threatened species perpetuate themselves. By and large, we know
vanishingly little about our species at risk and how realistically we
might attempt to save them. While that state of affairs is lamentable,
it is not unexpected, since after all academic scientists are just now
developing the tools necessary to better understand the population
dynamics of species, and to predict with some accuracy their likely
fates. Pertinent to this hearing is another suite of species which we
may have lost the opportunity to save species that would have benefited
from good science.
Many species are on insidious or precipitous declines because the
agencies empowered to save them have not used available knowledge and,
frankly, common sense, to engineer conservation responses to clear and
present dangers. The unfortunate Houston toad provides a poignant
example. One of the earliest species listed under the 1973 Act, it has
continued its unbroken tumble toward disappearance for two and a half
decades. Application of reliable science might well have saved it. A
flawed hypothesis about the habitat factors that support the species, a
lack of responsive studies in the face of obvious declines, and poorly
designed monitoring schemes have combined with land development to push
the listed species toward extinction. The Houston toad, it appears,
will be lost.
The diminutive quino checkerspot butterfly offers a similar and
accelerated story. Back when the Houston toad was being conferred
protection under the Act, the checkerspot may have been the most
abundant butterfly in coastal Southern California. Within a decade
development, drought, and exotic plant invasions appeared to have
eliminated the species entirely. I petitioned the Fish and Wildlife
Service to list the species in 1988, but rather than respond with the
simples of science, basic surveys to confirm the butterfly's fate, the
agency failed to act. When amateur lepidopterists rediscovered the
butterfly 6 years later, a moratorium on new listings was on. Fully 9
years elapsed between petition and listing, and 11 years to a first
recovery team meeting. The quino checkerspot butterfly now survives in
less than 1 percent of its former range and is likely doomed. Any
science at this point may be too late to save the butterfly.
Against this background we assess science and Habitat Conservation
Plans. My guess is that my conclusion that we need more and better
science to produce more effective, efficient, and accountable HCPs is
shared by my academic colleagues. Where I may part view with some of
them, and certainly with many environmental organizations, is on how
much more science is necessary and how it can be achieved. I think we
can create much better HCPs with not much more science. The technical
information necessary to reduce the uncertainties associated with our
conservation prescriptions does not need to break the bank. But, the
gathering of that information must be focused, strategically directed,
and creatively engineered and exercised. Conservation scientists must
remember that HCPs support incidental take permits issued by the
resource agencies; they do not call for broad research agendas of the
sort supported by the National Science Foundation.
Why don't we have a clear science for habitat conservation plans?
To start, we in the academic scientific community have failed to
deliver the realistic, the parsimonious science that is necessary to
inform HCPs. The Departments of the Interior and Commerce, in their own
turn, have failed to seek such a science, responding in their HCP
guidelines that cookbook guidance is not possible since the biological
analyses demanded of each HCP for each listed species is unique and
cannot be codified. I like that idea--that the work in my field is so
special that only a specialist can do it. But that assessment just is
not true. Stephen's kangaroo rats, Tecopa pupfish, and indigo snakes
share a multitude of biological characteristics that allow for a common
theme to their conservation. A problem-solving template based on that
premise and using good science to craft reasonable conservation plans
is doable and overdue.
Just as soon as we are released from an artificial and utterly
unrealistic view of how much novel scientific information is necessary
to inform HCPs, we can begin to develop the exportable toolbox of
scientific techniques that are necessary to assist our best
conservation intentions. We first need to remind ourselves that science
in HCPs is not science in a traditional sense at all. In HCPs, we
rarely use hypothetico-deductive reasoning and experimental data to
differentiate among alternative explanations about how an HCP could or
should work. Instead, we normally use the sparest of data, often
gathered in uncontrolled circumstances, and subject it to our best
professional judgment. Scientific rigor in HCPs is not typically de
rigueur. And that's alright for the many HCPs of limited spatial
extent, and for HCPs with limited impact. When HCP impacts to species
and habitat are limited, a rigorous science often is unnecessary.
Tougher, of course, is planning where multiple imperiled species
distributed across extensive landscapes run head on into economic
immediacy--Interior Secretary Bruce Babbitt's environmental and
economic trainwrecks.In these circumstances, we need the very most
creative engagement of available scientific information. We must focus
on landscape-level and ecosystem processes; we must draw strong
inferences from basic principles--for instance, that bigger, well-
linked, and appropriately managed reserves are better than the options;
we must use inferential data from disparate sources, from other species
and other locations; we must develop management plans that can
ameliorate the inevitable mistakes we will make in up-front planning;
and we must share the lessons learned from the two hundred HCPs already
in action. Little of that is being done today. All of that can be
conveyed explicitly in regulations and guidelines, and should be.
I recommend that the National Research Council cooperate with the
Departments of the Interior and Commerce to develop science guidelines
for conserving multiple species and natural communities on lands both
public and private. Those guidelines must recognize that HCPs have
timetables driven by political and economic realities. Those guidelines
must recognize that indicator or surrogate species will have to be
identified which can allow simple insights from complex natural
systems. Those guidelines must encourage habitat conservation planners
to learn by doing, to manage adaptively using the best current
information.
To that point, we cannot delay our HCPs waiting for all the answers
to our pressing technical questions--frankly, the courts may not let
us. We can, however, engineer our plans to take advantage of emerging
information and scientific breakthroughs. I support adaptive
management, even though I am a fan of this administration's ``No
Surprises'' policy (which many contend conflicts with adaptive
management). Incorporating both adaptive management principles and ``No
Surprises'' assurances in to the language of a reauthorization bill
should be a bipartisan goal of this committee.
Parties that bargain in good faith, under Section 10(a) of the Act,
should not be held economically responsible when nature proves to be
more complicated than we could have expected. We, all of us, share in
the benefits from our national heritage when it is conserved and well
managed. The costs of those benefits should be similarly shared. Once
prime habitat for the California gnatcatcher is now under the Fish and
Wildlife Service parking lot in Carlsbad, California. Yet we expect
that nearly all of the burden of conserving that threatened species
should fall on the shoulders of neighboring landowners who wish for
economic development of their own properties. Clearly, science alone
cannot solve that dilemma.
I do not suggest that the greater public must pay the private
sector to obey the law, but an infusion of Federal dollars will
inevitably be necessary when reasonable exactions of habitat from
private landowners fall short of providing for the needs of species, or
when unforeseen circumstances put imperiled species at unexpected
additional risks. HCPs usually are the results of a crafted deal. They
allow a public concerned about threatened and endangered species to
take private property without fully compensating landowners.
Lubricating that process with strategically directed dollars will be
good for species, good for landowners, and good for the rest of us.
In conclusion to this brief statement, I contend that our Habitat
Conservation Plans are not as poorly informed as many environmentally
concerned citizens and organizations portray them. I also contend that
the costs of making HCPs significantly better informed may not be as
great as is feared by many others. Nonetheless, the tension between
Fifth Amendment guarantees to landowners and the statutory authority to
conserve species on private land is not likely to be remedied by a
better application of science alone. You all know that very well,
indeed.
HABITAT CONSERVATION PLANS
----------
WEDNESDAY, JULY 21, 1999
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and
Drinking Water,
Washington, DC.
The subcommittee met, pursuant to recess, at 9:30 a.m., in
room 406, Senate Dirksen Building, Hon. Michael D. Crapo
(chairman of the subcommittee) presiding.
Present: Senators Crapo, Lautenberg, Thomas, and Chafee [ex
officio].
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. The hearing will come to order.
Ladies and gentlemen, this is the second in a series of two
hearings that we are holding in the Subcommittee on Fisheries,
Wildlife, and Drinking Water on the science of habitat
conservation plans, with a focus on improving the Endangered
Species Act's tools for preserving habitat for endangered
species.
As I indicated, this is the second of two hearings that we
are holding on habitat conservation plans. We had a very
interesting set of testimony yesterday and a lot of interesting
information presented with regard to the science of habitat
conservation plans. Today we will be focusing a continuation of
those issues through some of the Federal officials and others
from interest groups in the private sector to obtain their
perspective on the utility of these plans and how they may be
improved in terms of our administration of them.
I don't intend to make a further opening statement. I would
turn now to our chairman, Senator Chafee.
Senator Chafee. Thank you very much, Mr. Chairman.
I have no opening statement. I think yesterday's hearing
was extremely interesting. I want to commend you again for what
you are doing. I think you've got some good witnesses today,
and I look forward to hearing them.
Thank you.
Senator Crapo. Thank you very much, Senator Chafee.
Senator Lautenberg, did you wish to make an opening
statement?
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Yes. And, Mr. Chairman, I commend you
for holding this hearing.
The importance of science in the habitat conservation plan
I think is a crucial factor, and, Mr. Chairman, I think what
you've done is present a reasonable approach to the problem,
and this analysis will, I think, help us satisfy as many
interested parties as we can.
I am, Mr. Chairman, for growth on a sensible, planned basis
because, in the final analysis, growth without protecting our
species, our environment, is a questionable asset, but I
believe that we can be both for growth and for the environment,
cleaner environment, protected environment at the same time. I
hope that we can arrive at a consensus within the committee.
At best, the habitat conservation plan is the ultimate pro-
growth, pro-environmental statement, and an HCP should ideally
give the landowner the certainty needed to develop land while
specifying measures that would allow endangered species to be
protected. The challenge is to turn this ideal into a reality.
While I salute the Administration for its willingness to
try new approaches, I am worried about the accelerated pace of
its work in the HCP area. HCPs are already approved for 11
million acres, approximately, of our country--an area larger
than my State of New Jersey--and there are plans pending for
another 20 million acres. I am particularly concerned that in
our haste we may leave sound science behind.
The No Surprises policy may not be creating enough
incentive using sound science to protect us as we develop these
HCPs. And, while I appreciate the scientific basis of the five-
point policy guide, I am concerned that it is not used
uniformly.
In this context, Mr. Chairman, I especially appreciate the
way you've framed this hearing. This is the hearing on the
science of the habitat conservation plan. Science should be our
focus here, just as it was in the critical habitat bill we
reported out of this committee, and focusing on the science
will be testimony to your continued success, Mr. Chairman.
I thank you.
Senator Crapo. Thank you very much, Senator.
Senator Thomas.
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Thank you, Mr. Chairman. I can't resist a
comment or two.
First of all, I am pleased that you are doing this. I think
there have to be some changes in the endangered species
operations. We talk about it a lot but, frankly, there haven't
been a lot. I think still we need to make some substantive
changes in the way it is done. We've had a long time to work at
it. We've found some things that don't work very well, but we
don't seem to change them. We've had a couple of experiences
recently in Wyoming that I think show the need for some change.
It seems that habitat conservation plans work fairly well
for large companies and timber companies. I'm not sure it has a
great impact on small landowners, but hopefully it can.
We talk a lot about science, and science is part of it,
but, we are not effective when we endlessly talk about science.
We went out some time ago to have a hearing on spotted owls,
and everybody brought their own scientist. They didn't sound as
if they had talked at all about what is common to them.
I think this is a good thing to think about, but we really
need to make some decisions with regard to habitat. We have to
make some decisions with regard to listing and de-listing. This
hearing is a portion of it, and I appreciate the fact that
you're doing this.
Thank you, Mr. Chairman.
Senator Crapo. Thank you very much, Senator Thomas.
There are no other Senators present for an opening
statement at this time, so we will begin with our first panel.
Our first panel consists of: The Honorable Donald J. Barry,
who is the Assistant Secretary for Fish, Wildlife, and Parks of
the Department of Interior; and Ms. Monica Medina, general
counsel for the National Oceanic and Atmospheric
Administration.
I think you both have testified many times. I'll just
remind you that we ask you to try to keep your testimony to 5
minutes.
Mr. Barry, why don't you begin?
Senator Thomas. Mr. Chairman, I wanted to welcome Don Barry
here. I have worked with him, particularly in the parks arena,
and he has been very cooperative and is always willing to talk
and work. I simply wanted to welcome him here and thank him for
his accessibility as Assistant Secretary. I appreciate it.
Senator Crapo. We do welcome you both.
Mr. Barry.
STATEMENT OF HON. DONALD J. BARRY, ASSISTANT SECRETARY FOR
FISH, WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR
Mr. Barry. With your permission, Mr. Chairman, what I would
like to do is just ask that my written statement be submitted
for the record and I'd like to make just some oral comments, if
I could.
Senator Crapo. Without objection, all witnesses present
should know that their full statements will be made a part of
the record.
Mr. Barry. Thank you very much.
Mr. Chairman, this is my 17th year in working on habitat
conservation plans, having been involved in the negotiation of
the very first one in 1982. It is safe to say that I have been
involved in virtually every phase of the habitat conservation
planning program over the last 17 years, from having worked on
the development of the original HCP implementation regulations
to the drafting of the No Surprises policy in 1994 to the
editing of the Fish and Wildlife Service and NMFS' handbook on
HCPs. I've also been involved in sort of the deal-closing side
of a number of major HCPs. So I have no excuse for suggesting
that I'm clueless about the HCP program.
I'd like to summarize my views. In fact, I could observe
that I can summarize my views on HCPs in one single sentence,
and that would be that the only things worse for endangered
species conservation than HCPs are all of the other
alternatives.
Secretary Babbitt and I both view HCPs as probably the
single-most important development for the conservation of
endangered and threatened species since the enactment of the
original Act, period.
I would like to just offer some general thoughts based on
yesterday's testimony.
First of all, I was personally pleased to learn that, by
and large, the scientists that testified yesterday were in
general support and agreement that the habitat conservation
planning program offers many benefits and opportunities for
endangered species conservation. I also was pleased to learn
that, as a general matter, they felt that the HCP process needs
to be viewed from or critiqued from the perspective of what is
practical, and that they generally agreed and concurred that
one cannot hold up the development of HCPs while one waits for
the perfection of science or the quest for better science.
There was a lot of discussion yesterday, it is my
understanding, about the need for a national data base on HCPs.
Actually, the Fish and Wildlife Service and the National Marine
Fisheries Service are now maintaining not only a hard copy
library of virtually every HCP and all of its related
documents, but also an electronic HCP data base on the
Service's internet-based ECOS program, which has numerous
fields of data. It is my understanding that a copy of the
printout that you can get from it is attached to my testimony.
The Service is currently in the process of dramatically
expanding the fields of data that would be available off of the
internet, and I've got a long list of areas that it is going to
be expanding into so that you would be able to sit down at your
terminal, pop up a list of all the HCPs, the amount of acres
per species that you're interested in. If you want to see red-
cockaded woodpecker HCPs, you'd be able to call it up and see
how many acres are involved, how many of them are large
industrial owners, how many are small landowners, and so on,
and the Service is in the process right now of field testing
and trial running that new data base that it's adding into the
eco-internet program.
So I think actually we are much further along, and it has
been based on the criticisms we've received in the past about
the need for this type of data base, but I would suggest that
we are well on the trail to solving that particular problem and
giving Congress and the environmental community and the
regulated community access to a tremendous amount of new
information.
I would also like to offer to this committee and to your
staffs, at your convenience, a demonstration of the new data
base process that the Fish and Wildlife Service is developing
on HCPs. I will just leave that as a standing invitation to the
committee, any of the members that are interested or any of the
staff members, to have the Fish and Wildlife Service and NMFS
come up and demonstrate the new HCP data base that they have to
show you what they can pull off of the web at this point and
what people have, in general.
I think there was also yesterday a fair amount of
discussion about the possible tension between No Surprises and
adaptive management. My own personal feeling is that the
tension is not anywhere near as pronounced as people think it
might be, and I would welcome a question or two on this
particular matter.
I think there was also a lot of discussion about the need
for a Federal pot of money to improve monitoring capability of
HCPs and to respond in emergency situations as part of our
commitment under No Surprises.
On the one churlish note of my testimony this morning, I
would reluctantly comment that the Fish and Wildlife Service in
their fiscal year 2000 budget request, which is currently in
front of the Senate, specifically asked for $10 million to
assist it in working on the implementation of HCPs and the
monitoring and development of HCPs, and to date we have gotten
none of that money from either the House or the Senate.
So here is an example of where the Fish and Wildlife
Service and the Administration listened to the criticisms that
we've received in the past about our inadequate resources for
being able to stay on top of HCPs and make sure they are being
implemented correctly, and when we put it in our budget request
Congress declines to fund it.
The Senate has not taken up our Department of Interior
appropriations bill in full, so, who knows, maybe there is good
news at the end of the trail, but to date we have been fairly
disappointed in the response of Congress.
Let me just close, because I know the red light has gone
on, which means I will be electrocuted momentarily----
Senator Lautenberg. That means you passed it. That's what
the red lights are for, if you go past it.
Mr. Barry. Let me just close by offering one of my favorite
somewhat off-colored quotes from Mo Udall, who once said that,
``When you go to bed with the Federal Government, you usually
get more than a good night's sleep.''
[Laughter.]
Mr. Barry. And I would have to say that that quote seems to
be particularly apt when applied to the habitat conservation
planning program and private landowners and their need to work
cooperatively and collaboratively with the Federal Government.
Our goal is to make sure that if they ``go to bed with the
Feds,'' they get more than a good night's sleep and feel that
they got a fair deal--a deal that not only works for
landowners, but also for endangered and threatened species.
Thank you very much.
Senator Crapo. Thank you very much, Mr. Barry.
Ms. Medina.
STATEMENT OF MONICA P. MEDINA, GENERAL COUNSEL, NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION
Ms. Medina. Thank you, Mr. Chairman.
My name is Monica Medina, and I am the general counsel of
NOAA, and I am pleased to be here today not only as a member of
the Administration but also as a former staff member to this
committee from 1993 to 1995, so it is good to be back in this
room.
NOAA is responsible for 52 listed species under the ESA,
including salmon, sea turtles, whales, dolphins, seals, and
other species. The breadth of our challenge in recovering these
species is great, so we cooperate with non-Federal landowners
such as States, tribes, counties, and private entities to do
this important job.
For instance, we have the challenge of ensuring the
survival and recovery of salmon across the geography that spans
the entire Pacific Coast, from Canada to Los Angeles. In
addition, the highly migratory nature of Pacific salmon places
them in many areas in numerous States, impacting large numbers
of stakeholders, many of whom are private citizens.
Long-term management of habitat such as that done through
HCPs with non-Federal landowners has proven to be an effective
means of recovering species. So far, our experience is new.
We've only issued two incidental take permits thus far
associated with an HCP. We're party to a few others with the
Fish and Wildlife Service, where we had previously unlisted
species, and we're working to turn those into full permits. But
we are currently negotiating approximately 35 additional HCPs,
all of which are large scale and concern the salmon.
We don't impose a one-size-fits-all prescription on
applicants when participants provide unusual but scientifically
credible analysis of effects or a creative approach. We are
very willing and will take their approach very seriously. We're
very willing to look at those efforts.
I think, as Don has talked about, flexible implementation
of the ESA is a hallmark of our Administration's efforts to
conserve species, and it is evidenced by our five-point plan
and just the way that we have gone about our approach. Adaptive
management, again, as Don mentioned, is an essential component
of HCPs when there is significant uncertainty. It is how we
close the gaps. It is how we make up for the things that we
aren't sure about right now. We plan for it in our HCPs.
As you well know, I'm sure, we are required to use the best
science in making our HCP permit decisions. Our scientists are
up to date in all of the latest methods, the state-of-the-art
analytical techniques, and we do our very best to understand
the species and the ecosystems to be managed in our HCPs.
For example, in development of aquatic management
components of a timber HCP, our biologists worked closely with
the applicant, but also with academic, State, tribal, and local
agency scientists to gather all of the relevant information
necessary to make a very comprehensive and credible HCP.
When necessary, we go out to the field and we augment our
existing information with actual field data. It's not simple to
manage ecosystems across large areas, and so we also welcome
scrutiny from the scientific community and the informed public,
as this helps to ensure that our HCPs are of the highest
quality.
We put every HCP out before the public for notice and
comment so that everyone can be aware of what we are doing, and
obviously we have these data bases now, and hopefully that will
improve our ability to get comments from the regulated
community as we go along.
I want to mention three specific HCPs that I think are
worthy of attention. The first one is a mid-Columbia HCP. It is
in draft now, but it is ready for public review and comment. It
is an example of how NOAA is using performance-based goals to--
instead of prescriptive measures in HCPs, the focus is on
improving the survival of salmon migration through the mid-
Columbia segment of the Columbia River, and the goal is a no-
net-impact to salmon from the hydroelectric dams associated
with the reservoirs operated by the two public utility
districts.
Compensation for a 9 percent unavoidable fish loss will be
met by a combination of hatchery production and tributary
restoration, and we also have extremely detailed schedules and
contingency agreements for every aspect of that HCP.
Also, I brought along with me a copy of the Washington DNR
HCP. It includes some innovative features designed to advance
the science of forestry and landscape conservation.
As you can see, these are not short documents. They are
very lengthy. They are very weighty. And they include all of
our scientific--all the scientific support for the conclusions
that we draw.
Finally, I want to mention that the Pacific lumber HCP,
which I know the committee is aware of, is well underway, and
that plan rests upon a foundation of watershed analysis that
will be used to tailor site-specific prescriptions.
I also want to close by saying that our efforts are only as
good as the amount of money we have to spend on them. In 1999,
our budget is expected to be $23 million, but only 8.3 of that
is being spent on science. Our 2000 budget request has an
additional $24.7 million for new funding to strengthen our
scientific capabilities in HCPs. Five million of that would be
used specifically to partner on HCP development with landowners
and other agencies in the local area.
In conclusion, I'd just like to say that the program is
showing a lot of benefits to us at NMFS, but it is still a work
in progress. We are trying our very best. HCPs are not perfect,
but they are less confrontational and adversarial than our
alternatives, which are enforcing the prohibitions of the take
under section 9 of the ESA. We're doing what we can to recover
salmon and hopefully ensure that future generations will know
of these magnificent fish.
Thank you very much for the opportunity to testify. I look
forward to your questions.
Senator Crapo. Thank you very much, Ms. Medina.
I'll begin with the questions.
The first question I have is for you, Mr. Barry.
If I understood you correctly, you indicated that you
didn't think there was necessarily a conflict between adaptive
management and the No Surprises policy. Would you like to
elaborate on that?
Mr. Barry. Sure.
The reason I say that is that, under the No Surprises
policy, what we basically say we are going to do is to lay all
of our cards on the table and to negotiate out all of the
possible adjustments up front with the particular landowner so
they can foresee the types and range of changes that could
occur should circumstances change during the life of the HCP
permit.
A good example of how that is different from the way we
used to do business is that probably the Fish and Wildlife
Service felt that they could arrive on the scene later in time
unilaterally and just sort of ambush or surprise the landowner
with the HCP and say, ``Well, we want you to change things now.
That was then, this is now.''
But we say what you're going to do now is to negotiate up
front with the landowner the range of changes that may be
required because of adaptive management requirements or changed
circumstances, and that way then before they even get the
permit and before they decide whether they want to continue,
they can economically net out the cost to them and decide
whether they are prepared to live with those types of
adjustments up front.
So we try to negotiate all of those terms and conditions up
front. We lay down the range of changes that might occur under
the agreement or during the life of the agreement. It is up to
the landowner then to decide whether they like what they hear
or whether they think they can live with what they hear, or
whether they want to say, ``Sorry, we are out of here. We can't
live with those terms.''
The other reason I don't see that type of huge tension
between No Surprises and adaptive management is because I think
No Surprises continues to get a bad rap--that somehow we are
putting these iron-clad handcuffs on the ability of the Federal
agencies and, for that matter, even the HCP permittee, to
respond to changed circumstances. I just don't believe that's
the case.
What the No Surprises policy says is that once we reach an
agreement with the landowner we're not going to go back and
change the economics of that agreement, but it doesn't say that
we're not going to go back at all.
I can use a good example. Let's say we've reached agreement
with a developer who is going to be building out a piece of
property over a period of time, and he agrees to have some type
of assessment on each house that will go into a conservation
fund. This is basically what we agreed to with the San Bruno
HCP, the very first HCP in California.
Let's say that we, at the time, assume that we know how
that money should be spent for a particular species, but over
time let's assume that the status of the species continues to
decline, and we believe that we need to make our conservation
programs more effective and more efficient for the conservation
of the species.
Without changing the amount of money the landowner has
committed to into that fund, we reserve the right, even under
No Surprises, to go back and change the way that money is
spent. If we think we can get a better bang for our buck, we
may shift the whole strategy from habitat restoration to
predator control. We may dramatically be able to squeeze
greater efficiency and effectiveness out of the conservation
program without changing a dollar on the table. So that would
be one example where I think that No Surprises has retained a
lot more discretion and flexibility than people think.
Our commitment to the landowner, to the permittee, is no
changes in the amount of money it is going to cost you and no
changes in the level of restrictions on the use of your
property, but if you are a timber company and you've already
agreed to set aside a certain acreage as a conservation zone,
we reserve the right, even under No Surprises, to go back in
that area that you've agreed to set aside to look for ways of
enhancing its management for species conservation, again as
long as it doesn't change your economic bottom line.
I think it is a combination of those two together. No
surprises is not as draconian as people think it is. And I also
think that we just try to negotiate up front the economic costs
and the range of change with the landowner through adaptive
management. For these reasons, I don't think there is a
pronounced level of tension between No Surprises and adaptive
management.
Senator Crapo. Thank you.
Ms. Medina, yesterday our panelists agreed that scientific
standards and guidelines associated with HCPs would
significantly improve the science of HCPs. Would such a set of
scientific standards and guidelines be useful, in your opinion?
Ms. Medina. I believe we already operate under those and we
are always trying to be consistent in the way we approach HCPs.
That doesn't mean our results are always the same, because
different landscapes have different uses. They've been altered
differently by humans or by nature. But we definitely try to be
consistent. Obviously, we're always looking for improvements,
and I think at our agency we are working within a matrix of
habitat conditions that we look at for every HCP in trying to
develop those HCPs.
Mr. Barry. Mr. Chairman, if I could just also add one
thought?
Senator Crapo. Mr. Barry.
Mr. Barry. I think it probably would enhance the efficiency
of the HCP negotiation process if there were generally agreed-
upon scientific guidelines for certain species.
A good example of that is the red-cockaded woodpecker. I
think there has been a general consensus among most of the
scientists as to what the red-cockaded woodpecker needs and
what its conservation strategy should be, so it is a lot faster
and lot easier to negotiate an agreement for one of those
species because there has been that convergence of the science
and we have some sort of off-the-shelf standards that we can
apply. So I think in that instance it could be helpful, as long
as we aren't finding ourselves stuck at the station and the
assumption is you can't do anything unless you've got that type
of consensus for a particular species.
Senator Crapo. Thank you.
Mr. Chairman.
Senator Chafee. If you have further questions you wanted to
ask, I'll wait.
Senator Crapo. I have a whole bunch.
Senator Chafee. OK. Thank you, Mr. Chairman.
We have been focusing a great deal of time on this hearing
on a recent study of HCPs that was authored by Dr. Peter
Kareiva, who testified yesterday, and I understand that Fish
and Wildlife has reviewed Dr. Kareiva's report and has posted a
brief response on your web page.
What are your views of the Kareiva study?
Mr. Barry. Let me first start off by saying that we truly
welcome the critiques and reviews of the HCP program that have
been conducted over the last few years. I think the recent
five-point plan that we developed to further improve the HCP
program was a direct result of a lot of the feedback that we've
gotten from people over the years.
So, in terms of the study, we are glad that it was done. I
have to tell you, in all honesty, that we had some fairly
significant concerns about the quality of some of the
conclusions reached in that study, and all you need to do is
take a look at how Plum Creek was rated under that study to
understand what the problems were.
Basically, they asked about 106 graduate students, who, of
course, are carrying full loads, to become instant experts on
the Endangered Species Act and HCPs and to be able to wade
through the massive documents that you can get for an HCP.
If you take a look at what happened with Plum Creek,
though, you can see what some of the problems are with this
type of study.
Plum Creek was rated fairly poorly on its science and it
was accused of having no peer-reviewed science. That's just
flat-out wrong. They had 13 peer-reviewed scientific papers
that were the basis for that HCP. How did the person miss that?
I don't know. But the graduate student that was reviewing it
missed the boat on that one.
Let me read to you some of the other documents that were
skipped over in the Plum Creek HCP.
They didn't take a look at the Environmental Impact
Statement, the biological opinion for the HCP permit, the NEPA
document Record of Decision, the set of findings, the unlisted
species assessment, and, as I said, these 13 peer-reviewed
papers.
I can provide another example of how they were a little bit
thin on their analysis. A person on my staff talked to the
chief staff person the Fish and Wildlife Service had working on
this agreement for many, many years. He said he was asked two
questions by the graduate student and that was it. The person
called him up, showed up in his office or talked to him on the
phone. Two questions. That's it. Thank you very much. And that
was the level of analysis that went into the Plum Creek HCP
permit assessment.
I know you have Lorin Hicks from Plum Creek on as a witness
a little bit later. I wanted to suggest that even a study that
attempts to be as ambitious as AIBS was flaws and limitations.
And so I guess the only message is that I think Congress
needs to take with a grain of salt some of the conclusions that
are reached that attack the quality of the HCPs that have been
done.
I would not agree that they have been of poor quality. I
think they clearly have been continually getting better, but
that doesn't mean that the ones that we were doing before were
poor.
Senator Chafee. Let me--I don't have much time here, so--
now, the no-surprise policy was an administrative policy that
has been set forth. It is my understanding that has been
challenged; is that correct?
Mr. Barry. That's correct. We have a lawsuit right now on
that.
Senator Chafee. And so where do things stand? There's a
challenge to it and it hasn't been heard yet?
Mr. Barry. We were heading toward the usual dueling briefs
being filed by the Government and the environmental plaintiffs.
There was just recently another hearing on the matter. Things
have been put off now until November. There has been additional
briefing requested, and so it is going to be probably in
November some time before everybody gets back in court.
Senator Chafee. Now, I would think that you'd like us to
pass a statute that included some of these protections,
including the No Surprises policy. I assume that; is that
correct?
Mr. Barry. Mr. Chairman, that was one of the primary
reasons that we were very supportive of S. 1180 coming out of
your committee 2 years ago. One of the major parts of that bill
was the congressional ratification of all of the administrative
ESA reforms that we've implemented in the last few years,
including No Surprises.
Senator Chafee. Well, I think I agree with you, and I, of
course, obviously knew that we had that in that legislation a
year or so ago, but I think this No Surprises policy make a lot
of sense.
Mr. Chairman, I hope that we can do something to protect
the Department; otherwise, in the suit they are liable to get
blown away. I think that the No Surprises policy is really an
essential part of the whole HCP program.
Mr. Barry. Mr. Chairman, I'm assuming that your reference
to being blown away is not a characterization on your part of
the poor legal arguments we have to muster on behalf of the
defense of this fine policy.
Senator Chafee. Well, I'm not predicting who is going to
prevail, but----
Mr. Barry. It would be nice to have certainty.
Senator Chafee [continuing]. It would be nice to have
certainty. Absolutely. Thank you. Thank you very much, Mr.
Chairman.
Senator Crapo. Thank you, Mr. Chairman.
Senator Lautenberg.
Senator Lautenberg. Thanks, Mr. Chairman.
I thank each of you for your excellent testimony.
The No Surprises policy brings some surprises to me, and I
just want to make sure that I understand it.
Does it say that if the plan isn't working that there is no
risk at all to the landowner? I know what we are trying to do
is provide some sense of reliability to plans that the
landowner makes, but have we removed any incentives from the
landowner for them to enforce the plan or--what kind of
supervision do we have that says that, ``OK, the landowner is
doing what they have to, but we've made a mistake in the plan
and now we have to change it?'' You made reference to it a
little bit earlier, but I wondered if you'd expand on that,
please.
Mr. Barry. Well, first of all, it is tied back to our
budget. Our ability to monitor the implementation of these
plans has two components to it. No. 1 is: Is the permittee
doing what he said he'd do? And, No. 2: Are we getting the
conservation benefits that we thought we'd get?
Senator Lautenberg. Right.
Mr. Barry. You know, we're struggling to be able to keep
pace with all of those plans that we're negotiating, which is
why we felt it was fair to note this in our budget request.
But I have to tell you again why I think that No Surprises
really has put us on a whole different level in dealing with
private landowners, and I would use Toby Murray as an example.
Toby is the head of the Murray Pacific Timber Company, a
private, family owned company, 50,000 acres, roughly. For Toby,
he first had negotiated a spotted owl HCP and then eventually
went back and upgraded it to a multi-species HCP, but for him
the big tradeoff was No Surprises. He felt for the first time
he was being treated fairly and he was being treated
respectfully by the Government.
I have absolutely no doubt in my mind that if we had
endangered species problems that arose unexpectedly on Murray
Pacific's property, Toby would welcome us in, we'd sit down
with him, and we'd work through these things, not because we
could wave our regulatory swagger stick in his face and say,
you know, ``If you don't do this, we are going to punish you,''
but I think because Toby just felt that he now is being treated
differently and he is being treated respectfully as a property
owner who is viewed as a conservation partner, and I just have
this confidence that Toby will do that. Because he feels that
No Surprises gave him a recognition that we see a need for a
fair balance between economics and conservation, he's willing
to work with us to make sure that we can constantly make those
adjustments to achieve that.
Senator Lautenberg. Well, is there a guarantee or
representation that for the landowner, should change be
required, that they will have no further economic demands put
upon them?
Mr. Barry. That's basically the No Surprises commitment, in
a nutshell. We say we will not go back and ask for more money
or more restrictions on the use of your property, your water
rights, whatever it was that was otherwise agreed to to be
available for use under the terms of the agreement.
Senator Lautenberg. And how then do we correct a mistake if
one is made?
Mr. Barry. Well, as I said, within the agreement they will
have agreed to do certain things. There is a certain cost
associated with the conservation package they've already
developed. We reserve the right to go back in and look for ways
of making that more efficient, adjusting that, as long as it is
not going to cost them more money.
If they already in their own mind have netted it out and it
is going to cost them $100,000 a year for endangered species
compliance, and we come back in and say, ``Look, we can turn
this thing around if we just start working on depredation
control instead of habitat restoration, and it is not going to
cost you an extra dollar,'' we've reserved the right to do that
so we can make adjustments in the program.
The other thing we can do----
Senator Lautenberg. Who pays costs that might arise as a
result of that?
Mr. Barry. Well, again, we are saying it is not going to
cost him or her anything more. We would have to work within the
revenue stream that they've already agreed to.
But there are a lot of other things that we can do,
ourselves. The Fish and Wildlife Service has--I mean, not
unlimited resources, but we have millions of dollars that we
are putting into endangered or threatened species conservation
programs. We can make adjustments in our own programs. We can
look for ways of getting other landowners who are in the same
area who have the same problem to work with us to achieve a
different conservation direction. We can see if Federal
agencies can help contribute in a different way.
I am personally unable to think of a scenario where we
would basically be clueless and helpless and would watch the
species go down the tubes because of No Surprises.
Senator Lautenberg. So we'll pay for the mistakes if any
are made--we, the Government, the taxpayers of the country,
we'll pay for it?
Mr. Barry. Well, we're involved in endangered species
conservation activities day in and day out right now, and I
guess the big difference, Senator, between----
Senator Lautenberg. I support a No Surprises policy.
Mr. Barry. Yes.
Senator Lautenberg. If there is an error and the plan
doesn't work, my----
Mr. Barry. We are prepared----
Senator Lautenberg [continuing]. My question is: Who pays
to revise or----
Mr. Barry. At that particular point, we're prepared to
carry the load.
Senator Lautenberg. OK.
Mr. Chairman, if I might, just one other question.
The Service has recently published a decision that says if
activities are causing a problem, jeopardy to an endangered
species, the HCP has to be reopened, renegotiated. Does the
Service plan to retroactively apply that kind of review?
Mr. Barry. Well, what you're referring to are some
adjustments that we made in what are known as the ``part 13
regulations'' in the Fish and Wildlife Service's Code of
Federal Regulations. These are the general regulations that
apply to virtually every permit the Fish and Wildlife Service
issues, from marine mammals to migratory birds and to
endangered species.
In there we made some adjustments. When we went out with
the final No Surprises rule--excuse me, it wasn't in the No
Surprises, it was in the safe harbor and candidate conservation
agreement rulemaking recently that indicated that if, at the
end of the day, the continuation of an HCP permit, despite all
the adjustments, everything that anybody could do--the
Government could do, the private sector could do, the States
could do, or the landowner could do--if at the end of the day
the continuation of that HCP permit would result in the
jeopardy of the species, we would consider the revocation of
the permit.
So at the end of the day you don't have the ability to take
your HCP permit and drive a species into extinction.
Again, we don't get to that point, though, until we have
tried virtually everything else, and one of the criteria up
front for issuing an HCP permit in the first instance is that
the issuance of that permit will not result in jeopardy to the
species, and so we feel that that provision in the part 13 regs
is consistent, ultimately, with the issuance criteria for an
HCP permit in the first instance.
Senator Lautenberg. Thanks, Mr. Chairman.
Senator Crapo. Thank you, Senator.
I'd like to followup on that question with a question to
both of you, and the question is whether you believe there is a
difference between a standard of preventing the jeopardy of the
species in the development of an HCP versus the standard of
trying to recover the species in the development of an HCP,
and, if there is a difference between those standards, does
that difference impact the success of the HCP program?
Ms. Medina. I'm happy to lead off on this one, because I
think we've articulated at least our vision of what those words
mean in a letter that I'm happy to provide to the committee. It
was to some timber companies that wrote us about 2 years ago
and asked us that very question.
We went back and looked very long and hard, talked with our
scientists, and tried to understand and have them understand
what those words mean--recovery and survival. To them, the
terms didn't mean anything different. They really were
consistent with one another.
Our species in NMFS are extremely depleted, they are
severely depleted, there are not many left, and so in order to
get--I think of it as pushing a ball up hill. If you can push
the ball up far enough to get past whatever that bright line is
that means survival, you're going to get it, it is going to be
rolling hard enough to keep rolling past recovery.
They are essentially merged in the long run over time. What
it will take to get to one will get you to the other. That's
the way the biologists have explained it to me. That's the way
they think of it.
I think the struggle here has been for the lawyers and the
scientists to figure out a common framework, a common
understanding of what the words in the statute mean.
So, for all intents and purposes, for everything that we
do, they are the same. There isn't really a bright line that
you can draw on the landscape that will get you to one but not
the other. We can't calibrate that way.
Senator Crapo. Mr. Barry, before you answer I'd like to
followup with Ms. Medina just for a second there.
Using your analogy of the ball on the hill, it seems to me
that the standard of preventing jeopardy of the species would
be stopping the ball from moving further down the hill, and the
standard of improving or recovering the species would be
actually pushing the ball up the hill into a safe harbor, or
whatever.
But to me I can see a very big difference there, and it
seems that the standard between those differences would have a
significant impact on the HCP.
Does NMFS or NOAA disagree with that?
Ms. Medina. Our scientists just can't think of it that way.
For their purposes, it really is very difficult to discern
between one and the other, especially when you're looking at
the long-term impacts of these HCPs, because they are very
long-term agreements that we're signing now, at least we are
for the most part.
Senator Crapo. So you're saying that the requirements that
would be imposed in an HCP negotiation would not change,
depending on whether the standard was preventing jeopardy as
opposed to recovering the species?
Ms. Medina. It's not that the standards wouldn't change in
that you could calibrate it. It is really that they can't see a
difference. For them, long-term viability, survival, long-term
survival, recovery--the words that actually hearken back to the
explanation of this program that the committee wrote when they
passed the HCP amendments in 1982 is what they're trying to do.
What they're trying to do is translate those words into
actions on the ground, and for them there really isn't a bright
line. There isn't a great distinction that they can draw,
particularly because our species are so depleted.
We're starting so far down at the bottom of the hill there
is not much more room to roll down. I mean, we're really all in
an up mode, and, you know, most of our species are in really
bad shape, and for them this is the way that they see it.
We've also talked about it in terms of habitat, because in
ESA, as you well know, often what we have to do is not just
look at the species but at their habitat, as well, and they
have tried to, in the long run, design HCPs that will return
habitat to its properly functioning condition. That's sort of
the marker for them. The words ``survival'' and ``recovery''
are things that they then equate to that.
Senator Crapo. And you indicated that there is a letter
drafted out of your office?
Ms. Medina. Yes, indeed. Well, I think it is a joint
letter----
Senator Crapo. Is a joint?
Ms. Medina [continuing]. But we can provide it for the
committee.
Senator Crapo. Yes. Would you provide that letter?
Ms. Medina. And there is a scientific memo that supports
it. We'd be happy to provide it.
Senator Crapo. Thank you.
[The memorandum follows:]
Senator Crapo. Mr. Barry.
Mr. Barry. Yes. Let me just offer some other thoughts, in
addition to what Monica has just mentioned.
I'd go back to the 1986 section seven regulations. There is
a provision or a discussion in the preamble which notes that
for some species that have declined so severely, there is
virtually no bright line between adverse effects on recovery
potential of the species and jeopardy. Even going back to 1986,
we recognized that there are some species that are so
critical--whooping crane is a good example. We just don't have
much margin for error. California condors is another example--
we are down to just a few left in the wild.
For some species, the average scientist is going to say,
``Hey, if you affect their recovery potential, they are so low
right now you've affected their survival potential, as well.''
Under the Act, it is true that the issuance criterion that
we have to clear is whether or not the issuance of the permit
would jeopardize the continued existence of the species, so
jeopardy is clearly the statutory hurdle. There are other
issuance criteria in the act, though, that give us additional
flexibility to truly try to get the best deal that we can for
the species.
We have to be able to clear not only a jeopardy hurdle, and
what Monica was saying was that for some of their salmon
species they feel that they are so far gone to begin with that
virtually anything that affects them, that affects their
recovery potential, could affect their survivability, as well,
and would hit the jeopardy standard.
But, in addition to that, we basically are obligated to
negotiate to try to minimize and mitigate the level of take to
the maximum extent practicable. We've got a number of other
provisions and authorities in negotiating HCPs to try to get
the best deal we can for the species, regardless of how the
lawyers endlessly debate whether it is jeopardy that is the
standard or recovery.
I mean, the statute says ``jeopardy.'' No question about
that. I think once you get into the biology and the science,
though, it gets a lot murkier and a lot grayer very quickly.
Senator Crapo. It would seem to me that--again, I still see
a difference in my mind, and it would seem to me that if HCPs
were not successfully negotiated as a result of seeking to get
too much, that we could end up essentially not availing
ourselves of the benefits that could be achieved by achieving
the lack of jeopardy standard, and I just--you know, the second
part of my question was: Does the utilization of an increased
standard jeopardize the success of HCP programs?
Ms. Medina. I would say ``no,'' Senator. I appreciate your
question and I understand, as a lawyer and not a scientist, how
hard it is for us to try and see things the way that the
scientists do, because the words seem very clearly different
and we, you know, have this joint interpretation of what they
mean.
But for the scientist it isn't that clear, and I think that
you can hearken back to adaptive management as another way
that, if we're asking what we don't need in an HCP, we
continually monitor it so that we can ratchet it back and get
protections elsewhere so that there is never a waste, there is
never a mismatch between what we ask of the applicant and what
the species needs to get there.
Senator Crapo. I'd be interested in this. You've already
indicated that you can provide the letter and whatever backup
documentation there is for that letter. If you have any other
materials on this, I'd be interested in what you have.
Were you going to say something, Mr. Barry?
Mr. Barry. I would acknowledge that, in fact, disagreements
between a permit applicant and the agencies over some of these
issues clearly has resulted in additional delay in the
negotiation of these agreements. I mean, I would be lying to
you if I said that didn't happen.
One of the things that I've noticed over the years, though,
that aggravates the situation is when--and heaven forbid, since
I am a recovering lawyer, myself, right now--when the lawyers
over-lawyer the negotiation process.
I think that was one of the big problems with the Plum
Creek HCP for a while. We had everybody dug in up to their
axles over a debate over what constituted ``take.'' It was a
legal debate.
Finally, Kurt Schmitch, who was the head of the negotiation
team for the Fish and Wildlife Service, said, ``Lawyers aside,
out of the room. Let's just talk about the biology. What are
the landscape conditions that we want to achieve at the end of
this agreement?'' Suddenly, it was framed in a different light,
and Lorin Hicks and Kurt Schmitch and the biologists all the
sudden started approaching it from a different direction
because it wasn't being burdened with legalistic definitions of
what constitutes take, what constitutes recovery, and what
doesn't. They just started discussing what they would like to
see at the end of the day.
Ms. Medina. ``What are we going to do?''
Mr. Barry. Yes. ``What are we going to do?'' Then all the
sudden they started thinking like scientists again and they
were able to make some sufficient progress.
I'm not sure what the message there is other than
Shakespeare was probably right that first we ought to kill all
the lawyers.
[Laughter.]
Senator Crapo. Well, being a lawyer, myself, I won't
comment on that.
I have several more questions, but I'd be very willing to
interrupt for another round.
Senator Lautenberg. No thanks, Mr. Chairman.
Senator Crapo. Isn't it true that several HCP negotiations
are in jeopardy because NMFS is requiring the applicants to
meet this higher standard?
I mean, one of the reasons I raise this question is because
that issue has been raised to us.
Ms. Medina. I understand and I don't think that they are in
jeopardy. I think that we're moving ahead on all of our HCPs
now. You know, we do have disagreements. It is a negotiation,
no doubt about it. It is a discussion. We need all the
information the applicant can give us. It is beneficial if
everyone is open-minded and comes into the process willing to
share information and work together, but I'm not aware of
anywhere we're completely at a loggerhead and not moving
forward.
The thing that kept us from doing more HCPs over the last
year-and-a-half or so was the fact that we had put so many of
our resources into the PalCo HCP. We were virtually at a
standstill in California because all of our resources were
dedicated to that HCP. It was an incredibly intensive effort,
and I think the timber companies, the landowners, were looking
to see what would happen. They weren't anxious to move forward
and negotiate terms until they saw what we were doing in that
HCP, because it truly was, you know, innovative, forward-
looking, ground-breaking--all of those things. We tried to
really advance our science and our implementation of the
program in that HCP.
Senator Crapo. Well, you may have given at least part of an
answer to my next question, because one of the things I wanted
to get at with regard to the National Marine Fisheries Services
that--and I recognize that Fish and Wildlife has a lot more
species that they cover and has a lot more opportunity for
HCPs, but with the significant fisheries issues in the Pacific
northwest, it seems to me curious that NMFS has issued only two
incidental take permits associated with HCPs.
Can you explain why that is the case?
Ms. Medina. Well, some of our listings are very recent,
Senator. They are as recent as March of this year. So we really
are just ramping up our program, and I think we were not
prepared for the intensive nature of the work involved in these
HCPs. It takes time for us to get staff on the ground out in
the northwest who are capable.
I mean, as you know, Dr. Kareiva has now joined our NMFS
staff. We are ramping up. We are getting ready for this, and we
expect that we will be doing HCPs not just with timber
companies but with public water districts, local governments
like the mid-
Columbia HCP is with two counties in Washington State, and that
one is right on the verge of being ready to go and done.
We are really trying to hit the ground running on a problem
that we are only just recently faced with, so our experience is
really new and really recent, and I'd love to be back here in a
few years and tell you how we are doing then.
Senator Crapo. I'd love that, too.
Mr. Barry.
Mr. Barry. Yes. I'd like to just--I don't want to sound
like a broken record here for OMB, but in the case of the Fish
and Wildlife Service one of the real challenges that we have
and one of the reasons that the HCP program takes so long--in
fact, one commentator said the Berlin Wall came down faster
than most HCPs get negotiated--but one of the problems that we
have is that within the Fish and Wildlife Service's endangered
species budget the people that are doing HCPs are also the same
people that are doing section 7 consultations. It comes out of
the same pot of money.
And so what you frequently have is this real frustrating
sense of tension among the staff people in these field offices.
They've got statutory deadlines for section 7 consultations.
Within 90 days you have to have it finished. You have to have
your biological opinion out within 35 days after that or 45
days after that, and so they are constantly being torn by the
need to go off and work on these section 7 opinions which have
congressionally imposed deadlines versus these HCPs.
One of the things that we did up in the northwest to try to
eliminate that tension was to have a group of people that did
nothing but HCPs. They were focused. They didn't have to race
off to handle a section 7 consultation.
Unfortunately, that experiment has come to pass and I have
been watching to see what happens with that team now having
been disassembled, but one of the real problems we have is
that, given the resources we have, the same people that are
supposed to be negotiating HCPs are the ones who are supposed
to be responding to Federal agencies, and so you get this
terrible tradeoff, almost like Sophie's Choice. Do we respond
to the Federal agencies and give them a quick turn-around, or
do we let the landowner just sort of hang in the breeze? It's
one of the reasons that we asked in our budget for the fiscal
year 2000 for a significant increase in the amount of money for
the consultation element. It was to give us the ability to
respond to private landowners more efficiently. Unfortunately,
again, Congress has chosen to give us very little of that new
money.
Senator Crapo. I, for one, will be very glad to support
those efforts, and hopefully we will be able to get you the
resources to respond more quickly.
I think I will just make a comment and then one last
question.
The comment is I hope that we're not going to let the
search for the perfect be the enemy of the good. Hopefully we
will be able to make progress in a number of these areas.
I did want to suggest that it seems to me, from what I've
heard yesterday and today, and from what I've heard from those
who have given input to us on this issue, that one of the
reasons it seems to take so long is that we don't really have a
clearly defined process for negotiating a plan. When a
landowner comes to the agency, it's not really clear what it is
that is expected and what process needs to be followed so that
we can expeditiously get through the necessary hoops and get to
a point where an agreement can be reached, and I think it would
be helpful if those kinds of standards and if a clearly defined
process could be defined.
My last question is for you, Mr. Barry, and it is that in
your testimony you mentioned that HCPs covering small, non-
industrial, private tracts of land do exist. My question is:
How many of those kinds of HCPs exist, and what can you tell me
about the time and cost required versus--well, relative to
these smaller HCPs?
Mr. Barry. Well, you anticipated the last word that I
wanted to try to get in before you closed down this panel.
If I had to pick one area where I think we have the biggest
challenge ahead of us, it is to make HCPs more readily
available and affordable to small landowners.
The big corporate timber companies and the large developers
have the wherewithal and the ability to comply with the Act.
They can hire the consultants, they can hire the lawyers, they
can slug it through. They're used to paying environmental
compliance costs as a part of doing business. For the smaller
landowners, though, it is hard. It is frightening. They don't
know where to go. They don't have the resources available to
them.
We have actually issued a fair number of small landowner
HCPs, in particular in the South, for homeowners, people who
are going to build on a quarter acre lot in scrub jay habitat.
There's not much you can do, there's not mitigation that makes
much sense, and so we have issued a number of HCPs for people
at a quarter-acre, half-acre, less-than-an-acre level,
primarily for homes.
If you are a wood lot owner, small wood lot owner, and
you've got 50 acres or 100 acres, we have, in fact, actually
issued HCPs in those instances, but I would have to say I don't
think we've done as good a job as we should.
One of the things that I'd like to see happen in the future
is for us to be able to develop more of a template HCP that
could be utilized readily, pulled off the shelf in a particular
area for certain species, and use that as a way of streamlining
the cost and the process.
We actually did issue an HCP handbook, a jointly prepared
Fish and Wildlife Service NMFS HCP handbook that was designed
to try to provide people with a greater understanding going in
on what are the different steps, what are the different offices
you need to work with, what are the questions you need to be
prepared to ask, and in the back of that my recollection is we
tried to come up with a template model of a small-scale, low-
impact HCP.
So we are trying. I don't think we have perfected it. It's
the one area that I would like to spend more time, personally,
focusing on.
Senator Crapo. I appreciate that, and I would encourage you
to do so.
Before we conclude, Senator Lautenberg, did you have any
further questions of this panel?
Senator Lautenberg. No. I'm satisfied. I'm listening very
carefully, Mr. Chairman. You asked almost everything I wanted
you to.
Senator Crapo. All right.
Well, thank you. We appreciate your time and your effort
and we'll continue to work with you on this issue.
Mr. Barry. Thank you.
Ms. Medina. Thank you very much.
Senator Crapo. This panel is excused.
I'd like to call up the second panel now.
The second panel consists of: Dr. Lorin Hicks, the director
of Fish and Wildlife Resources for Plum Creek Timber Company;
Mr. Steven Courtney of Sustainable Ecosystems Incorporated out
of Portland, OR; Mr. Mike O'Connell of The Nature Conservancy;
Ms. Laura Hood of the Defenders of Wildlife; and Mr. Gregory A.
Thomas, president of the Natural Heritage Institute.
I don't think that the name plates are in the same order
that I read them, but we'll go in the order that I read them.
Dr. Hicks.
While we're getting ready, I'll remind this panel that this
is a larger panel, and therefore we ask you to pay even closer
attention to the lights so that we do have the time for the
questions and the interaction among the panel members, and I
will advise this panel, as well, that your full written
statements, as well as any other material you would like to
submit, will be made a part of the record.
Dr. Hicks, you are welcome to begin at any time when you
are ready.
I also encourage each of you, when it is your turn, to pull
the microphone as close as you can to your mouth so that we can
hear you. Sometimes it is hard in this room unless the
microphone is very close to you. Thank you.
STATEMENT OF LORIN HICKS, DIRECTOR, FISH AND WILDLIFE
RESOURCES, PLUM CREEK TIMBER COMPANY, SEATTLE, WA
Mr. Hicks. Good morning, Mr. Chairman and members of the
committee. I am Dr. Lorin Hicks, and I am a ``recovering'' HCP
applicant. I am also director of Fish and Wildlife Resources
for Plum Creek Timber Company, Incorporated. Plum Creek is the
fifth-largest private timberland owner in the United States,
with over 3.3 million acres in six States.
I am here today to talk about how important habitat
conservation planning is to our leadership in environmental
forestry. Habitat conservation planning promises to be the most
exciting, progressive conservation initiative attempted on non-
Federal lands in this country.
Plum Creek is no stranger to habitat conservation planning.
Plum Creek's Central Cascades HCP, a 50-year plan covering 285
species on 170,000 acres, was approved in 1996. We are
currently working on another called the ``Native Fish HCP,''
covering 1.7 million acres in three northwest States. A third
HCP for red-cockaded woodpeckers in the South is under
development with the Fish and Wildlife Service.
In 1995, we also initiated an 83,000-acre grizzly bear
conservation agreement in Montana's Swan Valley.
Since 1974, few issues have been surrounded with more
controversy than the Endangered Species Act. It is often
criticized as unworkable and characterized as iron-fisted.
Regardless of its image, its impact on landowners has been
profound. My company, Plum Creek, is no exception. Our 3.3
million acres supports no less than 12 federally listed species
and others, such as salmon and lynx, which have been proposed
for listing.
This committee faces a critical question. Can HCPs continue
to work for landowners and for endangered species into the
future? This hearing hopefully will give the committee insights
in the underlying science and principles that drive HCPs.
Two of the fundamental foundations of HCPs are under great
pressure.
First, the No Surprises policy, which is critical for
landowners to undertake an HCP, is being challenged. It
provides the necessary incentives for landowners to undertake
the costly and resource-intensive process to complete a habitat
plan. To ensure that the program remains strong, we believe
that it should be codified.
Second, pressures mount to standardize HCPs and compare
them to each other, with a tendency to use each one to raise
the bar for those which follow. In my opinion, this one-size-
fits-all approach is precisely what has challenged ESA since
its inception and could be the most important deterrent to the
inclusion of small landowners in the HCP program.
It is important to understand that HCPs are as different
from one another as landowners and land uses. They are as small
as one homesite and as large as 7 million acres. They are as
short in duration as one construction season and as long as 100
years. They are as focused as a single species and as expansive
as hundreds of species. And, importantly, each landowner has a
different incentive for entering this voluntary process.
To help demonstrate this, I have attached a new booklet
just produced by the Foundation for Habitat Conservation
providing brief case histories of 13 HCPs from around the
country. These case studies give better definition to my point
that HCPs vary widely in scope and intent, and I recommend this
document for you to review. These examples give credence to the
notion that HCPs can be an effective tool for conservation.
Let's dispel a myth that HCPs are not based in science.
When my company, Plum Creek, created its first HCP, we took on
a very complex challenge. Not only did we have four listed
species in our 170,000-acre Cascades project area, but 281
other vertebrate species, some of which would likely be listed
within the next few years. Combine this with the challenges of
checkerboard ownership, where every even-numbered square mile
section is managed by the Federal Government under their new
Northwest Forest Plan, and you have a planning challenge of
landscape proportions.
To meet this challenge, we assembled a team of scientists
representing company staff, independent consultants, and
academic experts. We authored 13 technical reports covering
every scientific aspect, from spotted owl biology to watershed
analysis. We sought the peer reviews of 47 outside scientists,
as well as State and Federal agency inputs.
As a result of these inputs, we made technical and tactical
changes to the plan, and additionally we developed working
relationships with outside professionals that were invaluable
and have been maintained to this date.
Let's also dispel the myth that the public has no access or
input to HCPs. During the preparation of the Cascades HCP,
which took 2 years and $2 million, we conducted over 50
briefings with outside groups and agencies to discuss our
findings and obtain additional advice and input. During a
public comment period, all HCP documents and scientific reports
were placed in eight public libraries across the planning area.
I brought with me today some of the major documents from
the Plum Creek Cascades HCP, which was completed in 1996. These
documents include the draft and final EIS, the final plan, a
compendium of the 13 peer-reviewed technical reports, and this
is a notebook with all of the Federal decisionmaking documents
that were completed, including the biological opinion and the
statement of findings.
This is all part of the public record and part of the
documentation of our HCP.
We continue to publish our scientific work that myself and
my team completed for this in technical publications. For
instance, we do have a paper in this month's ``Journal of
Forestry'' on spotted owl habitat research that we did
preparatory to the HCP.
Today, Plum Creek is nearing completion of a new HCP. This
new plan focuses on eight aquatic species and covers 1.8
million acres of our lands in Montana, Idaho, and Washington.
The company and the Services have been working over 2 years on
this plan, which will be the first HCP for the Rocky Mountain
region.
To provide a scientific foundation for this HCP, I
assembled a team of 17 scientists that authored 13 additional
technical reports spanning topics from fish biology to riparian
habitat modeling. These technical reports were peer reviewed by
30 outside scientists and agency specialists.
We have all made the technical reports and white papers
available to interested parties on this CD, and have done so
well in advance of the public release of the HCP, which is
scheduled for September 1.
The good news is that anyone can have access to the latest
science and technology used in the development of the HCP.
My point here is to emphasize that for Plum Creek and other
applicants the HCP process has been a principal catalyst for
private landowners to undertake unprecedented levels of
scientific research and public involvement.
I'll rush ahead here and make sure that I can get my time
done here.
Mr. Chairman, these HCPs are not only science plans but
also business plans which commit millions of dollars of a
company's assets in a binding agreement with the Federal
Government.
In the Pacific northwest, the stakes are high for both
conservation and shareholder value in private timberlands. The
consequences of failure are so ominous for both interests that
careful evaluation of the economic and ecologic ramifications
are essential to successful completion of HCPs. Guesswork is
not an acceptable alternative for either the Services or the
applicant.
As enthusiastic as we are about HCPs, the process is not
without its faults. Since our first foray into HCPs, we've
noticed some significant shifts in policy and practice. One
downstream effect of the five-points policy has been the
requirement of the Services to more-thoroughly analyze the
effects of adding multiple species to the HCP, resulting in
deletion of conservation measures for lesser-known species
because the Services lack the information needed to complete
their new requirements. This creates a major obstacle for
completion of multi-species plans.
There is a need for the Services to commit necessary
resources and personnel to the development of HCPs from
beginning to end, a period often as long as 2 years. Far too
often, we experience shifts in key agency staff and biologists
whereby professional experience is lost and continuity in plan
development is broken.
Once the majority of the scientific content of the plan has
been completed, we have experienced excessive focus on
relatively minor technical details. These are often speculative
or hypothetical issues that are unproven in the literature but
for which there are strong emotional concerns. In other words,
with 95 percent of the scientific work completed, most of the
debate centers on the remaining 5 percent, creating unnecessary
delays.
As we near completion of the native fish HCP, we are again
reminded of the duplicative nature of the HCP and NEPA
processes. The HCP is, by definition, a mitigation plan for the
potential impact of lawful operations on listed species and
their habitats. The NEPA process also requires a similar
assessment of the HCP and management alternatives. Not only
does this add additional expense and resources to duplicate
work already done, but requires additional review and response
by the Services.
Senator Crapo. Your time has expired. Could you try to wrap
up quickly?
Mr. Hicks. OK.
As you are aware, many of the HCPs being completed in the
West require both the Fish and Wildlife Service and the
National Marine Fisheries Service to work with the applicant
and approve their final plan. Despite their efforts, these two
agencies do not work in sync. The agencies provide varying
levels of technical support to applicants. The combined effect
of this lack of interagency coordination is further time delays
to the applicant.
Mr. Chairman, I thank you for the opportunity to testify.
Senator Crapo. Thank you. And your full testimony is a part
of the record.
Mr. Hicks. Thank you, Sir.
Senator Crapo. Next we'll hear from Mr. Steven Courtney.
Dr. Courtney.
STATEMENT OF STEVEN COURTNEY, SUSTAINABLE ECOSYSTEMS INSTITUTE,
PORTLAND, OR
Mr. Courtney. Good morning. I am Steven Courtney, a
biologist and vice president of Sustainable Ecosystems
Institute.
SEI is a nonprofit organization dedicated to using science
to solve environmental problems. We are not an advocacy group,
and our charter states that we will not engage in litigation.
Instead, we believe that cooperative programs using good
science can find lasting solutions.
My testimony will focus on the positive lessons that can be
learned about HCPs. I'll also make some suggestions for
improving the process.
The staff of SEI has acted in many ESA issues. Most of our
work is for governments, but we also work closely with both
industry and environmental groups. I, personally, have been
involved with six HCPs and was an advisor to Dr. Kareiva on the
AIBS project.
I will report on two issues: the recently completed Pacific
Lumber HCP and the SEI Santa Barbara meeting on how to
integrate science into HCPs.
Let me first State that HCPs are important to conservation.
Without them, there would be few options for management of
endangered species on non-Federal lands. Rigorous scientific
analyses are crucial to those plans; however, science is just
part of any HCP, which is a management document.
Ultimately, the plan is a result of a negotiation and of
decisions made by landowners and regulatory agencies. Science
can help in this process, but it is not a magic bullet.
Scientists can provide information on planning objectives and
options and on the biological consequences and risks of these
options. The better the information we provide, the more likely
the planners can then make good decisions.
In the Pacific Lumber HCP, we used science to diffuse a
controversial situation. We coordinated a large scientific
program on the threatened marbled murrelet. Federal, State, and
private scientists all cooperated to determine the effects of
different management options.
Ultimately, the program was successful in that it provided
clear guidance to the decisionmakers. Several items stand out.
First, the program was very well-funded by the company,
which invested heavily in obtaining good scientific
information.
Second, the quality of the scientific work was improved by
an independent advisory group or peer review panel. In this
chart I show here, I show the results of an independent audit
to the PalCo HCP using the very same techniques that were used
in the AIBS study by Dr. Kareiva and his group.
You will see that the green symbols indicate the original
draft for the PalCo HCP and the red symbols equal the final
draft, and you can see the change in performance on many
different criteria, and the blue are the performance of four
other unnamed plans.
You will see that the quality of the HCP did improve
dramatically from the early to the final draft under the panel
guidance. Note also that the final plan outperforms its other
murrelet HCPs.
A third important point on the Pacific Lumber HCP was that
the scientists were not asked to make management decisions. The
separation of roles is key. The use of good science can build
trust between parties precisely to the extent that scientists
avoid becoming advocates.
Now, I am pleased that Dr. Kareiva in his written testimony
agrees that the PalCo monitoring plan uses good science. This
monitoring program was developed using the most-advanced
analytical techniques available.
The AIBS study was useful in pointing out that not all HCPs
do use such methods, or even information that already exists;
however, that information--the AIBS study of Dr. Kareiva--was
essentially a research study, an academic study. It did not
address important practical considerations, as Mr. Barry has
already said, and it didn't really discuss how to improve the
process.
In April of this year, SEI brought together leading
decisionmakers and scientists to develop those practical
improvements, and participants were from a broad range of
groups. Working by consensus, we identified numerous ways to
strengthen the process, as outlined in the minutes of that
meeting.
There was, for instance, general recognition, a message
you've already heard, that the regulatory agencies and many
applicants lack the sufficient resources for the technically
demanding tasks they face. Academic and other scientists could
help to bridge those gaps, but they lack incentives or
opportunities to do so.
Most importantly, there are actually significant barriers
to making more effective use of science. We need new
infrastructure to make that use of science possible.
The SEI Santa Barbara group initiated development, for
instance, of a national peer review program for HCPs. We are
now working to make that a reality and have expanded our group.
By this consensus approach, we are seeking voluntary
improvement to HCPs. By improving the science in their plans,
permit applicants will then smooth the negotiation process,
save time and money, and gain certainty.
The general public also wants to see better science in
HCPs, and an open peer review process will improve public
confidence.
Last, if I could just have 1 second to comment on previous
testimony, you've heard that science is doing pretty well in
HCPs, but there are some improvements that are possible. I want
to emphasize that the HCP process, itself, is not in an
entirely healthy state. I know that numerous applicants are
talking or have walked away from the table, and that there is a
need to improve the process for everyone's sake, and that
science may be one way that we can do that.
Thank you.
Senator Crapo. Thank you, Dr. Courtney.
Mr. O'Connell.
STATEMENT OF MIKE O'CONNELL, THE NATURE CONSERVANCY, MISSION
VIEJO, CA
Mr. O'Connell. Thank you very much, Mr. Chairman and
members of the committee. Thank you for the opportunity to
address the committee on the science of regional conservation
planning under the ESA.
The Nature Conservancy has been involved in conservation
planning almost as much as Don Barry, since the ESA
reauthorized section 10(a) in 1982. I, myself, have worked both
on the ground and as a student of HCPs for 12 years, and so the
observations I want to offer and comments reflect both
Conservancy's experience and my own.
When I was reviewing my testimony last night, I realized
that my written testimony perhaps came across a little bit
harsher about habitat conservation plans under section 10(a)
than I had intended. And in fact, what I want to talk about is
not that HCPs are bad, because I don't believe they are--I
believe they are, in fact, a good thing for what they are--but
I want to talk about what they are and what they are not and
how some scientific improvements can actually help them become
better and solve some of the endangered species conflicts that
I think they do not.
Part of the problem I think is that HCPs are, in fact, a
reactive process, generally. They are developed in response to
proposed impacts on generally listed species. You don't have a
listed species, you don't have a prohibition problem under
section 9, and you don't end up generally getting an HCP.
And part of the problem, as well, is that HCPs have
generally focused on the wrong biological scale, not that
focusing on a species scale is bad, but that they miss an
entire scale of conservation that is important, and that is of
the natural community or the ecosystem level.
I think it is important to compliment the Fish and Wildlife
Service on their work to improve the habitat conservation
planning program. They've done their best to try to make it
work and make it more conservation-oriented, both through
practice and through policy. Their solutions, however, are
limited by a legislative policy that is weak on natural systems
conservation, and it is also weak on incentives to
participants.
I think the Service has done pretty well, all things
considered, with habitat conservation plans. So what's the
answer from a scientific standpoint?
I think the key is how we focus our entire suite of
conservation actions, including HCPs and how they are deployed.
I want to name a couple of scientific principles that are
important to consider if we want to achieve broad-scale natural
community conservation under the Endangered Species Act with
HCPs as a part of that tool.
First, biodiversity conservation is important to consider
at many different spacial and temporal scales. HCPs, by their
definition, by their nature, by their legal definition,
generally are focused on the species level and they are
generally focused on listed species or species that are going
to be listed very shortly in the future.
There is never one best scale for conservation action. The
key is to find the appropriate scale for the problem and
integrate across a number of different scales in an overall
conservation strategy.
The second principle is that ecosystems are much more
complex than we think. Science can never provide all the
answers to questions about conservation, so our responses
should be to exercise caution and prudence when we are
designing answers. A good example of this is the adaptive
management that people have spoken about.
Third, nature is full of surprises. Ecosystems are
characterized by non-linear, non-equilibrium, and random
dynamics, and unexpected events will occur. The question is not
whether there are No Surprises, it is whose responsibility
those surprises are assigned to.
Fourth, conservation planning is interdisciplinary, but
science is the foundation. I think this is important, because
frequently science is treated in habitat conservation planning
negotiations as sort of a seat at the table rather than what it
should be, which is a method of evaluating how to reach
specified objectives.
This raises the critical question of how to integrate both
scientists and scientific information in the process.
So what are some potential solutions? Given these important
principles and the limitations of habitat conservation plans,
both from a scale and a scope perspective, I think there are
some improvements that can be made, and I will quickly go over
them.
The natural community conservation planning program in
southern California that I have been involved in for the past 5
years is an attempt to move beyond the reactive conservation
planning of tradition to a more up-front, creative program that
looks at not only endangered and threatened species but
preventing--conserving natural communities and preventing these
conflicts from occurring in the future.
The most critical improvements that this program has made
is clear regional scientific guidance developed in order to tie
individual conservation plans and permits together.
Also, the habitat level of conservation action that was
taken, less concerned with individual species and where they
might occur today, their occupied habitat, as it is with
constructing a regional conservation system that will protect
both species and the natural communities that sustain those
species. And then, finally, how biological information has been
brought to bear on the process.
This includes comprehensive management and monitoring, and,
as I said before, the two most important, I think, things for
that are regional conservation framework, regional guidance, a
vision of what the regional conservation strategy will look
like, more than just species and impacts to those species, and
then a habitat basis for conservation planning and action that
I hope I can expand upon in the question and answer session.
I would encourage you to take a look at my written
testimony, and I appreciate the opportunity to testify today.
Senator Crapo. Thank you, Mr. O'Connell. We will carefully
review the written testimony, as well, and, in fact, have
already to a certain extent and will further.
Senator Crapo. Ms. Hood.
STATEMENT OF LAURA HOOD, DEFENDERS OF WILDLIFE, WASHINGTON, DC.
Ms. Hood. Thank you for the opportunity to testify today
before the Senate Subcommittee on the scientific aspects of
habitat conservation plans.
I am with Defenders of Wildlife, a nonprofit conservation
advocacy organization based in DC. with over 300,000 members
and supporters.
Defenders' mission is to protect native animals and plants
in their natural communities. As an organization that is
committed to science-based management of endangered species,
Defenders has been heavily involved in individual HCPs, as well
as HCP policy, on a national level.
The results of our scrutiny of the program reveals that
significant improvements must be made to HCPs in order to
improve the scientific basis for them and to reduce the risk
that they impose to endangered species.
Starting in 1996, Defenders started research on HCPs that
would--culminate in our 1998 report on the topic, entitled,
``Frayed Safety Nets.'' In researching this report, we reviewed
plans nationwide, then we selected a representative sample of
24 plans and evaluated them using criteria that should be
satisfied in order for plans to lead to conservation benefits
on private land.
In the course of the research, we read each plan and
associated documents, we interviewed key plan officials, and we
looked at any recovery plans for the species.
The report itself focused on the science, public
participation, funding, and legal aspects of HCPs.
Our objective was to point out the best and worst examples
of those aspects of HCPs and to examine national trends.
Our findings showed that, as they were being implemented,
many plans represented large risks to endangered species
because often they lacked an adequate scientific basis, they
were difficult to change if they resulted in unanticipated harm
to species, and they were often inconsistent with species
recovery.
We identified the need for more scientific information to
provide a platform to support well-informed HCPs. In the study
of HCPs led by Dr. Peter Kareiva, scientists took a more
quantitative approach to this same issue, and that study also
pointed out that substantial scientific data are often missing.
For example, in two-thirds of the cases that were reviewed,
there were no data available for the proportion of the total
population that would be affected by the HCP.
I propose two classes of recommendations in response to the
need to improve the scientific basis of HCPs.
First, I agree with the panel of scientists in yesterday's
hearing in calling for increased, organized information on
species and habitats.
Second, I recommend policy measures for moving forward with
HCPs when scientific uncertainty exists, while still reducing
risk to species.
But before I get to the risk management for species, let me
explore opportunities to increase scientific information for
HCPs.
First, we already have several tools in the Endangered
Species Act for addressing this. Recovery plans can be
excellent repositories of information on species, provided that
they are well-informed, peer-reviewed, and adaptive.
Having information-rich, updated recovery plans to guide
HCPs puts HCPs within the sphere of recovery, which is where
they belong. Similarly, critical habitat designation also
provides essential information about the ecology and
distribution of species and habitats.
Outside the Endangered Species Act, large-scale ecosystem-
based protection plans are being developed, and these
strategies may allow us to understand how HCPs fit within the
larger landscape.
And, finally, to improve the quality of science in HCPs,
independent scientists need to be more involved in the
development of HCPs, whether through consultation or formal
peer review.
That being said, despite our best efforts, scientific
information for HCPs will never be complete. This scientific
uncertainty does not mean that HCPs cannot go forward. It is
essential to recognize scientific uncertainty in the HCP
process and to implement procedures for managing risk to
species.
My second set of recommendations has to do with this risk
management.
First, when information is scarce, precautionary measures
can be incorporated into HCPs in multiple ways, including
increasing protection for species up front as a buffer,
ensuring that mitigation is successful before a take occurs,
and limiting the duration of HCPs and assurances.
Second, adaptive management is an essential component of
scientifically based HCPs. Unfortunately, under No Surprises
adaptive management is fundamentally restricted by the fact
that no additional money or land can be required of the
permittee.
While assurances are clearly important for private
landowners, I would like ``no surprises'' to become ``earned
assurances.'' That is, currently landowners receive assurances
automatically when HCPs are approved. I would like to see a
system where landowners earn those assurances, based upon the
likely benefit or the impact to the species, the amount of
scientific uncertainty involved in the plan, and the amount of
monitoring and adaptive management that is involved in the
plan.
With that point, I'll conclude. Thank you very much.
Senator Crapo. Thank you very much, Ms. Hood.
And, finally, Mr. Thomas.
STATEMENT OF GREGORY A. THOMAS, PRESIDENT, NATURAL HERITAGE
INSTITUTE, SAN FRANCISCO, CA
Mr. Thomas. Good morning, Mr. Chairman. Good morning,
Senator Lautenberg. I'm Greg Thomas. I'm the president of the
Natural Heritage Institute, a nonprofit conservation
organization located in San Francisco.
My statement today reflects the reality that the HCP
process must be made to work because there just is no other
vehicle for protecting endangered species habitat in lands and
waters subject to private rights, and the objectives of the ESA
cannot be met without conserving such habitat.
That's clear when you consider that for 80 percent of
listed species some portion of their habitat is found on
private lands, and for 50 percent their habitat is found only
on private lands.
Yet, the HCP process so far has not kept pace with the
biodiversity challenge. This is revealed by one of the many
useful statistics coming out of the NCEAS review that Dr.
Kareiva testified about yesterday.
It points out that 62 percent of species are declining in
areas covered by HCPs. Now, making HCPs work has two
dimensions, we believe: first, producing conservation
strategies that contribute toward the long-term survival of the
species and the associated elimination of their habitat needs
as a development constraint; and, second, apportioning the
burdens and responsibilities among the rights holders and the
public in a manner that produces the appropriate inducements.
Now, the science of conservation planning can be better
utilized in the HCP process to advance both of those
dimensions.
After 17 years of operating experience with HCPs as the
principal vehicle for conserving biodiversity on private lands,
it is now possible to take stock of what is working and what is
not and how the process can be improved.
With that objective in mind, in June last year NHI, my
organization, convened a technical workshop to synthesize the
results of the dozen or so empirical reviews of the performance
of HCPs that have been conducted to date by academic
researchers, practicing conservation biologists, and national
environmental organizations.
Incidentally, that workshop included four of the witnesses
and institutions that you've heard from at this hearing--Dennis
Murphy, the NCEAS review, Michael O'Connell and The Nature
Conservancy, and Defenders of Wildlife--so most of the good
lines have already been taken by previous witnesses.
But let me summarize a few of the findings and
recommendations on how this HCP process might be redesigned in
a manner that could benefit both species and applicants for
incidental take permits.
First, HCPs for individual landholdings would work better
if they were designed to fit within the context of a more
systematic habitat-wide or bioregional conservation strategy.
Michael O'Connell has already explicated this point in some
detail, and I hardly need to repeat what he has said.
But the central point here is that the optimal planning
unit for habitat conservation is not the individual landholding
or the water diversion. The optimal focus is not an individual
listed species. What we want to do here is create a portrait,
if you will, that is a picture of long-term survival of the
species.
If you want to think of this as a mosaic, then the
individual habitat conservation plans, the parcel-by-parcel
plans, are the tiles in this mosaic, and all we're saying here
is that if you want to create the picture you have in mind,
you'd better know what that portrait looks like before you
start designing the individual tiles.
We need a master plan, in other words, for this process to
work optimally, and that master plan is a landscape-scaled plan
that is going to require a more proactive and less reactive
stance by the Services to produce, and that's part of where the
reallocation of the burdens of habitat planning probably needs
to take place. This spells Federal dollars, and there is no
masking that.
The advantages of this approach are many and are outlined
in the written testimony in some detail. Landscape-level
planning can specify the overall conservation effort that is
required and provide a basis for determining and apportioning
the contribution that needs to be made by the individual rights
holders.
There is no mechanism at present under the act for
apportioning burdens as between incidental take permit
applicants and public lands. Basically, whoever gets there
first tends to cut the best deal.
It is more feasible to calibrate habitat conservation
planning to long-term survival rather than simply minimizing
impacts, and that's important because, as long as habitat
conservation planning is viewed, rightly or wrongly, as nickel-
and-diming endangered species further toward the brink of
extinction, it is going to remain controversial.
What we need is to set up a process that provides some
assurance of net survival benefit for these species.
I am perhaps a fifth of the way through the comments that I
intended for you this morning, so perhaps in the question
period I can move into some other terrain.
Thank you very much, Mr. Chairman.
Senator Crapo. Thank you very much, Mr. Thomas.
We thank the entire panel. We realize the 5-minute
limitation makes it very difficult for all of you to get what
you have to say said, and I assure you that we do review the
written testimony very carefully.
Senator Lautenberg, would you like to start out this round?
Senator Lautenberg. If I might, Mr. Chairman, I want to
again commend you. I think the witness group that we've had
here is an excellent one, and we get kind of a different
picture than is traditionally done in committee hearings, and
I'm pleased to hear the concerns that are registered here about
whether or not HCPs do what we want them to do.
I would ask Ms. Hood, how many of the HCP policies that are
approved thus far include the substance of the five-point
policy guidance that we are focused on as one way to assure the
quality of the HCP plan?
Ms. Hood. Well, the five-point policy has recently been
drafted and put under public comment, so it is a relatively new
process that the Services have instituted.
Senator Lautenberg. When was the five-point policy----
Ms. Hood. I believe that it was out for public comment this
past spring, so they are in the process of starting to
implement it at this point.
Senator Lautenberg. OK. So we can't really determine what--
if we look at the plans to date, there is no basis for
considering the five points. But would you say that, without a
clear definition, that in your examination of the HCPs thus far
that they included much or enough of the five points to give us
the value that you would like to see in these HCPs?
Ms. Hood. I think that basically we have been pleased that
the Services have promulgated this new guidance on HCPs,
because the five-point plan does address many of the issues
that we brought up as, you know, fundamental deficiencies in
some of the HCPs that have been put forward in the past. The
five-point plan addresses some of the problems that we did
identify, including the need to include more public
participation, the need to identify biological goals for plans
so that you can judge the progress of plans based on what the
plan was aiming to do for the species, and incorporating more
biological monitoring and adaptive management. These are all
changes that we really want to see included in HCPs and we're
glad that they are listening to our concerns about them.
I would say that one problem that we have is that the
guidelines are not regulatory, they're not required of
landowners, so we're still faced with the situation that No
Surprises assurances are given to private landowners based on
just the approval of the HCP, and, instead of having assurances
be offered as an incentive to include the best adaptive
management possible, biological goals that truly aim toward a
benefit for the species that are involved, and some of these
other recommendations from the five-point plan.
Senator Lautenberg. It has been said many times this
morning that the HCPs have been a substantial step forward in
terms of protecting habitat, so I'm inclined to agree with
that. And now what we are trying to do--and, once again, my
compliments to the chairman because what we've done is ask the
question today: ``How can we better assure that there is a
standard that measures what these plans are expected to
produce?'' And in order to do that you have to understand what
it is that your requirements are. Are they based on something
solid or are they based on just the--those of us who would like
to protect the environment. I just announced which side I'm on,
I guess.
How many of the HCPs--anyone who would be inclined to
answer--approved to date are based on a recovery standard so
that they do not undermine the recovery of the endangered
species?
The chairman identified recovery as opposed to jeopardy as
a matter of interest. What would any of you say regarding the
fact that the recovery standard does not jump out at you as one
of those standards that is included?
Dr. Hicks.
Mr. Hicks. Senator, if I could offer my attempt at an
answer on that from my perspective, having been a designer and
practitioner of several HCPs now, my understanding and the
counsel I've given to my company is that, although we may not
be necessarily adopting a recovery goal or recovery standard
for the HCPs, our task and the counsel we've gotten from the
agencies is that what we are planning to do under the HCPs
should not somehow subvert or set back recovery of those
species.
Two perspectives to leave you with. When we did the
analysis for the Cascades HCP, the Fish and Wildlife Service,
in their decisionmaking documents, analyzed the approach we
were taking in the HCP from the standpoint of the draft spotted
owl recovery plan that was there at that time.
They concurred that where we were instituting harvest
deferrals and where we were leaving habitat for the owls was
consistent with the direction that the Federal Government was
taking in their recovery plan. We were putting them in the
right areas, in other words.
And so, although we were not necessarily emulating the
goals, we were consistent with the plan and reviewed as not
setting back the goals of recovery should those goals be
implemented aggressively on Federal lands.
The second point I want to make is that, with many HCPs--
for instance, our native fish HCP right now--we started
development of this plan while the bull trout was a candidate
species for listing. We thought about this being a candidate
conservation agreement, or something you might do prior to the
listing of a species.
Because it has taken us over 2 years to develop this, we
have now been into the development of the plan since the
species has been listed, so we've converted the plan over to an
HCP, as well as the other species along the road here that
we're considering in the development of this plan.
But there is no recovery plan for the bull trout and likely
will not be before we are done with our plan, so the landowner
is faced with a choice should he delay conservation, delay a
notion, an idea of how to proceed ahead, or should he provide
not only some conservation on the ground early for the species,
but be able to obtain some regulatory predictability for his
company in this shifting mosaic of recovery planning, as well
as bring along some other species.
For instance, in the native fish HCP, the west slope
cutthroat is brought along and considered in the plan, and that
has not yet--is still being considered for listing at this
point.
And so the point is that recovery plans are great. We can
look at some of the tactics and techniques taken in those
plans. But HCPs--one of the values is that it allows the
landowner to get out ahead of recovery plans.
Mr. Thomas. Senator, if I may----
Senator Lautenberg. Yes.
Mr. Thomas. As I think Don Barry affirmed this morning, the
standard of performance for HCPs is basically whatever the
negotiation process will yield. The Government seeks to get the
best arrangement it can, and that means inherently--and let's
not hide the fact--economics intrude. The best deal you can get
is, to some extent, a function of the affordability of
mitigation measures by the private rights holder.
The better approach, as many of us have suggested, is to be
able to calibrate these plans to some kind of an overall
conception of what it will take to get this species out of
difficulty and what contribution any individual HCP needs to
make in that direction, and the extent to which the public fisc
has to be willing to pick up the difference, which often will
be the case. That's another benefit of landscape scale
planning.
Mr. O'Connell. Senator, if I might add, as well, part of
the problem is that recovery is so difficult to pin down as
what it actually is. I'm convinced that some people think
recovery means there's so many of them running around you can't
avoid stepping on them, and that's clearly not in a realistic
definition.
It is so different from species to species and from
location to location. In San Diego County, which is one of the
places I work, we have a plant called the ``otimesamint,''
which is a very narrow endemic species. It is restricted to a
very narrow area and a narrow habitat type. There are three
known locations of this plant species. They are all three
protected under the conservation plan. Is that recovery? You
could argue one way or the other about that.
On the other hand, one of the species that is addressed
under the conservation plan is the golden eagle, and San Diego
County represents a tiny portion of the range of the Golden
Eagle. I think there are five or six pairs that nest in the
county. And those locations of the nests and the habitats
surrounding them are protected, as well as the natural
community and landscape that supports them. Is that a
contribution to recovery?
I think it is difficult to pin that down as a bright line
that we would then judge the adequacy of HCPs on. On the other
hand, I think it is important that we look at actions that are
simply not holding actions--actions that don't just say, ``Are
we keeping the ball from rolling further down the hill,'' but
actually making a contribution.
And, as Greg said, apportionment of that responsibility is
an essential part of that equation, and that's not a scientific
question at all.
Senator Lautenberg. Mr. Chairman, I've taken more than my
share, and I appreciate it. Perhaps we'll have an opportunity
to submit a couple questions to the witnesses and would ask for
their cooperation in responding back to us as quickly as you
can.
I thank you very much.
Senator Crapo. Thank you very much, and you're welcome to
ask further questions if you have time.
Senator Lautenberg. I'll leave that to you, Mr. Chairman.
Senator Crapo. Mr. Courtney, my first question is to you.
Yesterday there was some discussion devoted to the concept of
scientific standards and guidelines and the need for those. Do
you believe that a set of scientific standards and guidelines
would improve the quality of HCPs and the science with regard
to HCPs?
Mr. Courtney. That's actually a fairly difficult question,
Senator.
I'm fairly cautious about the need for a prescriptive
approach with a cookbook and standards that we must all meet. I
think you've heard from many of the other witnesses that we
need flexibility in our approach and that each HCP is different
and the issues that it deals with are different.
I do, however, think that it has real value if we can find
and define our goals up front.
You've heard from some of the other witnesses on this panel
that having a clear ecosystem-wide program of where we are
going and a set of goals and, for instance, also the Fish and
Wildlife Service proposal to provide goals at the time of
listing, all those are positive steps, but I would be very
cautious about ideas that we would have to have a particular
sort of analysis or particular standard that we must meet in
every HCP. I find that hard to see how we could achieve that.
Senator Crapo. Thank you.
Mr. Hicks, the issue of trying to address both No Surprises
and adaptive management seems to raise some level of
contradiction, although there are those who believe that it can
be overcome. I think that Mr. Barry indicated he believed that
that was something that could be addressed.
How have you addressed those issues in the plan that you've
worked out?
Mr. Hicks. Mr. Chairman, I think that the term has been
used several times about the dynamic tension between the No
Surprises policy and adaptive management.
It is important to realize that--and I think really this
adaptive management, although it is viewed as learning by
doing, it is more of a classroom term, probably better
discussed in the classroom than practiced on the ground. It is
a very difficult thing to actually put in on the ground.
Within the context of HCPs, really adaptive management is
an agreement between the Services and the applicant whereby
management actions will be modified in response to new
information.
I view adaptive management as a way to address some
significant leaps of faith, if you will, in HCPs where there is
dependence on models or adoption of untested conservation
measures.
The policy may limit the amount of mitigation that can be
required of an applicant unless unforeseen circumstances occur,
but adaptive management provides the flexibility to deal with
that uncertainty within the sideboards of the No Surprises
policy.
So, as an example of what we've done in HCPs, for instance,
in our Cascades HCP, we used a model that I had developed to
help us predict how many owls might be--how many site centers
might occur in an area based on the configuration of habitat
now and in the future, so we used adaptive management to focus
our information-gathering, our monitoring to gather information
to see if the model was working and to set some sideboards upon
which how far the model should depart or could depart from our
predictions before we had to sit down with the Fish and
Wildlife Service and decide how do we respond to information
that the model might not be accurately predicting occupancy of
landscape habitat by owls.
So we set some sideboards there to help with that, and it
helps drive our monitoring program to gather information to get
us to that end point.
Senator Crapo. Thank you.
Mr. O'Connell, you suggested in your testimony developing
an endangered species problem-solving fund that would provide a
strong incentive to private landowners to participate in the
objectives of the ESA. Could you elaborate on that a little
bit? How would that fund be created and used? What do you have
in mind there?
Mr. O'Connell. Yes. Thank you for asking that, because I
wasn't able to get to that.
One of the things that becomes clear when you look at when
HCPs are initiated, which is with impacts imminent and with
listed species which are pretty much at the brink of
extinction, is that what the ESA requires in terms of
conservation for those species and what is necessary to recover
them, there's a gap between that. And part of the discussion
over recovery is who is responsible for filling that gap.
Senator Crapo. Right.
Mr. O'Connell. I think it is very important that we
recognize that, depending on--no matter what the assignment of
responsibility is, there is going to be a public responsibility
for part of that. We don't currently have a mechanism to fund
the type of conservation that would improve habitat
conservation plans from a conservation standpoint and be a fair
allocation of resources from the private sector.
So I would envision a fund like that as having benefits on
both sides. That's why I was talking about it being a problem-
solving fund. It would help habitat conservation plans become a
better conservation tool, contribute more to the recovery goals
of the ESA, but also make them more workable and doable for
private landowners and then therefore make them a better
incentive there.
Senator Crapo. Thank you.
And I'm not going to miss you, Ms. Hood, but I want to skip
to Mr. Thomas here, first.
Mr. Thomas, in the context of this dynamic tension between
adaptive management and the No Surprises policy and the
proposals that are being talked about as to who is responsible
for this, to make up the difference when adaptive management
shows that more needs to be done, I'm aware that--at least it
is my understanding that in some of your writings you have been
critical of the No Surprises guarantee. Is that correct? If so,
how would you approach the issue?
Mr. Thomas. In my view, the way to reconcile the need for
regulatory assurances with the adaptive management discipline
is by converting the concept of No Surprises to a concept of no
uncompensated surprises.
The fundamental problem with No Surprises is that it flies
in the face of biological reality, and it is not helpful, or at
least it is not a sufficient answer to say we will negotiate
the potential adjustments up front as a part of the initial
deal.
Well, when these deals last for decades and the data is as
inconclusive as it often is, that isn't very satisfying. What
would be far more satisfying would be an acknowledgement that
we don't know enough to regulate for decades. We simply don't.
And HCPs are nothing better than a set of testable hypotheses
that need to be tested. And we need to abide by the scientific
verdict that that testing will provide. And if that verdict is
that adjustments in the fundamental deal are needed to
accomplish the goals of the Act, then the question of
apportioning that burden as between the rights holder and the
public is a legitimate question.
So, you know, what it seems to me can be negotiated up
front is that apportionment of financial responsibility for
adjustments if they prove to be needed, but the idea that
somehow or another there are foreseen and unforeseen
circumstances up front when you're dealing with plans of this
nature is, frankly, wishful thinking, and that's the problem
with the--it's too rigid in that respect.
Senator Crapo. So if I understand you right, you're
proposing that, in one way or another--I was interested by your
concept of no uncompensated----
Mr. Thomas. Right.
Senator Crapo [continuing]. Surprises. So we identify up
front that there almost certainly will be adjustments that need
to be made, but the landowner is able to know up front what his
or her responsibility economically will be if those
developments take place.
Mr. Thomas. Indeed. I mean, we analogize it to insurance.
It is risk insurance. If there is a fund that could absorb
unanticipated risks without that falling on the shoulders of
the private rights holder, everybody is better off.
And, incidentally, in exploring this concept with
developers, one of the interesting potentials here is that the
cost of debt service for developments where there is an
appreciable risk of species complication, that cost can
probably be reduced through this kind of an insurance concept.
That means that, in a sense, a portion of the premiums for
such an insurance can be defrayed through savings in the
development scheme.
So we tend to think this is a concept that has a lot of
potential to it and needs to be examined.
Senator Crapo. Before I go to Ms. Hood, did you want to say
something, Dr. Courtney?
Mr. Courtney. Yes. I would like to comment on that.
I'm sure a lot of permit applicants would welcome the idea
of having some insurance about what would happen if unforeseen
circumstances did come along, but I would like to say, just
coming from a purely scientific approach, that I think the
notion of No Surprises precludes adaptive management should be
knocked on the head, that we clearly do adopt many adaptive
processes in HCPs, and sometimes the processes--the management
changes that come into place can be quite dramatic.
For instance, in the Pacific Lumber HCP for spotted owls,
it is a performance-based standard, and if the spotted owls
actually decline, the HCP moves to a no-take situation. That
is, the company is not allowed to do anything which would harm
the owl any further--that is, no more timber harvest. That's a
fairly substantive change which is written into the plan.
So adaptive management is really and the limits to adaptive
management can often be seen as a test of our scientific
ingenuity, and if we do the job right we can probably cover
many of the circumstances that can be foreseen.
Senator Crapo. Thank you.
And, Ms. Hood, you indicated in your testimony--I think you
used the word ``earned assurances'' as opposed to ``no
surprises.''
Ms. Hood. Yes.
Senator Crapo. Would you like to comment on this entire
question in that context?
Ms. Hood. Yes. I think, like I said in my testimony, I
think part of the problem that we've had with the No Surprises
assurances is that they are granted as part of the normal
approval process with no additional requirements associated
with them. So, as we've seen from the other witnesses today,
part of those approval standards can be--the bottom line can be
quite low at times.
If minimization and mitigation to the maximum extent
practicable does not mean recovery in some cases, then that can
be a problem for HCPs. And also the jeopardy standard is also
not a strong standard for HCPs, as well. So what we'd like to
see is earned assurances that are granted, as an incentive to
go beyond what was required previously to earn those assurances
through building in good adaptive management programs, like Dr.
Courtney said, ``Sometimes these adaptive management programs
can be quite complex and costly, and perhaps they should be
rewarded with assurances for incorporating such adaptive
management.''
But right now we are in the situation where these
assurances are granted and landowners are basically asked to
incorporate these adaptive management flexibility programs.
What we'd like to see is assurances be more of an incentive,
and also to have some kind of economic mechanism whereby, when
assurances are granted and we do need to step in and provide
additional mitigation for impacts that were not anticipated,
that there is some kind of economic mechanism for paying for
some of that.
And I would like to go back to one example where, over the
decades, our scientific understanding has changed very rapidly
about endangered species management. If we look back on the San
Bruno Mountain HCP, the crafters of that HCP envisioned that
for substantial areas on San Bruno Mountain, they wanted to
clear out some of the exotic vegetation and restore some of the
natural habitat for the butterflies that are imperiled on the
mountain.
Under that program, it has been much more difficult than
they thought it would be to actually remove that exotic
vegetation and restore that habitat, and it has been a lot more
costly than they had anticipated, as well.
So I think that, even going back to the first HCP, we can
see that over time we need to be able to adjust the amount of
money available and how that money is distributed to
management.
Senator Crapo. Mr. Hicks, did you want to comment on that?
Mr. Hicks. Yes, Senator.
In the practical discussions of development of an HCP--and
I bring to case the native fish HCP, which we've been working
on now for a couple of years with the agencies--really a major
sort of rule of the road is that you either front-end load a
lot of science and information on the species you would like to
have addressed in the plan at the beginning, or else you'd
better be prepared to be doing a lot of adaptive management and
monitoring at the back end of the plan in order to verify or
prove out some of the notions and hypotheses you have to begin
with.
This has really been a major counsel that I've given to our
company, and a way that landowners should prepare to do HCPs is
do as much on the front end science as you can so that you
don't have to do as much on the back end to assure the agencies
and the public that you know what you're doing.
You won't be able to escape that. There is an obligation
now, and it comes up all the time in discussion with the
Services. It is: What sorts of issues should we put into that
adaptive management corral and address at the end of the day?
And usually, at least in my situation, one of the final stages
of the HCP development we are in right now with the Services is
that adaptive management program, because at this point we've
discussed many of the technical issues. We've decided which
ones we have confidence in and which ones we don't, and so
adaptive management is usually that last thing and should be
that last thing you look at so that you make sure that those
questions are answered, especially in the case of some
applicants where they may not have a lot of information at the
front end.
And, finally, one way to address the issue of risk is to
shorten the permit period. For a landowner, if the agencies are
uncomfortable with the approach he is taking, then, instead of
it being a 30-year plan, it may be a 10-year plan at that end,
so there are some ways in the process to compensate for that
issue.
Senator Crapo. Thank you.
And did anybody else want to add anything else to this
issue?
Mr. O'Connell.
Mr. O'Connell. Yes. I wanted to--I'm sorry, I'll save it
for another issue. That's OK. It's not on this particular----
Senator Crapo. Go ahead if you've got something on your
mind.
Mr. O'Connell. Yes. Actually, I did want to talk about one
thing that I do feel is important, which is the small landowner
issue that came up earlier.
Senator Crapo. Yes.
Mr. O'Connell. A question that is frequently asked when we
talk about regional-scale visions and regional-scale planning
is: How is the small landowner affected there? I think it is
important to mention that.
And we found that, in fact, regional conservation plans, as
opposed to individual section 10 permits for small landowners,
actually provide an economy of scale that eases that burden for
small landowners. Most of the small landowner issues that arise
are in urbanizing areas. That's where the parcels are smaller.
And, in fact, in most of those areas local governments have
been able to take on the burden of implementing the planning
program and the conservation program, and that then provides a
secondary benefit to small landowners in that they may be able
to develop their entire parcel or they may be able to have
their entire parcel bought if their entire parcel is one that--
--
Senator Crapo. So a small landowner, if there was a
regional plan in place, could just make sure that they were
complying with the regional plan and take the benefit of the
plan?
Mr. O'Connell. That is exactly correct. And it ranges from
the extreme of their entire parcel is important for
conservation, and so therefore it can be purchased at fair
market value, or their entire parcel does not fit into a
regionally sound scientific conservation strategy and therefore
it can be entirely developed, whereas if you were focusing on
it as an ownership, exclusively, without that regional context,
you may say, ``Well, your quarter acre, you have to do
something on that,'' when, in fact, that quarter acre and the
compensation for it may have very little consequence. So that's
an economy of scale that is important for small landowners.
Senator Crapo. Dr. Courtney.
Mr. Courtney. I'd just like to followup on what Mike just
said, and to expand also to address some of the issues about
adaptive management and No Surprises in the context of the
small landowner, because on a small HCP the potential for
adaptive management is really non-existent.
Something that came up out of our workshop in Santa Barbara
was the notion that adaptive management sometimes operates on
different scales to that of the individual HCP, and so, from a
scientific point of view, we are allowed to learn from
experience, but that doesn't factor into the small HCPs which
are a done deal.
For that to work--and so the particular message here is
that adaptive management in this context is no conflict at all
with No Surprises, but for that to work, what you need is
monitoring and you need a regional perspective, a regional
plan.
You've heard from many of the witnesses, and I think we
would all support the notion of regional planning which
included a coordination of a monitoring program which is yet to
happen in most circumstances, and most scientists I think would
support such a thing.
Mr. O'Connell. I'd encourage you to take a further look at
what we've been working on in southern California because it
does try to take these concepts, experiment with these concepts
a step further on just those issues.
Senator Crapo. I want to thank the panel for the testimony
you've presented. We're running into some time constraints
here, and so I'm not going to be able to ask any more of my
questions right now. I've got pages and pages of questions
here.
The testimony we've heard over the last 2 days has helped
me to identify a lot of not only issue areas but solution areas
and potentials for finding the common ground between the
competing concerns that I think could help us move forward and
improve the HCP process.
As I said, I do have a lot more questions, and I'd like to
be able to spend more time here but can't, and in that regard I
would like to submit questions to each of you, and I believe
you'll probably get questions from some of the other Senators,
as well. We'd ask that you respond to those.
[The information referred to follows:]
Senator Crapo. The committee is trying to develop a
solution here and find something that can avoid the traditional
battles we have over endangered species reform actions and form
the basis of a positive step forward that can be achieved in
the context of what is politically doable at this point in
time, and I think that a lot of ideas that have been presented
in your testimony here today, as well as in your written
testimony, are good candidates for that type of reform.
So if you would be willing, I will submit a number of
questions to each of you, as well as ask you to be available
for some of the other Members who were not able to make it here
because of their schedules.
Without anything further, this hearing is adjourned and all
witnesses are thanked for their attention and their efforts.
[Whereupon, at 11:36 a.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Donald J. Barry, Assistant Secretary, Fish and Wildlife
and Parks, Department of the Interior
introduction
Mr. Chairman and Members of the Subcommittee, I am pleased to be
here today to talk about habitat conservation plans (HCPs). The Fish
and Wildlife Service and the National Marine Fisheries Service have
been using these plans as an important tool to conserve and protect
threatened and endangered species. My testimony will discuss the
science used in HCPs and provide specific examples. A list of all of
the HCPs approved by the Service as of July 16, 1999 is attached.
habitat conservation plans represent an innovative and successful
permit program
HCPs are authorized by Section 10(a)(1)(B) of the Endangered
Species Act (ESA) to allow the incidental take of listed species in the
course of an otherwise lawful activity. The Service has experienced
tremendous growth in the demand for HCPs in recent years. You only need
to look back to 1992 to see how different the landscape has become. In
1992, 14 HCPs had been approved. As of today, we have 246 HCPs covering
more than 11 million acres of land, providing conservation for
approximately 200 listed species. More than 200 HCPs are in some stage
of development. Numerous success stories are contained in the HCPs
already approved, and we are currently working on a number of strong
partnerships with local governments and the private sector through the
HCP process.
The HCPs that are in place today, and the demand for additional
HCPs, clearly show a change in how Federal agencies work with private
parties for species conservation. We have become partners with
landowners. Local governments have incorporated HCP development into
their planning process for growth in an unprecedented manner. The HCP
process also can provide flexibility for landowners by including
unlisted species, which enables the process to employ an ecosystem and
landscape-level approach. This proactive approach can reduce future
conflicts and may even preclude the listing of species, furthering the
purposes of the ESA.
Except for the need for additional funding, the Service is very
pleased with where the program is today. The quality of approved HCPs
is constantly improving, and we are making continuous strides in
endangered species conservation through the use of this tool. In
collaboration with the National Marine Fisheries Service (NMFS), the
Service has made many refinements to the process in recent years. These
refinements, as well as the collective knowledge gained from past
years, are available to the public in a very useful HCP Handbook,
issued jointly by the Service and NMFS in November 1996.
The major strength of the HCP program is that it is a national
scale program that readily allows for the development of local
solutions to wildlife conservation instead of a one size fits all top
down regulation. Applicants can explore different methods of achieving
compliance with the ESA and choose the method that best suits them. The
Service intends to continue to support this flexibility, and we expect
that our increased emphasis on achieving biological goals over specific
prescriptive measures will further applicants' flexibility.
Without a doubt, the most frustrating issue with respect to HCPs is
that this innovative, collaborative program is not receiving the
necessary funding as set forth in Administration requests. HCPs also
require money for implementation and monitoring to determine whether
the biological goals are being achieved. The President's budget request
for fiscal year 2000 clearly recognizes this reality. We asked for an
increase specifically to address HCP development, monitoring and
implementation in the fiscal year 2000 budget. However, the Senate did
not fund our request. Without increased funding, we will not be able to
adequately monitor HCPs to the extent desired by both supporters and
critics of the HCP program. We encourage the members of the
Subcommittee to support the President's fiscal year 2000 budget request
for the endangered species program including the requested increases
for HCPs. In the absence of adequate funding, some excellent
opportunities may be lost or at least greatly delayed. A number of
communities, such as Santa Cruz County, California, Laramie County,
Wyoming, and the wheat growers in Douglas County, Washington, are eager
to proceed with development of their HCPs and have many good ideas but
lack the initial funding to get the process underway. As the demand
increases, we want to approve more HCPs that incorporate sound science,
partner with public and private parties, and create win-win solutions
for species conservation and development.
habitat conservation plans are working well
In general, HCPs that are currently in operation are working quite
well. First, the permitters have displayed a high level of commitment
to and compliance with their HCPs. In fact, many permitters have shown
enthusiasm in sharing their early successes with the Service and the
public. Second, although the program is young, tangible results are
already apparent in many approved HCPs. The following examples
represent just a few of the HCPs that are accomplishing their
objectives as expected.
Red-cockaded woodpeckers
The Service's red-cockaded woodpecker (RCW) program provides a
showcase of how Section 7 and Section 10 work together across the
landscape to achieve conservation. For private lands, the program
emphasizes implementation of novel and flexible conservation
strategies, including the HCP process and Safe Harbor agreements, both
of which are contributing significantly to species recovery objectives.
RCW HCPs provide an excellent example of the ability of HCPs to
involve a wide array of applicants, both large and small, who are
interested in finding solutions to endangered species land management
challenges. Past and current applicants include large industrial forest
landowners, small ``mom and pop'' woodlot owners, development
corporations, quail plantation owners, non-industrial forest
landowners, and State wildlife agencies. The 12 non-industrial timber
RCW HCPs that have been completed to date and the five currently being
developed exemplify the versatility and appropriateness of the HCP
process. The 12 permits that have been issued in seven states
authorized the incidental take of 29 RCW groups; the mitigation for
this incidental take involved the potential establishment of 54 new RCW
groups on other private and/or public properties. Tangible conservation
benefits delivered by HCPs include: (1) increasing the size and
therefore the demographic viability of recovery or support populations,
(2) stabilizing and/or maintaining small, at-risk recovery or support
populations, and (3) rescuing very small, demographically isolated
(i.e., biologically doomed) RCW groups from fragmented landscapes.
Seven of the 12 HCPs have been successfully completed with all
mitigation requirements being met and the other five are in progress
and are fully expected to succeed.
With respect to industrial timber lands, the Service has entered
into conservation partnerships with nine corporations (Georgia-Pacific,
Hancock Timber Resource Group, Champion International, Westvaco,
Weyerhaeuser, Potlach, International Paper, Norfolk Southern Railroad,
and Temple Inland). In total, these corporations have established
115,560 acres as RCW management areas and are protecting 309 RCW
groups, with the goal of raising this number to 338-RCW groups.
The Safe Harbor concept originated in the North Carolina Sandhills
as an innovative response to a decline in available unoccupied RCW
habitat. In order to encourage landowners to manage their land in a way
that benefits RCWs, the Service announced the Safe Harbor policy, which
provides assurances that RCWs attracted to property as a result of
active management for the species will not cause new restrictions to
attach to that property.
Safe Harbor effectively eliminates the regulatory disincentive that
is normally associated with attracting listed species to new lands and,
thus far has proven to be successful in attracting landowners who
otherwise may not participate in species protection programs. As of
October 1, 1998, the number of acres involved in the North Carolina
Sandhills Safe Harbor program included: 19,023 acres enrolled under 23
agreements; 6,380 acres under 4 agreements awaiting landowner
signature; and, 7,174 acres under 16 agreements currently in
preparation. The 23 currently enrolled parcels provide nesting and
foraging habitat for 46 groups of red-cockaded woodpeckers. Interest in
the Sandhills Safe Harbor Program has far exceeded our expectations. In
less than 3 years, 43 landowners have been enrolled or are in the
process of enrolling in this program; a total of 32,577 acres will be
enrolled by the end of fiscal year 2000. The size of currently enrolled
properties ranges from 3 to 3,300 acres. By reducing and/or eliminating
regulatory disincentives, Safe Harbor has provided an effective way to
increase available RCW habitat and population numbers while providing
landowners with land management flexibility. The program has involved a
diversity of landowners. They include golf course owners, nonindustrial
forest landowners, horse farms, and small property landowners.
In response to the overwhelming success of Safe Harbor in the
Sandhills of North Carolina, the Service has issued permits to states
that provides landscape level conservation. To date, two Safe Harbor
permits have been issued, both in 1998; one to the South Carolina
Department of Natural Resources (SCDNR) and the other to Texas Parks
and Wildlife Department (TPWD). The results have been outstanding. As
of June 1999, South Carolina has enrolled 16 landowners with 72,223
acres, harboring 123 RCW groups; nine landowners have pending
agreements which will add another 31,496 acres and 41 RCW groups to the
program. Most of the properties enrolled in South Carolina are quail
hunting plantations. In Texas, 2 landowners (both industrial forest
landowners) have enrolled 2,285,260 acres (7,000 dedicated to RCW
management) and 17 RCW groups in the program. In cooperation with the
Service and other partners, the State wildlife agencies in Georgia,
Alabama, and Louisiana have completed final draft statewide RCW Safe
Harbor plans for their states. The Service is currently in discussions
with the states of Virginia, Florida, North Carolina, and Mississippi
regarding development of statewide Safe Harbor programs for RCWs.
The success of the Service's comprehensive private lands strategy
has resulted in significant improvements in the status of the species
since the early 1990's. For example, many Federal populations are now
increasing or stabilized, 100,000's of acres of private lands are
``officially'' enrolled in RCW conservation (compared to none in 1990),
and many State properties are developing RCW conservation/management
plans. In 1995, based on a comprehensive range wide survey, the Service
estimated the RCW population at 4,694 groups. In 1998, using the same
survey methodologies, the Service estimated the range wide population
at 4,950 groups; this-increasing population trend is expected to
continue and indeed accelerate. The foundation of the entire RCW
program is based on strong and meaningful partnerships between the
private, State and Federal sectors. These partnerships have the common
goals of mutual respect, trust, honesty, and the best available
science. The highly successful application of the Service's RCW private
lands strategy has clearly shown that Section 10 of the ESA can make
integration of wildlife conservation with the interests and objectives
of private landowners a reality.
Plum Creek Timber I-90 HCP
The Plum Creek Timber Company I-90 HCP in Washington State is
providing conservation benefits for 11 listed species and numerous
unlisted species through ecosystem management efforts across 170,000
acres. The HCP was designed to support and complement the conservation
efforts of the Northwest Forest Plan on adjacent Federal lands.
Large riparian buffers, similar to those identified in the
Northwest Forest Plan, provide protection for bull trout and anadromous
salmon by reducing sedimentation, maintaining cool temperatures, and
providing large woody debris for pool formation. The HCP provides
habitat for nesting owl pairs currently in an area of concern for
north-south connectivity in the Cascades. Surveys required under the
HCP have led to the discovery of two species that were not known to
occur in these watersheds: the marbled murrelet and the Larch Mountain
salamander.
This HCP is science-based and that science was documented in the 13
peer-reviewed technical papers that accompanied the HCP as it underwent
public comment. Significant amounts of new information were gathered
during the development of the 13 technical papers. For instance,
reproduction and survival information since 1993 is now available for
almost every owl pair in the planning area. We expect that the first
monitoring and research progress report, due in December, will include
updates of habitat inventory information, plus progress reports of the
avian research being done in conjunction with the University of
Washington, and status of research design for the amphibian research
projects.
Adaptive management is a central concept of the Plum Creek I-90 HCP
and is explicitly built into the strategies for conserving riparian
areas, spotted owls, and amphibians. The parts of the HCP containing
the greatest amount of scientific uncertainty have the most explicit
adaptive management provisions associated with them. Adaptive
management allows for greater flexibility and increases in protection
when resources need the added protection. For instance, if watershed
analysis indicates that riparian buffers need to be wider, then Plum
Creek has agreed to be bound by the science and will provide wider
buffers.
Plum Creek takes pride in their HCP and is fully achieving or
exceeding the level of species protection envisioned during development
of the HCP. Pre-harvest reviews have been conducted with State
agencies, Tribes, and environmental groups. Minor modifications have
been made to the satisfaction of both Plum Creek, the Service, and
NMFS. The Services and Plum Creek are maintaining a close working
relationship with efficient communications.
Metro-Bakersfield HCP
Approved in August 1994, Metro-Bakersfield HCP addresses urban
development and endangered species conservation. The HCP covers 261,000
acres surrounding Bakersfield, California, in the southern San Joaquin
Valley. The permit covers 18 species (4 listed animals, 5 listed
plants, 3 unlisted animals, and 6 unlisted plants).
Through March 1999, the Metro-Bakersfield HCP Implementation Trust
has purchased 4,093 acres of habitat which has been dedicated to
endangered species conservation and provided endowment funds for their
management. The lands purchased are consistent with the habitat
protection objectives of the ``Recovery Plan for Upland Species of the
San Joaquin Valley, California.'' The purchased lands are primarily in
areas identified as important core population areas or as important for
maintaining connectivity of those populations. One of the most
significant benefits has been that the public and the building industry
now realize that development can proceed along with endangered species
conservation. The development community, in particular, likes the
certainty and timeliness of the process. By adopting the process, we
can achieve conservation for these species on private lands that may
otherwise not occur.
Small Landowner HCP
The HCP process also serves small landowners. One owner of
approximately 80 acres of forest land in Monroe County, Alabama,
developed an HCP with the Service in 1994. This landowner sought an
incidental take permit from the Service for the threatened Red Hills
salamander in order to selectively harvest pine timber from portions of
her land. This HCP met the goals of the landowner and protected the Red
Hills Salamander by: (1) allowing timber revenue to be generated from
the land while continuing to protect habitat for the species; (2)
eliminating or minimizing disturbance (cutting) within preferred and
marginal habitat for the species; (3) limiting the use of chemicals
within the marginal habitat zone; and (4) requiring certification and
the conservation briefing of loggers prior to conducting logging
activities that may result in take of the species. This HCP provides
for conservation of forest habitat above that provided by Alabama Best
Management Practices (BMP) for logging. In addition, it provides for
certification and education of loggers on ways to minimize impacts
beyond those identified by Alabama BMPs. The HCP will also protect
currently suitable habitat for the species and allow for further study.
science and scientific uncertainty in habitat conservation plans
We cannot conserve our nation's threatened and endangered species
on Federal lands alone. Therefore, it has been this Administration's
priority in shaping ESA policy to provide incentives to conserve
species on non-Federal lands. The HCP program has always recognized
that there is a degree of uncertainty in conservation biology. The
first HCP, San Bruno Mountain, incorporated approaches for addressing
unexpected changes. The HCP program subsequently developed into an
adaptable process for many different situations to address varied
species needs and activity impacts. The HCP program is a versatile
program that allows applicants to create plans that fit their needs as
well as the conservation needs of species.
When developing an HCP, the Service is required to use the best
available scientific information. Such data come from a variety of
sources: scientific literature and peer-reviewed publications, inhouse
expertise, other State or Federal agencies, academia, and non-
governmental organizations, to name a few. For listed species, the
Service can draw upon a number of existing information sources, all of
which have gone through peer and public review. ESA listing packages
are used to gain further species-specific biological information, and
where possible, the Service will draw upon recovery plans to identify
conservation and monitoring measures and objectives for listed species.
HCPs are designed to minimize and mitigate the impacts to the species
under consideration in the HCP as well as ensure that the permitted
activity does not appreciably reduce the likelihood of survival and
recovery of the species. Determining whether an HCP meets these
criteria is based on a biological analysis using the data that are
available.
Information used in HCPs can range from factual information such as
baseline data and survey results, to complex research and adaptive
management, based on ecological theory and models. For example, impact
and take analyses of covered species can cover a wide spectrum of
scientific issues: population distribution and density; meta-population
dynamics; net reproductive success; population viability analyses;
pollution; and habitat fragmentation, among others. Likewise,
mitigation and monitoring strategies may look at additional factors
such as the impact of vegetation successional stages on the covered
species, impacts from invasive alien species over time, and increased
predation and competition.
The biologists negotiating the HCPs are limited by the constraints
of time and information when analyzing impacts under the HCP but have
an array of approaches to choose from when developing mitigation and
monitoring strategies. Choosing the best approach to take is based upon
a risk analysis of the conservation program. The Service builds upon
the knowledge gained through implementation of each HCP to improve
future HCPs. For instance, in March of this year, the Service, along
with NMFS, released a draft five-point policy as an addendum to the HCP
Handbook. This draft addendum proposes pathways to accommodate
biological uncertainty while providing regulatory certainty to the
permitters.
Biological Goals and Objectives are the Scientific Foundation of HCPs
Biological goals and objectives are the broad guiding principles
for the operating conservation program of the HCP; they are the
rationale behind the minimization and mitigation strategies. HCPs have
always been designed to achieve a desired biological purpose or target,
yet they may have not specifically stated those biological goals or
objectives. In the future, we plan to better and more consistently
define the desired biological outcome. This rather simple concept of
biological goals and objectives facilitates communication between the
scientific community, the agencies, and the applicants by providing
direction and desired biological conditions and targets for the
development of these HCPs. The specification of the biological goals
and objectives of an HCP is perhaps an overlooked yet significant piece
to the HCP program.
There are two ways to base the design of an HCP: prescription-based
or results-based. A prescription-based HCP outlines a series of
specified tasks to be implemented; these tasks are designed to meet the
biological outcome. This type of HCP may be most appropriate for
smaller permits, particularly where the permitter does not have an on-
going management responsibility. A results-based HCP has greater
flexibility in its management, allowing the permittee greater latitude
to pick and choose among various conservation tools, so long as they
achieve the intended result (e.g., biological goal or objective),
especially if they have a long-term commitment to the conservation
program of the HCP. The Mid-Columbia Public Utility Districts' HCP is
an example of a results-based HCP. HCPs can also be a mix of the two
strategies, where the Service and the applicant determine the range of
acceptable and anticipated management adjustments necessary to respond
to new information. This process will enable the applicant to assess
the potential economic impacts of adjustments before agreeing to the
HCP while allowing for greater flexibility in the implementation of the
HCP in order to meet the biological goals and objectives of the plan.
Use of Adaptive Management to Deal with Uncertainty
Adaptive management refers to a structured process for learning by
doing. The ``structured'' portion of this definition is important for
two reasons. First, it becomes a formalized and mutually agreed upon
process for incorporating change--a feed-back loop into management.
Second, it defines in advance the sideboards within which the permittee
will be expected to operate, including any possible future adjustments
in the HCP's operating conservation program, in order to fulfill their
permit responsibilities. As applied to HCPs, it is a method for
addressing significant uncertainty in the conservation of a species
covered by an HCP. In an HCP, adaptive management is used for examining
alternative strategies for meeting measurable biological goals and
objectives through research and/or monitoring, and then, if necessary,
through the adjustment of future conservation management actions
according to what is learned. Adaptive management is necessary in HCPs
where there is either significant biological uncertainty or a
significant risk exists due to uncertainty about the impacts of the
activity and how we address those impacts.
Some people in the scientific community maintain that adaptive
management can only be appropriately done using a strict experimental
design, which would compare specific treatments to controls. While this
is certainly one ideal approach that could be utilized, we believe that
meaningful adaptive management can be done without this strict and
expensive adherence to standards of experimental design. Additionally,
we do not believe it to be appropriate to burden the landowner with
research that is not proportional to their activity. However, we can
incorporate flexibility into medium and small scale HCPs so as to
utilize the results of on-going research and monitoring programs in
other areas.
Often, there is a direct relationship between the level of
biological uncertainty for a covered species and the degree of risk
that an incidental take permit could pose for that species. In such
cases, the HCP may need to be relatively cautious initially with a
well-integrated monitoring program and adjusted later based on new
information. A practical adaptive management strategy of a long-term
HCP should include biological milestones that are reviewed at scheduled
intervals. If there is a relatively high degree of risk, early and
frequent milestones may need to be set and previously agreed upon
adjustments made accordingly.
Permit Duration Accounts for Implementation of Conservation Measures
The average duration of HCP incidental take permits issued to date
is 25 years; pending applications for incidental take permits currently
have an average requested duration of 30 years. Different permit
durations may be necessary or desirable to account for both the varying
biological impacts resulting from the proposed activity (e.g., long-
term chronic effects to a riparian zone resulting from timber rotations
and treatments versus short-term intensive effects from a real estate
subdivision build out), and the nature or scope of the permitted
activity and conservation program in the HCP (e.g., short-term housing
or commercial developments versus long-term sustainable forestry).
Longer permits ensure long-term commitments to the HCP and typically
include up-front contingency planning for changed circumstances to
allow appropriate changes in the conservation measures. By implementing
a long-term permit, the permittee takes on ownership of the
conservation measures within the HCP, a plus for species conservation.
Factors that are considered when determining permit duration
include the duration of the applicant's proposed activities and the
duration of expected positive or negative effects on the covered
species. For instance, if the permittee's action or the implementation
of their conservation measures occur over a long period of time, such
as timber harvest management, the permit would need to encompass that
same time period.
The Service will also consider the extent of information underlying
the HCP, the length of time necessary to implement and achieve the
benefits of the operating conservation program and the extent to which
the program incorporates adaptive management strategies.
No Surprises Assurances Stimulate Planning for Uncertainty
No Surprises Policy and HCP assurances were designed to be
incentives to rechannel habitat loss through the HCP permitting program
by offering regulatory certainty to non-Federal landowners in exchange
for a long-term commitment to species conservation. Essentially,
private landowners are assured that if ``unforeseen circumstances''
arise, the Service, or NMFS, will not require the commitment of
additional land, water or financial compensation or additional
restrictions on the use of land, water, or other natural resources
beyond the level initially agreed to in the HCP without the consent of
the permitter.
Given the significant increase in landowner interest in HCPs since
the development of the No Surprises Policy, the Service believes that
the Policy has accomplished one of its primary objectives--to act as a
catalyst for integrating endangered species conservation into day-to-
day management operations on non-Federal lands. No Surprises assurances
have also provided a catalyst for contingency planning within HCPs.
Most possible changes in circumstances during the course of an HCP can
reasonably be anticipated and planned for in the conservation plan.
Plans should describe the modifications in the project or activity that
will be implemented if these circumstances arise. Planning for changed
circumstances and adopting adaptive management strategies proactively
within the HCP will better serve the permittee and endangered species
conservation than a reactive ``band-aid'' fix later. Therefore, these
contingency plans and adaptive management strategies are part of the
deal and allow the Service and the permitter to adjust the conservation
measures if necessary.
conclusion
The HCP program has seen many changes since 1983. We have created a
conservation program that empowers the applicants to integrate
endangered species conservation into their activities while using the
best available science and approaches. The ideas that have been
generated have served to strengthened the HCP program. We remain
committed and open to learning from our experiences and considering new
ideas. As we look to the future of the HCP program, we see many more
success stories. However, it will not be easy to get there. As the
demand for HCPs increases and more HCPs are approved, providing careful
attention to each HCP will become more and more challenging. Challenges
facing the HCP program include: ensuring adequate implementation and
monitoring through increased landscape-level planning with inadequate
resources, developing partnerships with the scientific community to
better utilize their expertise in HCP development and implementation,
and continuing to learn and improve the program while still retaining
incentives to landowners to develop and implement conservation
measures.
Mr. Chairman, this concludes my testimony. I would be happy to
answer any questions that the Subcommittee may have.
__________
Statement of Monica Medina, General Counsel, National Oceanic and
Atmospheric Administration, Department of Commerce
Mr. Chairman, my name is Monica Medina, and I am General Counsel of
the National Oceanic and Atmospheric Administration (NOAA). Thank you
for the opportunity to testify on the science that serves as a basis
for Habitat Conservation Plans (HCPs) agreed to under the Endangered
Species Act (ESA).
the importance of hcps
NOAA is responsible for 52 species listed under the ESA, including
salmon, sea turtles, whales, dolphins, seals, and other species. The
breadth of our challenge in recovering these species is great, so we
cooperate with non-Federal landowners such as states, Tribes, counties,
and private entities to do this important job. For instance, we have
the challenge of ensuring the survival and recovery of salmon across a
geography that spans the Pacific coastline from the Canadian border to
Los Angeles. In addition, the highly migratory nature of Pacific salmon
places them in many areas in numerous states, impacting large numbers
of stakeholders, many of whom are private citizens who hold large
tracts of land valued as both commercial property and salmon habitat.
Long-term management of habitat, such as that done through HCPs
with non-Federal landowners, has proven to be the most effective means
of recovering species. HCPs are also a popular conservation tool for
both the private property owner and NOAA. So far, NOAA has issued only
2 incidental take permits associated with an HCP, but we are a party to
5 Implementing Agreements for HCPs issued by the Fish and Wildlife
Service (FWS), and are currently negotiating approximately 35
additional HCPs. All of the large-scale HCPs developed by NMFS concern
salmon. NOAA has issued joint guidance with the FWS on how to assist
applicants in developing HCPs. Our HCP handbook describes the
information we need to evaluate whether these plans will be effective
and accomplish their goal of minimizing and mitigating the effects of
taking threatened and endangered species. The Services assist the
applicant in exploring alternatives, and are flexible when prescribing
mitigation measures. We do not impose one-size-fits-all prescriptions
on applicants. When participants provide an unusual, but scientifically
credible analysis of effects, or a creative but effective solution for
mitigating the effects of incidental taking, we will seriously consider
their approach.
Flexible implementation of the ESA has become the hallmark of this
Administration's efforts to conserve species, and it is evidenced in
our draft 5-point policy with FWS, proposed last March. One of the
important aspects of this policy is adaptive management. Adaptive
management is an essential component of HCPs when there is significant
uncertainty or an information gap that poses a significant risk to the
species. Rather than delay the process while sufficient information is
gathered to predict the outcome accurately, the Services and applicants
jointly develop an adaptive management strategy, assuring all parties
of a suitable outcome. For example, a cautious management strategy
could be implemented initially, and through exploration of alternate
strategies with an appropriate monitoring program and feedback, the
permitted could demonstrate that a more relaxed management strategy is
appropriate as time goes on.
science
NOAA is required by the ESA to use the best available information
in making its determinations, including all HCP permit decisions. This
means that our agency is legally required to utilize the best available
science--data, analysis, models, and synthesis. Our scientists stay up-
to-date in their respective fields, and use state-of-the-art analytical
techniques and methods to assess and understand the species and
ecosystems to be managed under HCPs.
For example, in development of the aquatic management component of
a timber HCP, our biologists work closely with academic, state, tribal,
and local agency scientists to gather all relevant data for the
watershed, including hydrology, salmon population dynamics, sediment
dynamics, water quality, and forest successional structure. When
necessary, additional data is collected in the field to augment
existing information. Management goals and objectives are developed to
ensure healthy spawning grounds, good quality rearing habitat, suitable
temperatures, and safe fish passage conditions. The riparian corridor
flanking the river is managed to ensure that the stream channel is
maintained as a dynamic, natural system with intact physiological,
biological, and chemical processes.
However, it is not a simple matter to manage ecosystems across
large areas, particularly when this management includes significant
human alterations from resource extraction or infrastructure
development. We have solid, reliable, quantitative information on the
temperature, water flow, fish passage, and water quality needs of
salmon, but more subtle factors that may determine the long-term
success or failure of ecosystem and endangered species management are
only just beginning to be understood . New areas of scientific research
such as nutrient cycling, food chain dynamics, biodiversity, population
genetics, and climate change are at an emerging stage--many significant
new questions and concerns have been identified, but few practical
tools and methodologies have emerged.
Our scientists fully recognize this uncertainty, and our HCP
agreements are designed to manage biological risk in spite of the fact
that in many cases we are implementing new, landscape-scale, ecological
experiments. Where we have solid, quantitative information, such as the
temperature needs of juvenile salmon, we can set specific, quantitative
temperature targets that the management regime must achieve. In areas
where the science is less developed, HCPs typically include more
qualitative goals, such as a multi-tiered forest canopy with a diverse
age structure or maintenance of insect prey biodiversity.
Because HCPs are at the limits of our scientific capability and
knowledge, extensive monitoring and adaptive management strategies are
essential. By monitoring as many indicators of ecosystem and species
health as possible, we can adjust our management strategies as we
discover how the ecosystem responds to our management regimes, If we do
a good job of monitoring and assessing our management, we can learn
from the successes and failures of the preceding HCPs and apply that
new knowledge in new HCPs.
Our scientists work closely with their scientific peers in academia
and other agencies to review ecosystem management approaches. We
welcome scrutiny from the scientific community and the informed public
as this helps to ensure that the HCPs are of the highest quality. HCP
programs are subject to intense debate and review within the agencies,
as well as in professional conferences and peer-reviewed journal
articles. Furthermore, all HCPs must fully comply with the National
Environmental Policy Act (NEPA) and the ESA, which ensures ample review
and comment on all science and management approaches.
hcp successes
At this time, I would like to discuss some of our science-based
HCPs that incorporate the principles just mentioned.
The Mid-Columbia draft HCP, now ready for public review and comment
and expected to be signed this year, is an example of how NOAA is using
performance-based goals in addition to prescriptive measures. This HCP
is focused on improving survival of salmon migration through the Mid-
Columbia segment of the Columbia River near Wenatchee, Washington.
Historical fish losses at the Mid-Columbia dams have been significant--
an average of 15 percent loss of juvenile salmon per dam. The goal of
the HCP is no net impact to salmon from the three hydro-electric dams
and associated reservoirs operated by the two Public Utility Districts
(PUDs). The Federal and State agencies' fisheries experts agreed that a
maximum amount of unavoidable project mortality was 9 percent. Required
fish survivals are expressed in two ways--95 percent juvenile fish
passage at each dam, and 91 percent survival at each dam for both adult
and juvenile fish.
Specific methods to attain the 91 percent project survival were not
described, but would be left to the project operators for the first 5
years of the HCP (thereafter it is a joint process with the NMFS and
FWS). Studies to develop the fish-survival improvements will use the
best technology and methods available and review of study proposals
will be done collaboratively. In addition to the FWS and NMFS,
oversight will be provided by the parties to the negotiations--the
State agencies, local Tribes, and an environmental group.
Compensation for the 9 percent unavoidable fish loss will be met by
a combination of hatchery production (7 percent) and tributary
restoration (2 percent). A tributary habitat conservation fund
established by the PUDs would be managed collaboratively to identify,
design, construct, and monitor projects to increase natural fish
production in the four tributaries (Wenatchee, Entiat, Methow and
Okanogan rivers). The hatchery production would also be overseen by the
broader group and designed to help recover listed species. This effort
would be state-of-the-art in regards to ESA concerns (i.e., designed to
produce fish in a manner consistent with recovering listed plan species
and not deleteriously affecting other listed non-plan species such as
Snake River salmon). In addition, the HCP contains detailed schedules
and contingencies for every part of the agreement.
The Washington State Department of Natural Resources (WDNR) HCP was
signed by the FWS in January, 1997. NMFS signed the Implementing
Agreement at that time as it did not have any listed species covered by
the HCP; and then issued an incidental take permit in June, 1999 for
recently listed salmon and steelhead. The HCP area covers 1.4 million
acres of forest land in western WA and includes more than 133,000 acres
of streamsides and unstable slopes around small headwater streams. The
HCP employs a multi-disciplinary approach to forest landscape
management. A Science Team, drawn from research and management
scientists, was appointed by WDNR to assess conservation options for
key species of fish and wildlife. The scientific record includes
descriptive sections on species, habitats and potential impacts in the
HCP and related NEPA documents (draft and final Environmental Impact
Statements). In addition, there are published reports to the WDNR HCP
Science Team that evaluated the likely effectiveness of a range of
options for management of salmon, spotted owl, and marbeled murrelet
habitats. The reports describe and rank various ways to meet, for
example, the Science Team's objective to provide habitat that supports
viable and well-distributed populations of salmon. The WDNR HCP
includes several innovative features designed to advance the science of
forestry and landscape conservation. A large block of State forest
lands (264,000 acres, or almost 20 percent of the total plan area) is
set aside specifically for watershed-scale experimental forest
management. Another feature is validation monitoring that goes beyond
the required HCP monitoring for compliance and effectiveness. Key
assumptions about management measures will be tested with a variety of
methods, including long term paired-watershed studies.
Implementation of the Pacific Lumber HCP, issued in February, 1999
and covering 210,000 acres, has begun in earnest with review of timber
harvest plans and formalization of watershed analysis and monitoring
programs. The foundation of this plan rests upon watershed analysis,
which is the process used to tailor site-specific prescriptions to
conserve salmon on a watershed by watershed basis. This process entails
detailed scientific analysis of each watershed's unique physical and
biological characteristics and history of past natural and
anthropogenic disturbance. The analysis will address how forest
practices have resulted in changes in hydrology, riparian functions, or
sediment input to streams that have resulted in adverse impacts to fish
and fish habitat.
challenges ahead
We recognize the need to increase our science effort in support of
recovery planning, section 7 consultations, and HCP development. NOAA's
Pacific salmon expenditures in fiscal year 1999 are expected to be $23
million, but only approximately $8.3 million of this is being spent on
science. Only $3.3 million is funding risk assessment wherein NOAA
scientists do research on factors affecting survival of at-risk
salmonids, work on evaluating conservation measures and habitat
restoration efforts, and provide economic analyses. $3 million is
funding habitat assessment wherein NOAA scientists do research on
survival and productivity of salmon in freshwater, estuarine, and ocean
habitats. $2 million is funding salmon population dynamics research,
wherein NOAA scientists are analyzing stock abundance and distribution;
and are undertaking life history modeling, genetic studies, population
viability analyses, and population monitoring.
The NMFS fiscal year 2000 ESA salmon recovery budget initiative
requested $24.7 million in new funding to strengthen our scientific
capabilities. For example, $5 million of this funding would be used to
increase our ability to partner with local agencies and private
landowners in HCP development, and $4.45 million would be used to
increase our ability to properly implement and monitor HCPs once they
are developed. Related to this, $2.8 million would be used to improve
our ability to analyze and assess the cumulative effects and risks to
salmon populations caused by changes on a watershed scale. Also, $2.8
million would be used to develop recovery plans, and $2.2 million would
be used for new research on the factors influencing ocean and estuarine
survival of juvenile salmon. $1 million would be used to develop
quantitative links between habitat, human impacts, and salmon stock
productivity; and $1 million would allow NMFS scientists to work
closely with the Department of Agriculture and EPA on water quality
needs. Without these increased resources, the pace and scope of HCP
development will be greatly constrained.
conclusion
In conclusion, NOAA's HCP program is showing many benefits for non-
Federal landowners as well as Federal agencies; however, it is still a
work in progress. We are monitoring sites and adapting our management
to what we see occurring on the landscape. HCPs are one of the major
actions we are taking to meet the challenge of recovering salmon and
other endangered and threatened species. HCPs are not perfect, but are
a less confrontational and adversarial than our only alternative--
enforcing prohibitions on take under Section 9 of the ESA. We are doing
what we can in the HCP arena to recover salmon, and ensure that future
generations know of these magnificent fish.
Mr. Chairman, thank you for this opportunity to testify. I look
forward to answering any questions you may have.
__________
Statement of Lorin L. Hicks, Plum Creek Timber Company, Inc.
Good Morning Mr. Chairman and members of the Committee. I am Dr.
Lorin L. Hicks, Director of Fish and Wildlife Resources for Plum Creek
Timber Company, Inc. Plum Creek is the fifth largest private timberland
owner in the United States, with over 3.3 million acres in six states.
Owning this vast resource base of some of the world's most productive
timberlands allows our 2,400 employees to produce value-added forest
products to a variety of specialty markets. I have been a biologist for
Plum Creek and its predecessor companies for over 20 years.
But I am here today to talk about how important habitat
conservation planning is to our leadership in environmental forestry.
Habitat conservation planning promises to be the most exciting and
progressive conservation initiative attempted on nonFederal lands in
this country.
Plum Creek is no stranger to habitat conservation planning. Plum
Creek's Central Cascades HCP, a 50 year plan covering 285 species on
170,000 acres, was approved in 1996. We are currently working on
another, called the Native Fish HCP, covering I.7 million acres in
three northwest states. A third HCP, for red-cockaded woodpeckers in
the south, is under development with the USFWS. In 1995, we initiated
an 83,000-acre Grizzly Bear Conservation Agreement in Montana's Swan
Valley.
Since 1974, few issues have been surrounded with more controversy
than the Endangered Species Act. It is often criticized as unworkable
and characterized as ``iron fisted''. Regardless of its image, its
impact on landowners has been profound. My company, Plum Creek, is no
exception--our 3.3 million acres supports no less than 12 federally
listed species, and others such as salmon and lynx which have been
proposed for listing.
Ironically, the history of the ESA and Plum Creek have been
intertwined for many years. The listing of the grizzly bear in 1975
affected 1.1 million acres of Plum Creek land in the northern Rockies
and confused or confounded access across Federal lands to company
property for over a decade. The listing of the northern spotted owl in
1990 and subsequent Federal ``guidelines'' trapped over 77 percent of
Plum Creek's Cascade Region in 108 owl ``circles''. Indeed, with every
new listing, Plum Creek was skidding closer to becoming the ``poster
child'' for the taking of private lands. To quote Charles Beard, ``When
it is dark enough-you can see the stars''. For us the answer came with
Habitat Conservation Plans. With the advent and incentives of habitat
conservation plans, Plum Creek and the Federal Government have
accomplished a stunning turnaround and made a concrete contribution to
the conservation of endangered species.
This committee faces a critical question: Can HCPs continue to work
for landowners and for endangered species into the future? This hearing
hopefully will give the committee insights into the underlying science
and principles that drive HCPs.
Two of the fundamental foundations of HCPs are under great
pressure.
First the ``No Surprises'' policy, which is critical for landowners
to undertake an HCP, is being challenged. It provides the necessary
incentives for landowners to undertake the costly and resource
intensive process to complete a habitat plan. To ensure that the
program remains strong, we believe it should be codified.
Second, pressures mount to ``standardize'' HCPs, and compare them
to each other, with a tendency to use each one to ``raise the bar'' for
those which follow. In my opinion, this ``one size fits all'' approach
is precisely what has challenged the ESA since its inception and could
be the most important deterrent to the inclusion of small landowners to
the HCP program.
It's important to understand that HCPs are as different from one
another as landowners and land uses. They are as small as one home site
and as large as 7-million acres. They are as short in duration as one
construction season and as long as 100 years. They are as focused as a
single species and as expansive as hundreds of species. And
importantly, each landowner has a different incentive for entering this
voluntary process.
To help demonstrate this I have attached a new booklet just
produced by the Foundation for Habitat Conservation providing brief
case studies of 13 HCPs from around the country. These case studies
give better definition to my point that HCPs vary widely in scope and
intent, and I recommend this document to you for review. These examples
give credence to the notion that HCPs can be an effective tool for
conservation.
Plum Creek is a founding member of the Foundation for Habitat
Conservation. The nonprofit Foundation supports habitat conservation
plans and related voluntary private conservation efforts through
research, education and communication. The Foundation is committed to
``conservation that works,'' and to that end, brings together
advocates, experts and policymakers to work for creative, balanced and
effective approaches to habitat conservation. Current Foundation
members have HCPs conserving hundreds of species of animals and plants
on more than 800,000 acres of land.
Let's dispel the myth that HCPs are not based on science. When my
company, Plum Creek, created its first HCP, we took on a very complex
challenge. Not only did we have 4 listed species in our 170,000 acre
Cascades project area, but 281 other vertebrate species, some of which
would likely be listed within the next few years. Combine this with the
challenges of checkerboard ownership where every even-numbered square
mile section is managed by the Federal Government under their new
Northwest Forest Plan and you have a planning challenge of landscape
proportions. To meet this challenge, we assembled a team of scientists
representing company staff, independent consultants and academic
experts. We authored 13 technical reports covering every scientific
aspect from spotted owl biology to watershed analysis. We sought the
peer reviews of 47 outside scientists as well as State and Federal
agency inputs. As a result of these inputs, we made technical and
tactical changes to the plan. And additionally, we developed working
relationships with outside professionals that were invaluable and have
been maintained to this date.
Let's also dispel the myth that the public has no access or input
to HCPs. During the preparation of the Cascades HCP which took 2 years
and $2 million, we conducted over 50 briefings with outside groups and
agencies to discuss our findings and obtain additional advice and
input. During the public comment period, all HCP documents and
scientific reports were placed in 8 public libraries across the
planning area.
I have brought with me the major documents from Plum Creek's
Cascades HCP, completed in 1996. These documents include the final HCP,
the draft and final EIS, a compendium of the 13 peer-reviewed technical
reports, and a binder of decisionmaking documents completed by the U.S.
Fish and Wildlife Service and the National Marine Fisheries Service. We
continue to publish our scientific work for the HCP in technical
publications as this peer-reviewed article on spotted owl habitat in
this month's Journal of Forestry attests.
Today Plum Creek is nearing completion of a new HCP. This new Plan
focuses on 8 aquatic species, and covers 1.8 million acres of our lands
in Montana, Idaho and Washington. The company and the Services have
been working over 2 years on this plan, which will be the first HCP for
the Rocky Mountain region. To provide the scientific foundation for
this HCP, we assembled a team of 17 scientists that authored 13
technical reports spanning topics from fish biology to riparian habitat
modeling. These technical reports were peer-reviewed by 30 outside
scientists and agency specialists. We have made all the technical
reports and white papers for the Native Fish HCP available to all
interested parties on a CD, and have done so well in advance of the
public release of the HCP, which is scheduled for September 1. The good
news is that anyone can have access to the latest science and
technology used in the development of this HCP.
My point here it is to emphasize that for Plum Creek and other
applicants, the HCP process has been the principal catalyst for private
landowners to undertake unprecedented levels of scientific research and
public involvement. Each successful HCP is a scientific accomplishment.
And the science immediately becomes part of the public domain.
Let me give you some specific examples of public benefits from our
Cascades HCP which has been operating successfully for over 2 years.
Since its inception, we have discovered the presence of 2 species of
concern, the Larch Mountain Salamander and the marbled murrelet, which
were previously thought to be absent from our area. Moreover, habitat
management and research on the northern goshawk has been active in the
HCP area, despite the fact that the Fish and Wildlife Service decided
not to list the species last year. Additionally, Plum Creek is actively
pursuing a plan to reintroduce the bull trout, a newly listed Federal
species, to our lands in the HCP area, because the habitat is optimal,
and the company no longer fears the presence of a listed species on its
lands covered by the HCP.
Another aspect of good HCPs, essentially another way of relying on
good science, is to incorporate effective monitoring and adaptive
management. As a scientist, I always want more information. Adaptive
management is a challenging blend of rigorous science and practical
management designed to provide the basis for ``learning by doing''.
Adaptive management is more easily discussed in the classroom than done
on the ground.
Within the context of habitat conservation plans, adaptive
management represents an agreement between the Services and the
applicant whereby management actions will be modified in response to
new information. Adaptive management can be used to address significant
``leaps of faith'' in HCPs where there is dependence on models or
adoption of untested conservation measures. However, there is ``dynamic
tension'' between the implementation of adaptive management in HCPs and
adherence to the ``No Surprises'' policy that limits the amount of
additional mitigation that can be required of an applicant, unless
unforeseen circumstances occur. Adaptive management provides the
flexibility to deal with uncertainty within the sideboards of the
recently revised ``No Surprises'' policy.
Ultimately, good HCPs come from good science and good motives.
Neither lofty policy objectives nor idealized public participation
should overtake the science. Federal agencies must be encouraged and
enabled to make sound, prompt, scientifically based decisions that
allow land owners a fair, fast path to conservation, underlain by
dependable safeguards for both the private and the public interest.
Mr. Chairman, these HCPs are not only science plans but also
business plans which commit millions of dollars of a companies assets
in a binding agreement with the Federal Government. In the Pacific
Northwest, the stakes are high for both conservation and shareholder
value in private timberlands. The consequences of failure are so
ominous for both interests that careful evaluation of the economic and
ecologic ramifications are essential to successful completion of HCPs.
``Guesswork'' is not an acceptable alternative for either the Services
or applicants.
Nor should we delay or defer essential conservation simply because
we are afraid to try. Adaptive management provides the ``safety net''
for HCPs as well as the rules of the road for acceptably making ``mid-
course corrections'' as new information and insight warrants.
As a major landowner and one committed to the highest possible
environmental standards, we anticipate and try to lead in these areas.
For example, we understood the concerns raised over the last several
years that citizens and interest groups sought more access to the
process of creating HCPs. We believe that landowners must remain in the
driver's seat as to whether and how to build an HCP. In assembling our
Native Fish HCP, we anticipated the Department of Interior's new 5-
point plan setting new guidelines for HCPs, and have fully complied
with it in advance, especially as it pertains to public involvement.
As enthusiastic as we are about HCPs, the process is not without
its faults. Since our first foray into HCPs, we have noted some
significant shifts in policy and practice. One downstream effect of the
5 points policy has been the requirement of the Services to more
thoroughly analyze the ``effects'' of adding multiple species to the
HCP, resulting in deletion of conservation measures for lesser known
species because the Services lack the information needed to complete
their new requirements. This creates a major obstacle for completion of
multispecies plans.
There is a need for the Services to commit necessary resources and
personnel to the development of HCPs from beginning to end, a period
often as long as 2 years. Far too often, we experience shifts in key
agency staff and biologists whereby professional experience is lost and
continuity in plan development is broken.
Once the majority of the scientific content of the plan has been
completed, we have also experienced an excessive focus on relatively
minor technical details. These are often speculative or hypothetical
issues that are unproven in the literature, but for which there are
strong emotional concerns. In other words, with 95 percent of the
scientific work completed, most the debate centers on the remaining 5
percent, creating unnecessary delays.
As we near completion of the Native Fish HCP, we are again reminded
of the duplicative nature of the HCP and NEPA processes. The HCP is by
definition a mitigation plan for the potential impact of lawful
operations on listed species and their habitats. The NEPA process also
requires a similar assessment of the HCP and management alternatives.
Not only does this require the added expense and resources to duplicate
work already done, but requires additional review and response by the
Services.
As you are aware, many of the HCPs being completed in the west
require both the US Fish and Wildlife Service and the National Marine
Fisheries Service to work with the applicant and approve the final
plan. Despite their efforts, these two agencies do not work in synch.
The agencies provide varying levels of technical support to applicants.
The combined effect of this lack of interagency coordination is further
time delays to the applicant.
Mr. Chairman I thank you for the opportunity to testify before you
today. The 2 days of testimony should provide the committee with a
better understanding of the complexities of HCPs. I hope my testimony
has given you an appreciation of the strategic value of HCPs for both
the conservation of species and the protection of resource economies.
______
Responses by Dr. Lorin Hicks to Additional Questions from Senator
Chafee
Question 1. Several scientists have suggested that HCPs should be
subject to peer review. Would you agree with that suggestion and, if
so, how do you believe that peer review should be incorporated into the
HCP process? Who should conduct the peer review?
Response. HCPs are too difficult to peer review in a traditional
sense. This is because HCP's are usually specific to a particular
applicant's landscape and methods of operation. Also, they are the
result of negotiations between an applicant and agency and as such
represent a ``best fit'' compromise balancing the economic concerns of
the applicant and the ecological concerns of the agencies; the final
result is, therefore, a policy document, based not only upon science
but also upon management rationale and operational practicality.
Consequently it is extremely difficult for an outside group of
scientists to simply pick up an HCP and review it as they would a
technical manuscript for publication.
I offer three suggestions for scientific review of HCPs. The first
is to urge the applicant to designate a science team comprised of
outside experts and internal staff to develop a technical strategy for
the HCP. This mix of external and internal expertise will result in a
more balanced scientific perspective.
The second suggestion is to have the scientific foundations of the
HCP reviewed by outside technical experts. This could be accomplished
by having technical reports generated by the applicant and agency
science teams reviewed during preparation, or conducting a technical
workshop where the technical issues and approaches used to address them
in the HCP can be discussed.
Finally, the HCP and attendant NEPA documents could be distributed
to several pertinent professional groups (such as the Society of
American Foresters, the American Fisheries Society, Society for Soil
and Water Conservation, Society for Range Management) with a request
for them to review the document and provide comments during the NEPA
comment period.
Question 2. Several scientists have suggested that a national data
base of all HCPs and scientific information about listed species be
developed to help inform future HCPs. The data base would presumably
keep track of the numbers of individual species populations, habitat,
monitoring data, and conservation measures. How useful would such a
data base have been for Plum Creek in developing its HCPs? Do you
believe that a data base of this kind would be useful to other HCP
applicants?
Response. If such a data base existed, it would be foolish of an
HCP applicant to ignore such a resource in the preparation of their
plan. It should be noted however, that the most recent HCPs in the
Northwest that I am familiar with have included extensive reviews of
the literature and technical information that is available and
pertinent to the planning area. Consequently, I would expect that most
of the references and resources the data base would offer to these
previous efforts would already have been tapped by the applicants.
Another concern is the effort required to update a data base of
this magnitude. I am aware of several other efforts to ``catalog''
HCPs, most notably the US Fish and Wildlife Service and The National
Center for Environmental Decision Making Research (see http://
www.ncedr.org). One beneficial side effect of creating such a data base
may be to help orient agency biologists who are pressed into service as
HCP staff but may not be familiar with the literature and approaches
used in the plans to date.
A final concern with the data base approach. Care must be given to
correctly characterize the content and approaches used in other HCPs.
The Washington DNR contracted out a comparison of HCPs in the Pacific
Northwest as part of the development of their HCP. It contained
numerous errors and misconceptions about the plans completed and
implemented by other HCP applicants.
Question 3. Plum Creek's HCP includes a substantial monitoring
program. Can you please describe to us how Plum Creek developed the
program, and in particular, how it defined the objectives of the
monitoring component and how Plum Creek intends to use the results of
the monitoring? Did you work with scientists outside of Plum Creek to
develop this monitoring program or subject to external peer review?
Response. Plum Creek designed the monitoring program for its
Cascades HCP using input from 3 different sources. The first was input
from scientists who helped develop the scientific strategy for the HCP.
Through their involvement and interaction, we were able to understand
which elements of the HCP represented scientific ``leap of faith'' in
the sense that hypothetical models were being used or new conservation
measures were being implemented. We also had the opportunity to get
their response to ideas and approaches we considered to address the
monitoring issues that surfaced. This amounted to an ``interactive peer
review'' from academic, independent and staff scientists that were
involved in the construction of the HCP, or reviewed the technical
reports prepared in advance of the HCP.
The second source of input for the monitoring program was the State
and Federal agencies that were consulted in the development of the HCP.
Having worked with these folks since the early stages of HCP
development, we were able to develop a ``ledger'' of technical ideas
and issues that needed to be addressed by monitoring and research. We
turned to this ``ledger'' as one of the final stages of the HCP
discussions. At this stage, the agencies were knowledgeable about the
direction we were headed in the plan, and what opportunities we had to
further our collective knowledge on the ecological issues and how well
the HCP addressed them.
The third source of input for monitoring was our own foresters and
managers who wanted to know that the effort and expense encountered in
implementing the numerous HCP mitigation measures was justified by
having the desired biological effect. They also wanted to evaluate the
feasibility of developing alternative approaches or actions that might
lower the cost or improve the efficiency of meeting the HCP objectives.
Last, they provided insight on the operational feasibility of the
monitoring activity.
The 3 objectives of the Cascades HCP research and monitoring
program can be summarized in the following 3 questions we repeatedly
encountered in the preparation of the HCP:
1. What specific areas or issues in the HCP needed to be addressed
by research and monitoring (e.g. spotted owl habitat models, the
effectiveness of riparian buffers, etc)?
2. How could this work be done to maintain confidence and
credibility in the answer and reduce costs to Plum Creek where possible
(e.g. sponsoring work through universities, working with State /
Federal monitoring programs)?
3. When was the information needed to meet specific HCP review
targets specified in the HCP?
After 3 years of HCP implementation, our experience to date
indicates that our selection of issues was accurate. Implementation of
the actual monitoring studies and approaches has been benefited by
discussing these projects closer to the actual time of putting them on
the ground. Consequently, my advice is that applicants should ``delay
the details'' of how all their monitoring projects would be implemented
on the ground in order to provide flexibility to respond to additional
input and site conditions.
Question 4. You stated in your testimony that you would like the
``No Surprises'' to be codified. Why is that?
Response. Our desire to have the ``No Surprises'' concept codified
in the ESA stems from the belief that this is a very powerful incentive
for landowners to come to the table with significant long term
commitments for conservation of species that are currently listed or
could potentially be listed under the Act in the near future. Private
landowners whose businesses must take a long term perspective (e.g. 40
year forest rotations) are willing to make substantial commitments to
go beyond current protection requirements if they believe that by doing
so they can be protected from the vagaries of future restrictions
emanating from new rules and regulations. This incentive seems to be
even more powerful that other proposals that have been offered such as
tax rebates and compensations to get landowners to voluntarily offer
more protection for wildlife resources. Institutionalizing this
incentive in the ESA along with the HCP process is a tangible
demonstration by the Federal Government that the ``No Surprises''
concept is not subject to the interpretations and modifications of
agencies and administrations. This seems even more appropriate, given
the fact that some of the commitments made by HCP applicants span
decades of investment and implementation.
Without codification in the ESA, it is thought that the ``No
Surprises'' concept will be continuously challenged in the courts and
could potentially become the ``illusion of solution'' whereby an
assurance may be offered to an applicant to extract a conservation
commitment, only to find out later that the applicant will be subject
to more review and revision as policies, regulations and expectations
change.
Question 5. Some landowners have expressed concerns that the
concept of adaptive management undermines or negates the No Surprises
assurances that are critical to HCPs. However, you have argued that
adaptive management is simply a means for allowing for ``mid-course
corrections'' in your plan. Can you describe how the adaptive
management provisions and the No Surprises assurances work together in
the context of Plum Creek's HCP?
Response. We consider the ``dynamic tension'' created by adaptive
management and the ``No Surprises'' policy to be a positive ``checks
and balances'' system to insure that HCPs are responsive to new
information without unduly burdening an applicant with excessive
monitoring costs and uncertainty about the government's commitment to
the plan. Adaptive management provides the flexibility to deal with the
uncertainty issue within the sideboards of the recently revised ``No
Surprises'' policy. It also helps define a data-based decisionmaking
system to which both the Services and the applicant can commit
resources that will resolve differences while insulating the HCP from
arbitrary decisions from either party.
As I mentioned earlier (response 3), HCPs can address areas of
significant scientific uncertainty which can be addressed with adaptive
management. The level of adaptive management (research and monitoring)
needs to match the scientific complexity of the plan. In the Cascade
HCP, Plum Creek used adaptive management to address specific areas of
scientific uncertainty such as dependence on mathematical models or
implementation of new conservation measures. The information obtained
from adaptive management gives us a ``report card'' on how well the HCP
is addressing the biological goals for the plan. The Cascades HCP
describes a process by which Plum Creek and the Services identify and
resolve plan revision issues in a cooperative manner. If research and
monitoring indicates that specific habitat goals are not being met and
there is a risk of adverse impact to the permit species, then Plum
Creek and the Services will meet to determine what changes may be
necessary to construct a positive solution. This solution must start
with the assumption that no additional land or money can be
unilaterally extracted from the company unless unforeseen circumstances
occur (such as a fire or other catastrophic event). Solutions in this
area might include rearrangement of the network of spotted owl harvest
deferrals to address a specific geographic concerns. The Services
retain the option of ``reopening'' an HCP if monitoring data suggests
that the permit species are likely to be jeopardized by the continued
implementation of the HCP.
William Vogel (USFWS Habitat Conservation Planning Program,
Olympia, Wash.) identified some desirable components of an HCP adaptive
management strategy, from a ``permitting agency'' perspective:
Base strategy [continuing]. A set of measures and
prescriptions that are sufficiently robust so that the Services have a
fair amount of confidence that they will be successful.
Feedback.--Clearly defined levels that will trigger
changes to the base strategy, linked to monitoring variables.
Implementation.--Assurances to the Services that
conservation measures will increase if needed. These assurances can be
received if an applicant (1) waives the assurances policy with regard
to the adaptive component of the HCP or (2) defines mitigation as
achieving the objective rather than merely carrying out the
prescription. The latter scenario is preferred by the Services.
Limits to adjustment.--It is acceptable for the Services
to compromise with an applicant so that the investments made for
conservation can be limited, establishing an upper limit beyond which
the assurances policy would apply and applicant would not be required
to provide additional mitigation, absent unforeseen circumstances.
Adjustment increments.--Where possible, develop a
mechanism whereby incremental adjustments can be made to a strategy
(e.g., riparian management), based on monitoring information and
continued testing. The timing of the change and how the parties work
together to notify one another are important considerations. It is
important to have these processes worked out in advance so the agencies
and applicant can respond quickly when action is necessary.
External factors.--It is possible for the Services to
commit to the need for differentiating between cause and effect, but
they must ensure that they will be able to differentiate external
factors (e.g., land management actions by others). Where possible,
experimental design for adaptive management projects should be robust
enough to differentiate treatment effects related to management
strategies from external effects independent of land management
actions. For example many factors may affect fish densities in streams
(e.g., angling pressure) independent of habitat-related components such
as large woody debris loading in streams.
Direction of change.--As a result of adaptive management,
some conservation measures may become either more conservative (e.g.,
setting aside more habitat) or more aggressive (e.g., actively managing
more habitat) compared to actions originally agreed upon with the
Services. If the change desired is to become more conservative, the
Services should document that change in cooperation with the applicant.
However, if the change would be to become more aggressive in
management, the Services should perform an assessment of other impacts
that may result, particularly when dealing with multiple species. If
the amount of ``take'' were to increase, then a permit amendment might
likely be necessary. Similarly, for a landowner to be motivated to
offer meaningful adaptive management projects under an HCP, there has
to be a high level of confidence that changes in protection levels can
go either way under the guidance of better science. Incentive is
preserved when acceptable levels of change are predetermined and well-
defined contingencies and sideboards to the extent of changes are
developed. This is a particular concern, which must be addressed in the
design of monitoring programs to allow some inference into which
factors are influencing response variables.
Habitat Conservation Planning is effective when a landowner is
motivated to offer meaningful conservation through management
prescriptions in order to receive greater certainty for management over
the long term. However, when incomplete science creates uncertainty,
assurances through simple prescriptions may be inadequate. While the
permitting agencies need the confidence that improved science will be
taken into consideration into the future, the landowner needs to be
confident that conservation dollars expended will be cost effective and
will benefit the resource. Since it is in both parties' interest not to
postpone conservation to pursue more complete science. adaptive
management becomes the tool to begin implementing conservation measures
and improving certainty while science becomes more complete.
__________
Statement of Steven P. Courtney Ph.D., Sustainable Ecosystems Institute
Good Morning. I am Steven Courtney, a biologist, and Vice-President
of Sustainable Ecosystems Institute. SEI is a non-profit organization,
dedicated to using science to solve environmental problems. We are not
an advocacy group, and our charter states that we will not engage in
litigation. Instead we believe that cooperative programs, using good
science, can find lasting solutions. My testimony will focus on the
positive lessons that can be learnt about Habitat Conservation Plans. I
will also make suggestions for improving the process.
SEI has a staff of 20 scientists, including wildlife biologists,
foresters, and marine ecologists. We are active in many ESA issues,
advising on listing decisions and conservation measures, carrying out
research, sitting on Recovery Teams, and helping with HCPs. Most of our
work is for government, but we also work closely with both industry and
environmental groups. I have personally been involved with six HCPs,
and was advisor to Dr. Kareiva on the AIBS project. I will report on
two issues: the recently completed Pacific Lumber HCP, and the SEI
Santa Barbara meeting on integrating science into HCPs.
HCPs are important to conservation. Without HCPs there would be few
options for management of endangered species on non-Federal lands.
Rigorous scientific analyses are crucial to these plans. However
science is just part of any HCP. Ultimately the Plan is the result of
negotiation, and of decisions made by landowners and regulatory
agencies. Science can help in this process, but it is not a magic
bullet. Scientists can provide information on planning objectives and
options, and on the biological consequences and risks of these options.
The better the information provided by scientists, the more likely that
planners will make good decisions.
In the Pacific Lumber HCP, we used science to defuse a
controversial situation. We coordinated a large scientific program on
the threatened Marbled Murrelet. Federal, State and private scientists
cooperated to determine the effects of different management options.
Ultimately the program was successful, in that it provided clear
guidance to decisionmakers. Several items stand out: Firstly, the
program was well-funded by the company, which invested heavily in
obtaining good scientific information. Second, the quality of the
scientific work was improved by an independent advisory or ``peer
review'' panel. In the accompanying chart, I show the results of an
independent audit of the PalCo HCP, using the same techniques as used
in the AIBS study. You will see that the quality of the HCP improved
dramatically from the early (1997) to the final draft, under panel
guidance. Note also that the final plan outperforms other Murrelet HCPs
that did not have such guidance.
A third important point on the Pacific Lumber HCP was that the
scientists were not asked to make management decisions. This separation
of roles is key. The use of good science can build trust between
parties, precisely to the extent that scientists avoid becoming
advocates.
I am pleased that Dr. Kareiva, in his discussion of the AIBS study,
agrees that the PalCo Murrelet monitoring plan uses good science. This
monitoring program was developed using the most advanced analytical
techniques available. The AIBS study was useful in pointing out that
not all HCPs do use such methods, or even information that already
exists. However the AIBS investigation was essentially a research
study--it did not address important practical considerations and
limitations, or how to best improve the process.
In April of this year, SEI (with NCEAS and other support) brought
together leading decisionmakers and scientists to develop practical
improvements. Participants included academics, representatives of
environmental and industry groups, and of Federal and State agencies.
Working by consensus, we identified numerous ways to strengthen and
improve the process (as outlined in the minutes of the meeting). There
was for instance general recognition that the regulatory agencies, and
many HCP applicants lack sufficient resources for the technically
demanding tasks they face. Academic and other scientists can help to
bridge these gaps, but often lack incentives or opportunities to do so.
Most importantly there are significant barriers to making more
effective use of science. We need new infrastructure to make this
happen.
The SEI Santa Barbara group initiated development of a national
peer review program for HCPs. We are now working to make this a
reality, and have expanded our group to include leaders from
professional societies, and other partners. By this consensus approach,
we are seeking voluntary improvements to HCPs. By improving the science
in their plans, permit applicants will smooth the negotiation process,
save time and money, and gain certainty that their plans will be
approved. The general public also wants to see better science in HCPs--
an open peer review process will improve public confidence in ESA
decisions.
action items from the sei santa barbara group
1. Publication of conclusions.--The minutes have been distributed.
Brosnan will take the lead in writing up the discussions in a format
suitable for dissemination or publication.
2. Peer review and Involvement of independent scientists.--SEI will
coordinate a group (including those present) who will develop the new
infrastructure for such involvement. The group will identify strategies
for dealing with issues of impartiality, training, funding, etc.
3. Production of a document on `how to make a good HCP'.--This will
not be an advocacy document, but a roadmap for applicants who want to
do a good job. SEI will discuss with the various parties whether they
wish to participate in production of such a document.
4. Biological goals.--The Group recommended that scientists engage
with the USFWS and help in the delineation of biological goals,
generally, and at the species level. Scientists need to play a role in
large scale analysis of species and conservation efforts, and
``conservation blueprints,'' or master plans, should be developed as
early as during the listing process in order to guide the biological
goals and objectives of HCPs and, ideally, to create closer links
between HCPs and recovery. USFWS will seek help when appropriate, but
proactive involvement of the scientific community in this process would
be highly desirable.
5. Monitoring.--The Group recommended that scientists provide
guidance to the Services on setting general monitoring standards and
objectives. This might include explicit statistical treatment of, for
instance, Type 11 errors, and the appropriate level of confidence for
making decisions under the precautionary principle. The professional
societies might help here.
6. Uncertainty and risk.--An explicit treatment of uncertainty
should be a part of any HCP. It is important to keep a complete
administrative record that acknowledges risks, and how these are
assessed and dealt with. Decision-makers (agency and applicant) will
make the call, but scientists need to provide clear statements where
possible. HCPs should articulate information gaps. These should not be
seen as liabilities, or targets for litigation, but as real needs,
which have to be dealt with. The precautionary principle, adaptive
management, and well-designed monitoring can all be appropriate ways of
dealing with uncertainty.
Population Viability Analyses are favored by some, but are not
always useful in resolving problems. Sometimes PVA is most useful in
telling you what you don't know (this can guide decisionmakers, and
help identify where additional research is necessary). PVA is not a
blanket solution, and decisionmakers should be aware of its
limitations.
Most of the tools for dealing with uncertainty are already
available. However they are brought piecemeal to HCPs, depending on the
experience of those preparing the plans. We need a more consistent
approach, which might be fostered by a ``guidance document.''
7. Further analyses.--The Group noted that the AIBS/NCEAS study
could be taken further, with additional work on, for instance, the
context of the individual HCPs (is good science correlated with a good
HCP?), how uncertainty was dealt with, the adequacy of peer review,
etc. There might be value in including other conservation plans (e.g.
Federal plans) in the analysis, to determine whether HCPs fare well or
poorly in comparative terms. The existing study group members were
encouraged to pursue these lines, which would make the study results
more useful to managers.
__________
Responses by Steve P. Courtney to Additional Questions from
Senator Chafee
Question 1. What is the role of the scientist in the development of
an HCP?
Response. Scientists are trained in science, but not typically in
decisionmaking or resource management. In the HCP process they are best
employed in a technical role, providing the necessary data for a
manager to make decisions. It is important to emphasize that scientists
should have advisory roles. They are uniquely qualified to evaluate
probabilities of success, and risks of failure. Scientists should
however normally be restricted to this advisory role. Managers, who are
trained in balancing such risks against other concerns, must be the
decisionmakers. Problems arise when scientists or managers attempt to
take other's roles (Brosnan and Manasse 1999)
HCPs are complex management documents. Although some independent
scientists (typically consultants) are engaged in HCP work, most
scientists working on HCPs are (and will continue to be) based in
academia. While this is an excellent way to ensure independent science,
academics are often inexperienced in advising management decisions.
Because academics are highly trained professionals in their field, they
may be tempted to insert themselves into the management arena. This
temptation needs to be resisted. Scientists, with some exceptions,
should be restricted to their area of expertise. The AIBS report, for
instance, is an excellent scientific study of HCPs; the recommendations
of this report for science are to the point. For instance, data base
management and use of peer review are both standard scientific
techniques that have been sadly lacking in HCP science. Most of the
AIBS study participants however lacked any in-depth experience of
working HCPs (or indeed management decisions). Hence the report's
statements on (for instance) adequacy of information for decisionmaking
have drawn extensive criticism by managers and the administration
(statement by USFWS; testimony of D.Barry).
One of the most important tasks of a scientist in the HCP arena is
to describe the risks and uncertainty inherent in any action.
Conservation planning is a difficult task, with many interacting
factors (Noss et al 1997). It is essential that we deal honestly with
the uncertainties in such processes. Managers may be tempted to avoid
statements of uncertainty, believing that this will increase the
vulnerability of a plan to scientific or legal challenge. This
temptation must also be resisted. Explicit statements of uncertainty
are essential to any evaluation of an HCP. Management provisions for
dealing with such risks (precautionary measures, adaptive management
etc.), as well as the final decision on what constitutes acceptable
risk, are the purview of the manager.
HCPs are collaborative documents. They should reflect an exchange
of ideas between managers and scientists, regulators and applicants.
Scientists may have a role in suggesting management alternatives, and
in helping managers identify options. However scientists should not
become advocates for particular options.
Scientists can also be used as reviewers (either before or after
management options are fully developed). For instance, scientists can
examine management decisions or options and determine whether such
options are based on scientific evidence, and are ``consistent'' with
scientific information. This information can then be used to help guide
final decisions, and may also be useful to the interested public. The
US Forest Service has recently attempted such a ``science consistency
check'' for the Tongass National Forest (US Forest Service PNW GTR
1998; Brosnan 1999).
An important and underestimated role in the HCP process is
``interpreter''. An individual HCP may involve several different
technical specialists, as well as applicants and regulators who are
unfamiliar with these disciplines. Some large HCPs for instance employ
economists, population demographic modelers, wildlife biologists,
hydrologists, soil scientists and others. It is unlikely that either
the regulatory agencies or the applicant (or indeed the public) have
much understanding of all these fields. A science manager who can
interpret across these fields, and between the different parties, can
greatly ease the HCP development process. In some HCPs, scientists with
management experience have filled this role. As large-scale, multi-
species HCPs become more common, the need for technically proficient
interpreters will increase.
Question 2. Several scientists have suggested that HCPs should be
subject to a rigorous peer review process. Do you agree with that
suggestion? How should peer review be incorporated into the HCP
planning process?
Response. Peer review of HCPs has been advocated by a wide
diversity of groups, including many scientists. Brosnan (1999) provides
a summary table showing how strong is the consensus for incorporating
peer review. Non-scientists and scientists alike believe that peer-
review is essential to strengthening the science used in ESA actions.
Important scientific voices for peer review include an expert panel of
conservation biologists (Meffe et al. 1998), the authors of the AIBS
report (Kareiva et al. 1999), and the broad coalition of the SEI Santa
Barbara group (SEI 1999).
Peer review is a normal component of science. It is a means whereby
scientists maintain standards in their discipline, and ensure that poor
quality work is exposed as such. The science used in HCPs should be
subject to quality control. Well-crafted HCPs have typically been open
to such review, and have incorporated suggested changes. HCPs that are
less well developed have often lacked such review. In one case (Fort
Morgan HCP for the Alabama Beach Mouse) a court has determined that the
science failed to meet acceptable standards (As a scientist, I concur
with this opinion). Review would ensure that HCPs are complete and
incorporate reasonable science. Moreover, review early in the process
would ensure that applicants do not expend resources on scientifically
unsupported options. Laura Hood (Defenders of Wildlife) in her
testimony before this subcommittee makes these points well.
HCPs are however not just scientific documents, and cannot be
reviewed as such. Peer review will be useful in the HCP process only if
the current review practices are adapted to management-oriented
documents. The SEI Santa Barbara group (1999) has warned that applying
``academic'' peer review to HCPs may cause unexpected problems. The
following points are developed from the report of this consensus group,
which included scientists, and representatives from HCP applicants,
environmental groups, and government agencies.
Peer-review must be voluntary not mandatory. Since the HCP process
is applicant driven, the regulatory agencies cannot require that
applicants obtain the early involvement of independent scientists. The
agencies can of course encourage applicants to incorporate early
scientific review. There are many incentives to applicants to do this.
By using good science, applicants will get a better plan, which is less
likely to change, and is more immune to challenge. The report of the
SEI Santa Barbara group sets out in detail the many incentives for an
applicant to voluntarily adopt independent peer review.
Scientists need training in how to review HCPs. Typical
``academic'' peer review are anonymous, proceed at a leisurely pace (up
to 6 months) and are concerned with whether the science meets certain
standards. HCPs need immediate review, often by scientists who are
willing to remain involved and develop new options. Also it is
important to recognize that the regulatory agency cannot defer-
decisions until such time as scientific evidence is ``complete''.
Again, the SEI Santa Barbara group has detailed the differences
inherent in reviews of applied science, and indicated how scientists
typically need to be trained to understand such differences.
Peer review needs independent oversight. The existing mechanisms
for peer review (administered by scientific societies, the National
Academy, applicants, agencies or interest groups) all have problems.
Parties to the HCP cannot administer an independent process of peer
review. Similarly, critics of HCPs (such as environmental groups and
their allies) will not be seen as independent. Conversely, existing
independent scientific groups lack understanding and experience of on-
the-ground HCP management. The SEI Santa Barbara group emphasized that
new infrastructure was needed, and that this should be developed from a
consensus of all affected parties (including HCP applicants,
environmentalists, and regulatory agencies). This group is now
developing a nation-wide program for involvement and oversight of
independent science in HCPs. In 1999, we anticipate two demonstration
HCPs, whereby landowners will voluntarily open their planning and
application process to independent scientific advice.
Not all HCPs need peer review. Neither do all HCPs need the same
type of peer review. Laura Hood in her testimony to this subcommittee
suggests that some HCPs may not need review. I concur, in that small
HCPs of minimal effect may not involve detailed scientific analysis.
Large HCPs, or those affecting many species, or large numbers of
particular species, should be subject to closer scrutiny. In some
cases, this will require a team of reviewers; in other cases a much
smaller group will be needed. Similarly, in some cases, scientists will
be needed to advise over a period of years, through both development
and implementation of the plan. In other cases, a simple science
consistency check may be sufficient. There should be no ``one size fits
all'' approach, but a recognition that different circumstances will
require a flexible review process.
Question 3. Can you expand on the thought that there are
significant barriers to making more effective use of science? Do you
feel that the barriers exist just in developing HCPs or do they also
exist in the listing and recovery processes?
Response. There are many barriers to making more effective use of
science. Such barriers, deliberate or inadvertent, occur in all
organizations that are involved with HCPs. For instance, the regulatory
agencies are woefully understaffed and underfunded. This significantly
impairs the ability of the USFWS and NMFS to respond in a timely manner
to endangered species issues. Preparing a regulatory decision with such
minimal staffing is a poor recipe for success. Very often, important
land management decisions are made under a mandated timeframe, by staff
who lack first-hand experience and training in advanced scientific
tools. Only significant increases in the agencies' budgets can change
this situation, so that adequate staffing and training is available.
Scientists also lack incentives to be involved in endangered
species actions (and experience many disincentives). An academic, for
instance, must answer to the priorities of his or her host
institution--typically grant support, scientific publication, and
cutting-edge research. A scientist that engages in extensive applied
work for the public benefit will probably suffer when considered for
tenure and promotion. Similarly, attracting public comment, through
involvement with endangered species debates, is probably not a good
career move. SEI is now working with the USFWS to establish stronger
incentives for scientists to engage with ESA issues.
Science, by its very nature is a public process; an HOP application
is often a closed process. Landowners need to be encouraged to open up
the HOP development process to scientific involvement. Unfortunately,
concerns about litigation may discourage landowners from seeking such
input.
Science is costly, and follows its own tempo. Landowners are
reluctant to take on heavy costs, and engage in a lengthy process.
Cost-sharing, and streamlining measures (such as explicit statements of
biological goals) would materially help this situation.
Listing decisions. Unfortunately, many high-profile listing
decisions are made after litigation. Just some of the species that have
been litigated in this way include: Northern Spotted Owl, Marbled
Murrelet, Bull Trout, Canadian Lynx, Northern Goshawk, many anadromous
fish. Science is often used in support of advocacy positions (for or
against listing) but rarely is developed in a consensus approach.
Several measures could change this situation. Most importantly the
regulatory agencies need more resources, including sufficient support
to seek help from outside scientists (through paid consultancies if
necessary). The current staff of the agencies is overworked,
undertrained in advanced demographic techniques (such as PVA) that are
needed to make decisions, and increasingly engaged in defensive
litigation.
Second, independent scientists (particularly in academia) have
shown a very poor response to requests for assistance. Only one in six
scientists, when asked by USFWS to review listing decisions, bothers to
reply. Although there is a cogent ``public good'' argument for such
involvement, the reality is that academics get little or no reward for
helping the Service. SEI is currently working with USFWS to develop new
incentives that will encourage active involvement of independent
scientists with listing decisions. We expect these measures to be put
in place in a matter of weeks.
Recovery is typically guided by a Recovery Plan, which is developed
by a Recovery Team, subject to an EIS, and implemented by agency staff.
Development and implementation of the plan is also subject to comment
by different interest groups, who may advocate alternative solutions.
In theory then, the recovery process is more open than listing or HOP
actions, and should be guided by better science. In many cases, this is
the case: Recovery Plans provide the best blueprint for making
management decisions. Unfortunately, new problems may also arise at
this stage. For instance, Recovery Team members are not selected in an
open manner, following public input. This has led to widespread
accusations of imbalance.
Recovery Team members may sometimes have their own agendas. One
Recovery Team, for instance, includes three consultants and one
academic who obtain direct personal benefit from the species in
question. The Recovery Plan for this species includes a proposal for
the Team to be engaged in all future research projects for the species.
Another Plan was prepared by an outside consultant, who made
recommendations for funding of his organization's research.
Administrative changes should be adopted that limit the potential for
conflicts of interest.
Recovery Plans take a long time to develop, and are complete for a
minority of species. This is truly unfortunate, given that the species
in question are acknowledged to be at risk. Science research cannot be
made to run faster; however most Recovery Plans do not involve a
research component, and are based on existing information. Hence
increasing the resources to the agencies would be sufficient to reduce
this backlog of work. Nevertheless the scientists on the Teams should
be fully engaged in the task of preparing the plan, and not (as is
typically the case) meet at a leisurely pace over the course of years.
Finally, there is no clear national standard for Recovery planning.
Should, for instance, a species be recovered throughout its former
range? (Not with Grizzlies, Wolves, Cougar, Red-Cockaded Woodpecker or
many species, but it is the case for Northern Spotted Owls, and Marbled
Murrelets). One recent USFWS proposal is for biological goals to be set
at the time of listing. Such a statement may have real value, because
it will set immediate guidelines for management, and presumably
(because it is under direct agency control) follow a consistent format.
Question 4. You mentioned in your testimony that some HCP
applicants are giving up on the process because of the frustrations
with the existing mechanisms for developing, negotiating and obtaining
final approval of HCPs. Who are they, and why are they unhappy with the
process? What could be done to keep these applicants interested in
participating in these conservation efforts?
Response. In answering this question, I have contacted several
actual or potential applicants, only some of whom were willing to State
their positions. For the most part, I am reporting on what these
applicants state; where I have direct experience of a situation I have
indicated so.
a. Some of the frustrations that are voiced by applicants:
i. During negotiation of the HCP, USFWS and NMFS do not
provide clear goals or guidelines.
ii. There is no clear leadership during the negotiation
process, so that the applicant cannot be assured that decisions
made at one level will be adhered to at other levels. A
frequent complaint is that an agreement reached at one level
will be overturned later at a different level, or after
``second thoughts''.
iii. The regulatory agencies apply inconsistent standards.
Different applicants are treated differently by the same staff;
standards also differ between different staff, different
offices, and different agencies.
iv. Some agency staff adopt negotiation stances, rather than
approaching the HCP as cooperators. A common complaint is that
agency staff State that a plan is insufficient, but give no
further guidance. This is seen as a negotiating ploy, to
extract concessions. Applicants are frustrated at the expense
and delay of such protracted negotiations.
v. The regulatory agencies are so understaffed that
applications take many years (5 or 6 years is common). This
lack of resources also ensures that decisions are often made by
junior staff that lack extensive scientific and management
training.
vi. HCPs are so expensive in direct costs (HCP preparation),
indirect costs (staff time) and lost opportunity costs, that
they are not worth the investment. Simply selling the land at a
fraction of value is a preferable option.
vii. Frequent staff turnover ensures that a lot of time is
lost in negotiating with new agency staff. This problem is
exacerbated later, during implementation, when the staff member
who agreed to a measure is no longer available to guide
implementation.
viii. Some applicants complain of the scale of the demands
made by the agencies. These concerns may include the level of
reserved land or mitigation, or the disproportionality of
incidental take and proposed mitigation.
ix. Many applicants are concerned about the lack of certainty
provided by an HCP and ITP, even under the ``No Surprises''
policy. The frequent litigation of HCPs, even after these have
been agreed by the agencies, has led numerous applicants to
withdraw from negotiations. Several applicants are concerned
that overturn of the ``No Surprises'' policy will eliminate
their existing HCPs.
x. After negotiation and approval of the HCP, the
implementation process itself becomes another negotiation.
Staff attempt to extract further concessions from an applicant
who is anxious to recoup HCP development costs.
b. Examples
i. Stimson Lumber has put its HCP on hold. This HCP, which
was for 31,000 acres of Redwood forest in Northern California,
concerned Spotted Owls, Marbled Murrelets and fish. The main
reasons cited for halting negotiations was frustration with the
lack of leadership in the agencies. Different agencies, and
staff at different levels within the same agency all had
different positions. NMFS applied a standard geared to
recovery, while USFWS applied a no jeopardy standard. After 2
years, and $2 Million in direct costs, the company decided that
negotiations were unlikely to reach resolution until clear
leadership was shown in an agency.
ii. Seaside Oregon, (through Scientific Resources). This HCP,
which concerned 300 acres in coastal Oregon, concerned
conservation of the Oregon Silverspot butterfly. A developer
wished to develop part of the site for a golf course and
housing. My students and I surveyed the site, and identified
all areas where the hostplant (violets) occurred. Under the
HCP, all habitat would have been preserved, and residents in
the new housing would have paid yearly dues to improve the
habitat. In this case, repeated requests for guidance to the
responsible USFWS biologist went unanswered. Finally the
applicant withdrew from the process (1993), stating that in a
few years, invasion of scotch broom would eliminate the
violets, and he would be free to develop the property.
iii. Presley Homes, Inc. This HCP application is currently
the subject of litigation (see accompanying press releases and
documentation). The HCP concerns 575 acres in suburban San
Jose, slated for development as a golf-course, residences, and
a nature reserve. The conservation plan concerns the Bay
Checkerspot butterfly (which however has not been seen at the
site for several years, and may no longer be present) and some
plants. Butterflies were to have been reintroduced to the site
under the HCP. The applicant states several frustrations,
including lack of response from the USFWS, unreasonable demands
(52 percent of the property is already set aside as reserve),
and inconsistency between USFWS and the lead agency (Corps of
Engineers). Butterfly surveys and development of HCP options
have been guided by Dr. Dennis Murphy, who testified before
this subcommittee.
iv. Sierra Pacific Industries. SPI has stopped its
negotiation of an HCP for one and a half million acres of
forest in California. A major frustration was stated to be a
lack of consistency within and between agencies (notably the
use of a ``recovery'' standard by NMFS, who requested ``fully
functioning habitat''). Currently the company is operating
under no-take guidelines, and the State forest practices rules.
c. Keeping applicants at the table
i. Private lands are an important, even essential part of
conservation of endangered species. Some species are found
mainly or entirely on private lands. Hence it is imperative
that we find a workable solution for such habitat. The Bay
Checkerspot, and Oregon Silverspot (see ii and iii above) are
both close to extinction, and loss of these HCPs is
significant.
ii. Administrative changes that address some applicant
complaints may be worthwhile. Clear decisionmaking processes,
and designated lead negotiators may smooth the negotiation
process. I have observed during several HCP negotiations the
advantages of having one agency staffer who is both empowered
to make decisions, and willing to do so. Confusion sets in when
different standards are set by different agency staff.
iii. The regulatory agencies have proposed statements of
biological goals at the time of listing. This is an entirely
commendable change, that has the potential to address some
applicants' concerns. To be effective, this policy should
result in guidance for applicants as to how important different
habitats are, and what are specific management goals. It may be
useful to distinguish between recovery objectives, and actions
that will avoid jeopardy. Soon after listing, the agencies
should also issue species wide monitoring guidelines.
Other administrative actions that are proposed include
streamlining the HCP process for plans of small effect. This
will again meet the needs of some applicants (particularly
small landowners). For this policy to be effective, a general
species-wide guidance policy should be in place, so that
``small effect'' can be determined in advance, and also so that
species are not subject to undue cumulative effects.
iv. HCPs are sometimes very costly. In some circumstances, it
may be appropriate for agency or other public organizations to
help defray these costs (e.g. small HCPs of little economic
benefit, but major biological effect). These contributions
might include purchase of property (in unusual circumstances),
or help with the cost of scientific analysis and HCP
preparation. SEI is developing such a program to cover HCP
science costs for some small landowners.
v. Staff. Regulatory agencies need more staff, who are better
trained in all the skills and technical aspects of plan
development, and who can dedicate time to speedy resolution of
a negotiation. This can only happen if the agencies are given
the necessary budgets for staff and training. Resources could
also be dedicated to outside contractors, who could advise
agencies (in peer review, or on difficult technical issues,
such as PVA), or could relieve agencies of some of their tasks
(Recovery Plans are sometimes contracted out).
vi. Certainty. Many applicants are concerned that overturn of
the ``No Surprises'' policy will remove a major incentive to
development of an HCP. Crafting a policy that ensures the
survival of both applicants and species would be a large
contribution to ensuring applicants stay involved with HCPs.
Question 5. As a scientist, can you draw a distinction between
actions that increase a species' chance of recovery and actions that do
not affect extinction rates?
Response. Extinction rates affect collections of species, not
individual species. I believe the thrust of this question addresses the
effects of actions on extinction risks. The questions of Senators Crapo
and Chafee for Monica Medina were crafted in this context.
Most biologists would state that there is a clear distinction
between populations that are increasing, populations that are
declining, and populations that are not changing in numbers. This is
elementary material, to be found in any introductory ecology text. To a
great extent, management actions can be interpreted simply in these
terms. Cutting a tree down destroys habitat, growing a tree creates it,
and doing nothing leaves the habitat unaltered. In this sense, recovery
(growing a tree) would be easily distinguishable from neutral actions
with no effect on extinction risks.
NMFS (as in Ms. Medina's testimony) states that actions
that promote recovery and actions that avoid jeopardy are
indistinguishable. I have some difficulty with this statement. It could
be that some actions have dual effects. For instance, actions that
promote siltation (e.g. timber harvest) may well increase extinction
risks (to the point of jeopardy); stopping such actions would not only
avoid jeopardy, but might also contribute to recovery (as silt leaves
the streams). In effect there would be no neutral action in this
viewpoint. However actions that actively promote recovery (e.g.
addition of Coarse Woody Debris to streams, and other rehabilitation
actions) seem to be recognizable as positive steps, that will promote
recovery, not simply avoid jeopardy.
Question 6. Should improvements to the science of HCPs be
mandatory?
Response. The science in an HCP should be appropriate. If the HCP
is of small effect, major analyses are unnecessary. If the HCP will
potentially affect an entire species, with possibly irrevocable
effects, careful analysis is in order. This follows from the
``precautionary principle'', that is widely accepted in conservation
biology (Noss et al. 1997, also see testimony of L.Hood). Hence there
can be no simple mandated standard applied in a blanket fashion.
It is the responsibility of the regulatory agencies to
make a good decision on available information. Since the HCP process is
applicant driven, improvements to science must be voluntary (in the
hands of the applicant). However it is in the landowner's interest to
provide good data to the agencies. This will generally result in a less
conservative decision, which is both fair and swift.
Nevertheless, there are clearly deficiencies in some existing HCPs,
such as the Fort Morgan HCP for the Alabama Beach Mouse. This HCP (17
pages in total length) depends on inconclusive trapping, and a
statement from one person that he ``knows where the mice really are''.
Most scientists would have trouble accepting this as a firm scientific
basis for making decisions. That this HCP was approved may reflect lack
of quality control by the local agency office--scientific peer review
would have caught the problem. The AIBS study identified some other
comparable situations, and similarly calls for peer review to establish
a minimum scientific standard.
Agencies could develop and enforce suitable scientific
standards using existing policies (I see no need for changes to the ESA
). However, it may well be in the interest of all parties for the
agencies to work with outside entities, who could then advise on
whether an HCP meets acceptable scientific standards. The SEI Santa
Barbara group (involving agencies, environmentalists, applicants, and
scientists) has begun development of such standards.
Some improvements to HCP administration should be made. Testimony
before this subcommittee indicated the critical need for a national
data base on HCPs. The agencies should also attempt greater
coordination and consistency of standards. Inconsistency between staff,
between offices, and across agencies is a frequent complaint from both
HCP applicants and environmentalists.
Most independent scientists agree that one aspect of HCP
design needs nationwide improvement: monitoring. As shown by the AIBS
study and other critiques of HCPs, monitoring is generally poorly
designed, with few explicit links to adaptive management. Monitoring
programs should be designed and coordinated at large scales (typically
larger than the individual HCP) (SEI Santa Barbara group 1999).
Monitoring design should therefore become an explicit responsibility of
the regulatory agencies, with help from interested scientists.
Voluntary improvements to HCP science should be a common goal. The
public is ill-served by mechanisms that promote closed negotiations,
and allow only NEPA review. Similarly, HCP applicants should be
encouraged to engage in good science as efficient business practice.
______
DRAFT: SCIENTIFIC PEER REVIEW IN HABITAT CONSERVATION PLANS
Scientific Involvement and Peer Review
summary of presentation on peer review by deborah m. brosnan
1. Once only confined to academic profession, peer review is taking
center stage as an important tool in natural resources planning and
actions. Individuals and organizations on all sides of the debate are
calling for peer review (Brosnan 1999), and 88 percent of Americans
support peer review of ESA listings. However, it is clear that
individuals and organizations differ in their definition, and
expectations of peer review. Peer review is not peer approval, but
rather a strict and rigorous evaluation.
2. Academic peer review and peer review for a management decision
differ. Academic peer review had its origins in the learned societies
of 17th and 18th centuries (e.g. Royal Society), where society officers
determined which presentations and debates were published, and thus
acted as gatekeepers of scientific standards. Over time and with
greater specialization in science, this evolved into the editor and
peer reviewer systems of today. Peer review evolved for science and was
carried out by scientists, and thus all shared common training and
goals (i.e. the advancement of science).
3. Unlike the participants in academic peer review, scientists and
managers have different backgrounds, ask different questions and use
information differently. They are not trained in each others
disciplines, and decisionmakers may not know how to interpret detailed
science analyses. Decision makers must make a decision regardless of
the availability of science, and must often balance different factors
including economic, social and legal concerns.
4. The difference among the groups can lead to a confusion of roles
and expectations. It is essential that we understand the roles of each
group, and what we expect and ask for in peer review.
5. Peer review should start early and be ongoing.
6. Critical issues in peer review are impartiality, independence,
and experience of the reviewers. Because peer review in management
situations is different, scientists often need training. Further a
liaison who can communicate among the parties, and buffer the
scientists from outside pressure is often essential.
7. All parties must have confidence in the peer reviewers, and it
is thus essential that they all have a role in the choice of peer
reviewers. There are different models of peer review depending on the
circumstances.
overview
There is widespread and strong support for scientific involvement
and for peer review in natural resource and conservation actions
including in the HCP process. Environmental groups (e.g. Defenders of
Wildlife 1998), Department of Interior (Secretary Babbitt, 1994), State
and local governments (e.g., National and Western Governors
Association, 1998), the private sector (communiques issued by different
stakeholders including American Farm Bureau Federation, Building Owners
and Managers Association) and the scientific community (Meffe et al.
1997, Kareiva et al. 1998) have all called for and endorsed peer
review. (See Brosnan 1999 for a more complete list of groups calling
for peer review). The challenge now is to respond to the call and to
develop the structure that meets this need. This new infrastructure
should equally serve all constituents, and harness the talents of the
scientific community who are ready to engage in conservation and
natural resource issues.
Many individuals and organizations, including applicants, are
concerned about ``doing what's right'' and are seeking help and
assurances that their plans and actions will lead to the conservation
of species and habitats. Often these groups are looking for the best
available science, and are willing to make decisions based on the
scientific evidence. There is recognition that the science can be the
final arbitrator. Some applicants have already committed, or are
willing to commit the resources necessary to ensure that plans and
actions are consistent with the best scientific information.
Scientific involvement is critical to the HCP process; it should
begin early and it should be iterative. To date scientific input and
peer review has been sporadic, and carried out at the discretion of,
and in accordance with the resources of the applicant. The HCP process
is applicant driven, and there is no legal requirement for the
involvement of scientists. The scientific community must bear some
responsibility for articulating and communicating the need for science,
and the benefits of engaging with the scientific community in HCP
development. However it is not just the applicants that benefit from
the involvement of scientists and peer review. Regulatory agencies and
the public (including environmental groups) can have greater confidence
in a plan that is science based. A plan that has passed rigorous
scientific review is more likely to meet its objectives and the goals
of the Endangered Species Act to conserve species and the ecosystems on
which they depend. The benefits from greater scientific input in to the
development of HCPs are many, and range from increased credibility to
greater confidence that the best science has been appropriately
incorporated into the plan. Box 1.
Box 1.
Why should applicants involve external scientists and scientific
review in their HCP?
1. It is the right thing to do. Many HCP applicants are motivated
to develop a conservation plan that makes a genuine contribution to the
species' welfare. Some applicants (e.g. city or State governments) may
have a public trust responsibility for wildlife resources. Engaging the
scientific community provides greater assurance of meeting these goals.
Some applicants are strong advocates for a scientific approach to
planning. This may involve a commitment to initial research, and a full
and open discussion of results. In many cases, scientific investments
have resulted in new management opportunities. Simpson Timber Company
for instance has carried out research on Northern Spotted Owls that has
changed scientific understanding of this species requirements, and
allowed less restrictive but effective management.
2. It can resolve argument, speed up the process, and reduce cost.
The application and negotiation process can be lengthy. Discussions
over several years may be necessary as participants determine options
and their effects on listed species. Impartial scientific panels have
arbitrated disagreements on the basis of scientific evidence, and
identified research that resolved apparent conflicts. This approach has
moved parties away from position based arguments and led to faster
resolution. For instance in the PalCo HCP, a science advisory group
identified data needs. These data were collected during the planning
phase, eliminating much of the disagreement. Regulatory agencies tend
to have greater confidence in plans that have a strong scientific
backing, or are developed using consensus science planning. The added
confidence can lead to swifter negotiations. The Irvine Company
estimates that the NCCP cooperative scientific process saved
significant amounts of time and money.
3. It reduces the potential for litigation. Citizen groups are
often concerned over the credibility of an HCP. The greater the
independence and expertise of the group developing the critical
scientific data, the greater the confidence the public will have in the
plan. This may then reduce the likelihood of legal challenges or other
negative comment. When litigation does occur, an independent and
credible consensus science process will be more likely to resist
challenge. By contrast adversarial science where each group uses its
own scientists to critique drafts promotes development of different
viewpoints either of which may prevail. The very presence of a credible
scientific framework to the plan, and a consensus science position may
act as deterrents to litigation.
4. It opens up lines of communication among academia, applicants,
regulatory agencies and the public. Scientists working for different
parties are more likely to communicate effectively if there is an
independent science facilitator or review team. The facilitator or
scientists can often act as interpreters of science for the different
groups thus reducing the risks of miscommunication. Communication
between the different parties allows applicants to highlight the
quality of their own internal research and can help to improve the
credibility of ``industry science'' and scientists.
5. It expands ownership of a plan. An applicant who involves other
parties in the development of an HCP is more likely to encourage
ownership and subsequent support for the plan. External scientists
should not be asked to advocate for the negotiated compromise, but
those involved in the scientific input or peer review may be willing to
defend the quality and scientific procedures used in the plan
development.
6. Increases public confidence and credibility in the HCP. The
public (including the scientific community) is more likely to have
confidence in a plan that has been rigorously reviewed by the
scientific community. Further involving external scientist may increase
credibility after the ITP has been granted. HCP applicants, who are
successful in obtaining a permit, still face implementation problems if
the public opposes the plan. Consensus science planning is a positive
move that may reassure the public.
7. Assurance that the plan will work. Applicants need to know that
their plan will work. Mitigation is more likely to be successful when
well designed. Further, conservation measures are more likely to
preserve or improve a species' status when well crafted. A consensus
scientific process is more likely to reach goals. This will in turn
reduce the possibility that management changes will be triggered in the
future, with additional costs to the applicant.
8. Maintenance of continuity. Agency staff often rotates through
positions, so that those monitoring a plan's implementation and
effectiveness may have little first hand experience of previous
discussions. An outside scientific group may have greater continuity,
providing longitudinal consistency. This may be important when plans
and permits cover 50 years or more.
distinguishing between scientific involvement and peer review
Many groups are calling for ``peer review'' in natural resource
decisions, including in the HCP process. However, often these groups
are looking for more than simply what academic scientists mean by peer
review. Many seek scientific oversight and advice by a panel or group
of independent and expert scientists. Thus, scientific involvement and
peer review differs in the extent, nature of involvement, and
responsibility of the scientists. Both are valuable, but it is
important to understand the distinction, and to be clear on what each
provides to the process.
Scientific involvement from an early stage is critical. Where early
involvement has been sought it has sometimes taken the form of an
independent scientific group or oversight panel convened from experts
in the field (usually academic and government scientists). The role of
this team is generally to provide frequent technical advice and input
through the development stage, and often subsequently through the
monitoring and/or adaptive management phase. (For instance this type of
scientific oversight was used in the development of the NCCP process,
the Washington Department of Natural Resources HCP, Brevard County HCP,
San Bruno Mountain HCP, and PalCo HCP) Where early and iterative input
has been used, there is agreement by those involved that it has
significantly helped the process, and ensured better science. For
instance, independent scientific input has enabled the negotiators to
reach agreement sooner, because the argument has been decided on the
basis of scientific evidence rather than the differing positions of
applicant and regulator: In the absence of scientific input,
negotiations have been lengthier, and position based.
An independent scientific or oversight panel can dispense with
criticisms while still early in the permitting process, and before the
plans tenets have been ``set in stone'' They can help to form a strong
scientific basis on which to build the plan, and provide credibility
and assurances to concerned regulatory and public entities. For
instance, a scientific oversight panel can assist with the scoping
stage, the evaluation of existing data and analyses, indicate gaps in
data, any needs for further research or information, and identify
alternatives that might be considered. These can provide much benefit
to an applicant. However, when the applicant already has a team of
scientists, they may be less likely to see the benefits of outside help
at the scoping stage, and view it as redundant and unnecessary,
preferring to rely first on their own scientists to frame the initial
document. Some applicants may be reluctant to seek outside assistance
at the early phases of plan formation, simply because they do not want
outside groups determining the core of their actions and business
practices. It is therefore important to provide the distinction between
biological input and business and management decisions.
Not all HCPs use external oversight or technical panels. For
instance, the Seattle P.U.D. used consultancy with respected scientists
to guide their process. Other HCPs e.g. Plum Creek Company HCP, used an
internal team of scientists, who coordinated with researchers who had
published relevant material. These approaches allow the applicant to
retain greater control, but they place a heavier burden on the internal
scientists and minimize the advantages of an external panel (e.g.
arbitration) and possibly credibility with the public (including
academics).
By contrast, an independent peer review tends to occur later in the
development of the plan. Under this scenario expert scientists, who
prior to this had no involvement in the HCP, are asked to review the
science in a draft plan. The advantages of this method are that the
scientists are clearly more independent of the plan, having had no role
in its development. The disadvantage is that peer review often comes
late in the plan, and scientists may often be perceived as advocates
for the plan versus for the science. Further, it may be costly and less
easy to alter a plan in the late stages of development. The recent
draft of the Western Oregon HCP (Oregon Department of Forestry) uses
this approach. A large review group critiqued the draft plan. On some
issues all reviewers agreed, on others there was substantive
disagreement with the burden for resolution of differences falling on
the applicant. Scientific involvement and peer review are not mutually
exclusive. For instance an applicant may chose to engage a scientific
oversight panel and gain further review through an independent and
external review of the draft stages.
Qualitative and initial quantitative evidence indicates that
external scientific involvement and review does improve HCPs. For
instance, plans involving independent scientific reviewers and panels
e.g. San Bruno Mountain HCP, were highlighted as positive examples in
recent reports (Defenders of Wildlife 1998), and the San Bruno Mountain
HCP is still considered exemplar in the design of a monitoring program.
By contrast one HCP that did not involve external and independent
scientific panels was recently successfully challenged on the basis of
scientific inadequacy. One study has attempted to quantify how input
from an independent scientific panel changes the effectiveness of a
plan. Bigger (1999) analyzed how early and later stages of the PalCo
HCP differ for two species where a scientific oversight panel was
engaged. He used identical methods to those of the AIBS study (Kareiva
et al. 1998) for evaluating HCPs. Overall, on Marbled Murrelets (where
the scientific panel was consistently engaged) the plan ranked highly
compared to other HCPs in the AIBS analysis. There were also
significant improvements from early to late drafts in the sections
covering Marbled Murrelets, as compared to Spotted Owls. Improvement in
Owl plans was greatest in the one area (monitoring) where panel
oversight was sought.
scientific involvement and peer review in the hcp process
Scientific involvement and peer review in HCP process is not the
same as involvement and peer review for academic journals or for
academic grant proposals. In academic peer review scientists and
reviewers share the same training and goals (the advancement of
science) and peer reviewers make decisions on the standard of science.
In HCP planning, science is one factor in a management decision that
must also meet legal and other agency mandates.
To illustrate, a peer reviewer for a scientific journal might
review two papers evaluating the level of endangerment of a particular
species. The two papers reach the opposite conclusion because of subtle
differences in sampling methods etc. A reviewer may judge that both
papers are of high quality and sound in their methods, analysis and
conclusions and recommend both for publication. From a scientific
perspective, there is no inconsistency in this action. However, in an
HCP and regulatory framework a decision must be made, and this type of
perceived inconsistency is not possible.
However in the management arena, scientists must review scientific
work that will be used to make a decision that affects economic and
social values. Regulatory agencies will make decisions based on the
science but also within the regulatory and legal framework. Further,
scientists and decisionmakers do not share the same background or
familiarity with each others disciplines, and this can often lead to
miscommunication (e.g. Brosnan and Menasse). It is therefore critical
to make the distinction between the role of managers and scientists,
and to avoid confusion.
The role of independent scientists either in an advisory capacity
or as peer reviewers must be understood, and clearly defined from the
beginning. Scientists should only be asked to comment or advise on the
science and not on the management actions. For instance in the
development of an HCP scientists can evaluate data, suggest what other
scientific actions are needed, who is best qualified to conduct other
analyses, but they should never be asked to make management decisions.
They should inform the negotiations, but not take sides in the
negotiations. For peer reviewers, reviewing the adequacy of the science
used in the development of an HCP is an appropriate role for a
scientist, but reviewing the HCP itself is not. Further while it is
appropriate for scientists to examine the adequacy of science in an
HCP, it is unlikely to be appropriate for them to comment on the
adequacy of overall management prescriptions. These are the
prerogatives of the regulatory agencies.
It is essential that scientists who are involved in oversight and
peer review serve equally all constituencies. All parties must have
confidence in the expertise, integrity, and impartiality of the
scientists engaged in the HCP process. To ensure this, all parties must
agree on the identity of the reviewers or panel, and anonymous review
should not be part of the process. While ongoing peer review can be
organized by and for one group (e.g. an agency may set up a peer review
process) and this may have merit in certain situations, in the HCP
setting this group is likely to be regarded as biased. Further it may
result in ``dueling reviewers'' as other groups establish their own
panels. This is counter-productive to the process.
Impartiality, independence, and well established expertise are
considered essential for the reviewers who serve either as peer
reviewers or as part of a scientific panel. However, there is a
perceived tension between an ``independent'' scientist and an
``uninformed'' one. Applicants and agencies are often concerned that a
academic scientist may be unaware of the local environment, and have no
knowledge of the management process and requirements and thus produce a
review that may be technically accurate but useless or even counter
productive for decisionmakers.
To safeguard the impartiality, independence of science, and to
ensure some degree of experience and familiarity with the management
arena a number of steps can be taken. These include (1) Training for
scientists in what is involved in reviewing for management decisions,
and how to ensure the integrity of science in the face of pressure. For
instance scientists need to be aware that a decision must be made
regardless of the availability of science, and that regulating agencies
make decisions within their legal mandates. (2) Providing a liaison or
``science manager'' who acts as the communicator between the scientists
and the applicants, agencies, and public. It is essential that the
liaison be a qualified scientist and familiar with management and the
HCP process.
The role of the science manager or liaison is critical but under-
appreciated. This person must ensure that the expectations of all
parties are appropriate. The liaison must ensure that the scientists
comment only on scientific issues, and refrain from, or are not
pressured for, value judgments. At one and the same time it is
essential to screen scientists from inappropriate pressures (e.g. to
favor particular actions) while encouraging scientists to be timely and
to consider all necessary materials. The science manager/liaison must
also take the recommendations and action items from scientists and
ensure that decisionmakers understand the value of, for example,
additional research or analyses. Often the liaison staff must help
evaluate uncertainties in the science for decisionmakers. Similarly
they must often interpret by taking a management need and phrasing it
in a form that scientists can advise on. Finally the science manager
bridges the two cultures of science and management (Brosnan and Menasse
1999), and is responsible for reducing miscommunications and
frustrations and for building trust among parties.
access to scientific involvement and peer review
While some applicants have the resources to engage scientific
advisory panels, this may not be true in all situations (e.g. small
HCPs). But this does not take away the need for scientific input. Other
constituencies (agencies, citizen groups etc.) will also want to use
such scientists, but are unlikely to have the adequate resources to
convene them. This need can only be met by developing news ways of
providing scientific input so that it is equally available to all
parties.
Timeliness is critical. Often reviews of management plans are
submitted to reviewers who are already overworked and over-committed,
and thus reviews are either late or do not arrive at all. Academic peer
reviews are often completed over several months; this will not work in
management situations. Depending on what is required (i.e. the nature
of the involvement) and the timing it may be important to consider
remuneration or other rewards for reviewers. This may take the form of
freeing reviewers from other tasks and responsibilities.
the next step
There has been a loud and clear clarion call for greater scientific
involvement in HCPs and the ESA in general. Now is the time to respond.
To move forward we need a broad-based group to develop the structure
that will provide scientific involvement and peer review to all
constituencies. This group must begin to define the nature and terms of
involvement of scientists in the HCP process and HCP science.
Participants in the NCEAS workshop are now engaged in developing such a
broad-based group and structure.
______
Consulting the Oracle: Scientific Peer Review and Natural
Resource Management
``I count the grains of the sand, and I measure out the sea's vastness,
I understand the mute, and I hear the man who does not speak.'' (Reply
of Delphic Oracle to King Croesus on whether to attack the Persians (he
did and lost)).
Independent scientific peer review is touted as the new ``oracle''
for resolving natural resource conflicts. Once a topic of conservation
only among scientists, it now has popular appeal. Congress, business,
religious groups, environmentalists are all calling for expanded use of
scientific review. Peer review is being incorporated into new Federal
and State statutes, while a recent Market Strategies poll found that 88
percent of Americans support the use of scientific peer review in the
listing of species under the Endangered Species Act.
Why are we suddenly seeing such an outpouring of interest in a
particular scientific method? The answer is simple; those groups
advocating peer review are unhappy with decisions on biodiversity
issues. These range from a general dissatisfaction with agency actions,
to specific complaints about the outcome of particular listing
decisions or approval of individual Habitat Conservation Plans (HCPs).
Such complaints are heard from all sides of an issue. Environmentalists
and development interests alike want change in how biodiversity policy
is set and applied. They all believe that science will support their
own viewpoint. For example the California Farm Bureau Federation states
that the U.S. Fish and Wildlife Service (USFWS) disregarded peer review
in the listing of fairy tadpole shrimp, despite ``overwhelming
scientific evidence showing that listing was not warranted''. In
partial remedy, the foundation recommends peer review at all levels of
ESA: they. believe that, if the agency uses peer review, unwarranted
listings will be avoided. At the same time, environmental groups also
call for peer review of agency actions, believing that USFWS does not
list enough species.
Biodiversity policy can certainly benefit from independent
scientific peer review. ESA and other natural resources laws (e.g.
National Forest management Act) specify the use of best available
science, but are largely silent on how ``best'' is defined. In some
cases (e.g. Magnuson Act) peer review is incorporated as a means of
ensuring high quality science. In other cases peer review is not
mandated but has become agency policy (e.g. USFWS). Professional
ecologists themselves have begun to respond to this call. For many
years, ecologists have bemoaned the lack of good science in
biodiversity policy, but have tended to maintain an academic distance
from the issue. The explosive growth of conservation biology as a
professional discipline has changed this. Ecologists are beginning to
insist on high caliber science in resource management issues. Indeed
scientists are themselves calling for better application of science in
ESA, and have identified peer review as a major quality control tool
(e.g. reports of NRC, AIBS/NCEAS studies).
Enthusiasm for peer review is so general, some form is likely to be
incorporated into any eventual reform of ESA. Each interest group is
sure that peer review will fix problems that affect their constituency.
Clearly they cannot all be right. Congress appears intent on an ESA
that is fairer, effective and efficient. Peer review could be one
component in such reform, but an ill-conceived process will add layers
of problems. The legislative history of ESA is replete with unintended
consequences of actions. Before peer review is incorporated into ESA,
it will be wise to consider what it is we really want.
In academia, peer review sets the standard for scientific adequacy.
It is appealing to think that we can use the same process to ensure
that high quality and impartial science is used in management and
policy decisions. However in the rush to adopt review standards, few
groups (notably scientists themselves) have considered how the arenas
of science and management differ. In the absence of such critical
evaluation we may be on the way to creating a new Delphic Oracle: a
source of profound but useless statements.
In this article, I will show what can go wrong with peer review,
and how it could harm efforts at reform. These cautionary tales lead to
specific recommendations. First though, we need to identify who wants
peer review, why they think it will help them, and the extent to which
existing review processes would meet such goals.
who calls for scientific peer review, and what do they really want?
A non-exhaustive search shows that all sides to the biodiversity
debate are calling for independent peer review. Table 1 shows a
selection of organizations calling for incorporation of review into one
or another part of ESA. Farmers, timber and building interests, water
users and their political allies are all calling for formal scientific
peer review of listing decisions. USFWS currently attempts to
incorporate local review into such decisions. However the Ecological
Society of America, a professional body, opposes peer review of
listings, because this would delay the listing process. Cattlemen and a
broad coalition of reform advocates also advocate review of critical
habitat designations.
A more diverse group proposes review of individual HCPs.
Environmental groups are particularly concerned about this provision,
but others supporting review of HCPs include water and building
interests, and some religious groups. Professional scientific
organizations also argue for review of recovery plans, and that this
should take place prior to implementation of new HCPs. Note that
Defenders of Wildlife call for effective scientific involvement
(including peer review) at an early stage in the HCP negotiation
process.
Several common themes emerge from this survey. Firstly, that there
is widespread distrust of the regulatory agencies (usually USFWS and
National Marine Fisheries Service, NMFS), and dissatisfaction with
their administration of the ESA. Litigation has often been the result
of this dissatisfaction. Judges, not independent scientists, then make
rulings on scientific merit. Most of the major western listing
decisions were adopted only after lawsuits (e.g. Northern Spotted Owl,
Marbled Murrelet, Bull Trout, other salmonids, Lynx, etc.). Similarly
an approved HOP (Paradise Joint Venture project, HOP for the Alabama
Beach Mouse) has been successfully challenged on the basis of
inadequate science.
Some groups want to see less litigation in ESA issues, and greater
use of impartial science to settle management questions. Several
arguments underlie this stance. For instance, judges are not
technicians--they may therefore make the ``wrong'' decision. The
judicial process is also overtly political, with individual judges
having well-known positions. Finally, court actions are incredibly
costly--any means (such as better science) that can eliminate such
costs is to be favored.
A third point from Table 1 is the striking difference between
groups in which parts of ESA need review. Simply put, each group favors
review of those provisions of the Act which they find unpalatable. Pro-
development organizations want less listings of species, and favor
review of listing decisions. Pro-environment groups are concerned about
habitat loss under HCPs, and want them reviewed before approval.
In general then, a wide array of interests favors independent
review, for essentially identical reasons. ``Peer review'' will mean
less litigation, less agency control, more fairness and greater
objectivity. It will also be a tool to overthrow particular ``wrong''
decisions (e.g. the Beach Mouse HOP, listing of fairy shrimps).
Interestingly, the agencies themselves share some of these goals,
and wish to respond to the public's concerns. In addition, an open
responsive process will be less vulnerable to litigation. Agency staff
typically believe that they are doing a difficult task with inadequate
resources. Better scientific support would lead to better decisions,
and better justification for any decision. Increasingly, agencies are
seeing that ``it is better to do it right than to do it over''.
Some of these different goals are compatible: some are not. Peer
review will probably lead to a more open process that is less
vulnerable to litigation on issues of scientific merit. Early review
might also prevent some bad decisions, eliminating the need for
litigation; it will not overturn all unpopular decisions. ESA actions
are not made solely on scientific data; indeed, sometimes scientific
information is inadequate or even lacking.
Most of the groups in Table 1 make no recommendations on how peer
review should be structured, other than that it be carried out by
independent scientists. A few bills are more explicit. For instance
Washington State House Bill 2505 uses an independent science panel to
guide salmon management and recovery. In 1997 the proposed Endangered
Species Recovery Act (Senate Bill 1108, Kempthorne) would have mandated
peer review of listing petitions, and outlined a method for choosing
reviewers. Individual plans may be quite specific: the Pacific Lumber
HOP, for instance, sets up (at agency insistence) three review panels,
each with a different makeup and selection process.
Again, the type of the review process envisaged reflects the goals
of the framers. The Kempthorne bill was predicated on the assumption
that regulatory agencies and the courts make poor decisions regarding
listing, and that balanced review (including input from the private
sector) would result in fewer listings. The Pacific Lumber HCP dictates
academic scientific panels because of agency distrust of the applicant,
and a belief that scientific oversight would ensure compliance, and
effective conservation. In both cases then, peer review is seen as a
means to enforce a particular viewpoint. The structure and format of
the review process is then tailored to fit this enforcement goal. By
contrast, USFWS and the US Forest Service select peer reviewers for
their own actions, and a primary goal is to establish scientific
legitimacy. The structure of the review (open format, use of agency
staff as reviewers) is again tailored to a particular goal. This
process departs significantly from the use of independent peer review
in academic science.
what is peer review?
Scientific peer review evolved over 300 years as a way of setting
and maintaining scientific standards. While it is not without it's
critics, peer review is widely regarded as an effective way of
upholding the quality of scientific endeavors. Non-scientists, who are
generally unaware of the methods or subtleties of peer review,
generally believe that if an article has been published in a peer
reviewed journal it is more likely to be true. This is evident from the
respect accorded to peer reviewed science in the courtroom and even on
expose TV shows.
Peer review has always been a closed system, confined within the
scientific community. It has been practiced by scientists for science.
It was not developed for use in a wider social political context. The
beginnings of modem peer review date to the reamed Societies of the
17th and 18th Centuries. Many of these Societies published not only the
text of a presented paper but also the text of the ensuing debate.
(Charles Darwin's theories on evolution were presented in such a
format). However Societies realized that standards were necessary, and
that not all papers were worthy of publication. Society officers, and
editors emerged as the initial guardians of scientific standards. Over
time, as science expanded, and the breadth of knowledge increased,
scientists specialized. Consequently editors became less able to judge
the scientific merit of the diverse and focussed topics presented for
publication. Editors came to rely on an army of reviewing scientists
with different areas of expertise, and who were themselves known,
published, and respected within the scientific community. Editors
conferred anonymity on reviewers as a way of encouraging frankness.
Today's peer review is a rigorous and powerful activity. The most
common types of peer review concern grant proposals or publications in
scientific journals. In journal reviews, an editor sends a submitted
manuscript to a number of scientists who are active in the authors'
field. The accompanying letter generally asks the reviewer to comment
on the quality of the data and conclusions, errors and omissions,
appropriateness of the topic for the journal, and any editorial
comments. The reviewer then recommends that the work be ``published as
is'' ``published with revisions'' or``rejected'' A reviewer of a grant
application has two choices to recommend that the proposed work be
``funded'' or ``not funded'' on the basis of the science. Typically all
these recommendations are written anonymously where the identity of the
reviewer is concealed.
Being a reviewer confers power. A reviewer not only comments on the
quality of the science under review, but also makes decisions on what
happens to that work within the scientific community. A research
program can disappear, or a manuscript fail to be published because
reviewers judge it as scientifically inadequate. Clearly there are
dangers here, when a scientific competitor can delay or even prevent
publication of a rival's work. A good editor or grant program
administrator recognizes these dangers and takes action to limit them.
At the same time, it is essential to the process that reviewers are
heeded, and their recommendations followed. A journal editor that
consistently ignores review comments will quickly lose credibility, and
probably their job.
There is no formal training as a peer reviewer. The main
qualifications are to have already published in peer reviewed journals,
and to be recognized as a scientist who carries out good work. Review
skills are largely assimilated in graduate school, during debates,
journal clubs, and in review of already published papers. Because
reviews are limited to the academic arena, the process is generally
successful. The contributing scientist, editor and reviewers share
similar backgrounds and education, with a common understanding of what
constitutes good science. Scientists, policymakers, managers, advocacy
groups and the public lack this common culture.
the minefield
The use of science in resource management decisions is strikingly
different from academic science. Few scientists are trained or
experienced in how policymakers or managers use or understand science.
Simply putting academic peer review into a management context is a
recipe for misunderstanding and frustration.
Some of the key differences:
1. A decision will be made. Scientists are trained to be cautious,
and to make only statements that are well supported. Managers have a
different task: to make a decision using whatever information is
available. In the context of peer review, scientists usually send
incomplete work back for further study; managers often cannot do this.
2. ``Best available versus adequate''. Managers and decisionmakers
are instructed to use the best available science. Scientists may regard
this same science as incomplete or inadequate. Decision-makers would
like good science, but they must use what is available. Statements, in
a peer review, that a piece of evidence does not meet normal scientific
standards may not be relevant to a decisionmaker. Hence the burdens of
proof in management decisions are likely to differ from academic
science. The AIBS/NCEAS study of HCPs, and the USFWS response to it,
clearly illustrates the pitfalls of using academic standards of
adequacy.
3. ``Best available not all adequate''. In academic science, two
competing ideas or theories may both be supported by data, and both may
spawn publishable work. Management needs to know which is best--i.e. it
may require a judgment between conflicting data. Scientists rarely make
such calls.
4. Decisions are based in more than science. Ecology can only
advise decisionmakers, who must also weigh legal concerns, public
interest, economics, etc. Hence scientists should avoid making
recommendations on decisions, and focus just on technical issues of
science.
5. Reviewers as advocates. In academic science, it is assumed that
a reviewer is impartial and attempts to set aside any personal biases.
Indeed, reviewers are asked not to complete reviews if they have pre-
formed opinions. In management situations, when reviewers are selected
from a diversity of interests, it is assumed that, for instance,
reviews solicited from environmental advocates, or development
interests, will reflect the background of the reviewer. Hence the
manager must balance the data against the source.
6. Speed. Academic scientific reviews are completed at a leisurely
pace-weeks or even months. This is not acceptable in management
situations. Often the only reviews that arrive will be from reviewers
with a strong personal interest.
7. Anonymity and retaliation. Academic reviews are typically
anonymous. This encourages frankness and discourages professional
retaliation for a negative review. Reviews in management situations
must usually be open. This will promote dialog, and perhaps ensure a
fair review. However some scientists will be reluctant to make strong
statements which are subject to public scrutiny.
8. ``Qualified versus independent''. Often the scientists best
qualified to be reviewers have already been involved in a conservation
issue. Many HOP applicants for instance are extremely reluctant to have
``inexperienced'' ecologists from the professional societies. They
prefer ``experienced'' scientists who understand the rationale and
techniques of an HOP (see Santa Barbara group report). This sets up a
tension between demonstrable independence and necessary experience.
9. Language. Managers and decisionmakers may not be familiar with
the language of science. Statistical issues are particularly likely to
cause confusion.
10. Reward structure. In academic science, reviews are performed
free of charge, for the common good. Hence they are typically given
lower priority than other more pressing tasks. In management
situations, this will not work. Rewards (financial and otherwise) have
been necessary for reviews of HCPs etc.
what can go wrong?
A key issue for peer review in biodiversity issues is clarity: both
of information and of an individual's role. Some of the dangers of lack
of clarity are shown in examples of reviews in practice.
The development of the management plan for the Tongass National
Forest was a visible and controversial process. It provides a useful
example of the confusion of roles that can occur. In order to
incorporate the best available science, the USDA Forest Service set up
an internal peer review scientific group that worked together with
forest managers to develop a scientifically based management plan. To
further ensure scientific quality, USDA Forest Service sent its drafts
and plans to a respected group of external reviewers (mostly academic)
as allowed under the Federal Advisory Committee Act. (This Act limits
the type of outside review committees that agencies can use.) In
reviewing the process, the USDA Forest Service scientists concluded
that Forest Service managers and scientists had worked effectively
together at all stages and that science had been effectively
incorporated by managers into the plans and revisions. Indeed it had
been a watershed event in bringing the two groups together. However,
the interaction between the agency and external reviewers was not as
cordial.
The external peer review committee members on the Tongass National
Forest planning for old growth associated wildlife species
independently issued a joint statement concerning the measures proposed
to address protection of old growth associated wildlife species. In
contrast to the internal reviews, this group was largely critical of
the management proposed on the basis of the science. They concluded
that, in some aspects of the plan, none of the proposed actions
responded meaningfully to the conclusions reached by the peer
reviewers. They further argued that ``the USDA Forest Service must
consider other alternatives that respond more directly to the
consistent advice it has received from the scientific community before
adopting a plan for the Tongass.'' It's clear that the scientists felt
ignored. Further it is within the responsibility of the scientists to
respond to the inconsistency of the science and the decision. In the
same statement, scientists noted that there were specific actions that
should be carried out immediately to protect critical habitat. These
included, for instance, no road building in certain types of forest,
and the protection of low elevation old growth through ``lowgrading.''
The Tongass experience illustrates several of the problems in
applying scientific peer review to management. Firstly, independent and
internal reviewers reached diametrically opposite opinions--the
decisionmakers must now determine whether this difference was caused by
inexperience or bias, and which set of opinions to follow. Whatever the
eventual choice, the track record of dissent will increase
vulnerability to legal challenges, and political interference. Second,
the independent scientists feel ignored, and that their scientific
opinions have not been integrated into management decisions. This again
increases the vulnerability of those decisions. Third, the independent
scientists make clear management recommendations--they feel that their
science alone should drive management decisions. Most managers and
decisionmakers will disagree with this point of view.
Far from strengthening management decisions, peer review at the
Tongass raised new problems. Confusion of roles and objectives was a
major cause of these difficulties. A well-trained science manager might
have prevented some of the problems, by giving clearer directions (In
fairness the ``science consistency check'' process is new to the Forest
Service, and some initial problems are to be expected).
A different set of issues has arisen with peer review in Habitat
Conservation Plans. Different approaches have been applied in different
circumstances. The San Bruno Mountain and Pacific Lumber HCPs used
academic scientific review panels who, from an early point in the
process, guided the interpretation of science. These panels were
advisory, and scrupulously avoided management recommendations,
sometimes to the frustration of decisionmakers. The panels avoided
setting levels of ``acceptable risk'', and tended to use conservative
scientific standards. Rather than select the ``best available
science'', the PL panel sometimes refused to express any opinion at
all. Nevertheless the panel spoke with unanimity, and the marbled
murrelet sections of the PL HCP appear well-crafted, when independently
assessed.
By contrast, the State of Oregon Northwest Forest HOP negotiation)
used a post-hoc review by 23 ``independent'' scientists of a largely
completed plan. The 23 reviewers were selected to represent a range of
interest groups and experience. The corresponding diversity of
responses include diametrically opposite opinions on several issues.
This will render the opinions difficult to apply without further
arbitration.
As a final example of problems, the USFWS uses peer review of
listing decisions. A few reviewers are selected at the local field
office level, and are chosen from scientists ``involved'' in the issue.
These reviews are unlikely to be independent, but may be more expert.
Interestingly, the service reports a poor response from reviewers who
are frequently late with reviews, or fail to respond at all. Reviewers
are not rewarded in any way.
Clearly, many issues can determine the outcome of a peer review
process: how it is structured, who runs it, who are the reviewers, how
they are rewarded, and how they are instructed, etc. Lack of attention
to these details, and blanket application of an ``academic'' model has
already led to problems, and will continue to do so.
a model for peer review in biodiversity policy
These past experiences can point the way to more effective
integration of peer review into resource management. The following
principles may be useful:
1. The goals of peer review must be clearly stated
2. Impartiality must be maintained to establish credibility
3. Clear roles for reviewers are essential
4. A balance must be sought between independence and expertise of
reviewers
5. Training of reviewers may be necessary
6. A reward structure must be specified
7. Early involvement of scientists will give better results than
post-hoc evaluations
Three other lessons can be deduced from past review efforts. First,
academic scientists are rarely used to management oriented science.
They may have roles as reviewers, but need careful instruction. The
individual or organization that is coordinating the review needs to be
experienced in both academic and applied science. Existing institutions
lack the necessary experience (academia, professional bodies,
academies, etc.), or are not seen as independent (e.g. branches of the
regulatory agencies). There is a critical need for infrastructure to
administer peer review, and for lists of trained and experienced
reviewers.
Second, a mediator or interpreter can be highly effective.
Successful reviews (e.g. PL, Oregon HCPs) have employed a dedicated
mediator, who can clarify roles, and eliminate misunderstandings
between scientists and managers. This role is essential, because few
scientists understand the policymakers' framework. Scientists may need
encouragement in some areas, and may need to be dissuaded at other
times from attempting to become managers. At the same time, managers
may lack advanced training in e.g. statistics, and may need help in
interpreting scientific statements. The interpreter can also act as the
gate-keeper, ensuring scientific integrity and that reviewers are not
put under pressure to make inappropriate management recommendations, or
to become advocates.
Third, a panel structure appears to give more consistently useful
results. This is probably the result of continued involvement, and the
opportunity of panelists to discuss issues among themselves. While
panels sometimes produce conflicting opinions, they appear more likely
to give unequivocal results than a collection of individual reviews.
conclusion
There is enthusiasm for science and peer review, but little
consensus on how to make the process work. Most notably, we lack the
necessary infrastructure for developing peer review as a useful tool.
Current institutions are either insufficiently experienced, or lack
independence. Peer review cannot be guided by managers alone, nor by
scientists alone. We need independent technical groups that have the
necessary diverse skills, but are seen as impartial. The SEI Santa
Barbara group, a consortium of diverse interests (environmental,
business, agency and scientific) have begun development of a consensus
program that will provide peer review as a public service.
For centuries, the oracle at Delphi provided answers to all comers.
This popularity persisted despite the oracle's responses being
completely unintelligible; even after ``interpretation'' by Apollo's
priests, problems were rife. Self-deception, and willful ignorance of
alternative explanations appear to have been with us for millennia.
Scientific peer review may be more recent than decisionmaking by
oracle, but it shares some essential characteristics. Esoteric language
of the priesthood (ecology) may be reassuring--whether we make good
decisions will depend on how we interpret the advice.
Developer Seeks to Protect the Environment from the U.S. Fish and
Wildlife Agency
Presley has been granted a hearing date on its petition filed today
in Santa Clara Superior Court. Presley's petition asks the Court to
order a grading permit issued for Presley's residential project in
Santa Clara County. The Court will hear the matter on August 23, 1999.
Presley Homes, the developer of The Ranch at Silver Creek, a
residential community in the City on San Jose which would provide 538
homes in the heart of the Silicon Valley where there exists a severe
housing shortage. Construction of the 538 homes will use only 15
percent of the 575 acres included in The Ranch at Silver. This is less
than one house per acre. More than half of the property will be given
to a non-profit environmental trust for use an conservation habitat.
The developer would provide initial funding for the Trust of
approximately $1.6 million and would arrange funding in perpetuity of
$200,000 annually. Who could fault such a plan? None other than the
United States Fish and Wildlife Service.
On July 26, 1999 Presley was informed that the city of San Jose
could not issue a grading permit due solely to improper threats and
interference by the U.S. Fish and Wildlife Service with the city's
permitting process. The Service, which has threatened legal action
against the city, is falsely representing that the Ranch at Silver
Creek potentially endangers protected species, and is therefore within
the Service's jurisdiction. In fact, there are no protected animals
species on the site. Moreover, Presley's habitat conservation plan
provides for the restoration and enhancement of protected species.
Since 1990, The Ranch at Silver Creek has undergone extensive
environmental and planning review by local, State and Federal
agencies--including the Army Corps, U.S. Environmental Protection
Agency, the Regional Water Quality Control Board, the Santa Clara
Valley Water Distinct, the city, the Service, and the California
Department of Fish and Game. Presley has secured all of the necessary
approvals and permits for each stage of the project to date. The U.S.
Fish and Wildlife Service has actively participated in the regulatory
review process for The Ranch at Silver Creek from its inception. At
each stage of the process, the Service has objected to the issuance of
permits and approvals. But, at each stage, except for the one at hand,
the Service's objections have been rejected by the reviewing agency. By
threats, false representations and innuendoes, the Service is now
attempting to accomplish indirectly what it could not directly or
lawfully. .
The Service falsely claims it is trying to protect the Bay
Checkerspot Butterfly. In fact, all scientific evidence shows that
there is no Bay Checkerspot Butterfly on this property and hasn't been
one on the property since 1995. The Service has not produced one shred
of evidence to the contrary. While an habitat conservation plan could
not have been imposed upon Presley under Federal law, Presley has
nevertheless agreed to a comprehensive habitat conservation plan as
part of the environmental review process. The habit conservation plan
includes a 71-acre Bay Checkerspot Butterfly restoration area, to be
governed (along with other open acreage) by the non-profit
environmental trust. The net effect of Presley's habitat conservation
plan is that 298 acres (or approximately 52 percent of the site) is to
be set aside as trust-funded restoration/preservation areas.
Presley environmental team has exercised avoidance of environmental
impacts to these sensitive areas. When Presley bought the property, the
site plan called for filling the degraded Hellyer Creek corridor.
Presley redesigned the plan to preserve Hellyer Creek and over 90
percent of the site's wetlands and the riparian habitat will be
preserved and enhanced. The entire lush riparian corridor of Silver
Creek will be preserved and enhanced with oak trees grown from local
seed. Presley has already built a wetland pond to provide a breeding
habitat for the California tiger salamander, with translocation of
adult tiger salamanders from existing residential neighborhoods, and
successful breeding of these adults in the pond has been documented.
The plan also avoids endangered plants such as the Metcalf Canyon
jewelflower and dudleya, and the plant restoration part of the
conservation plan calls for transplanting, propagating, seeding and
enhancing habitat for these species. All of this is in jeopardy because
of the actions of the U.S. Fish and Wildlife Service.
Presley had already begun clearing the property when the Service
interfered. At this point grading needs to be completed to insure
proper erosion control before the rainfalls begin this winter. The area
graded drains into Silver Creek asked Coyote Creek, which in turn flow
into the San Francisco Bay.
The Service's eleventh hour interference with the city's permitting
process consists of false representations about its jurisdiction over
the permitting process, and unwarranted threats of legal action against
the city. The Service's interference is:
Improper--because it exceeds its jurisdiction and/or is an
abuse of its powers,
Unfair--because it has had every opportunity to influence
the environmental aspects of The Ranch at Silver Creek from its
inception, but chose not to or was rejected; and
Environmentally counterproductive--because Presley is
unable to implement its voluntarily adopted, comprehensive habitat
conservation plan, which includes a 71-acre area dedicated to the
restoration of the same butterfly species which the Service improperly
asserts needs protection.
Environmentally counterproductive--Unless Presley obtains
the grading permit forthwith, it will be unable to complete the grading
necessary to secure the site against the imminent onset of seasonal
rainfalls, with the inevitable result of substantial and irreparable
damage to the environment, as well as to the economic interests of
Presley, the city, and surrounding property owners.
Economically harmful to the city and State--The Ranch at
Silver Creek would provide much needed housing in the heart of the
Silicon Valley which is an important part of California's economy.
______
The Presley Companies Files Suit Against the City of San Jose to
Proceed with Housing Project
Newport Beach, CA--August 10, 1999--The Presley Companies
(NYSE:PDC) and Cerro Plata Associates said today they have filed a
lawsuit to obtain appropriate permits to allow their Ranch at Silver
Creek housing development to move forward.
The Ranch at Silver Creek would provide 538 homes on approximately
15 percent of the total property. More than 50 percent of the total
acreage will be a protected environmental habitat as part of a
conservation plan established by Cerro Plata and the remaining 33
percent is dedicated to a golf course. Cerro Plata, of which Presley
Homes is a member, is the developer of The Ranch at Silver Creek.
Presley pointed out that ``Notwithstanding the eminently clear
environmental mitigation actions we have taken with respect to this
project and despite the fact that noted ecologists have embraced our
plans and succinctly approved them, the U.S. Fish and Wildlife
Commission has fought this project every step of the way and fought it
on spurious grounds.
``For example,'' Presley continued, ``The Commission claims that
the Bay Checkerspot Butterfly, an endangered species, is on the
property. All evidence is to the contrary and shows that this species
has not been on the property for nearly 5 years, a fact that the
Commissions disputes, but refuses to produce any evidence for its
position. Moreover, the Ranch at Silver Creek development specifically
establishes 71 acres as a Checkerspot Butterfly restoration area, as
well as other open acreage. The habitat conservation plan Cerra Plata
has established will have an initial finding of $1.6 million, of which
$1.3 million will be applied to this restoration area. Moreover, this
conservation plan is not just for 1 year, or 2, or 3. It is established
in perpetuity with funding of $200,000 annually.''
Presley stated that ``The city of San Jose is in the heart of the
Silicon Valley, an area that is undergoing California's worst housing
shortage. We have taken every possible precaution to mitigate
environmental damage to this area. And in fact, our plan will restore
several endangered species. If we do not proceed on schedule, if we are
prevented from doing so by the Fish and Wildlife Commission, that
entity itself will be responsible for potential significant
environmental damage.''
The company said ``if we are prevented by the Commission from
moving forward with appropriate grading of the property and completing
that grading before mid-October, seasonal rains will likely cause
substantial amounts of exposed, unstable soils to wash into an adjacent
creek basin resulting in severe environmental harm to not only the
creek, but the San Francisco Bay into which it drains. This event will
violate State and Federal clean water laws and clog nearby flood
control channels, with the potential result of flooding, in existing
residential areas.''
______
Statement of Michael A. O'Connell, Senior Advisor for Science and
Policy of The Nature Conservancy of California
Mr. Chairman and members of the Committee, thank you for the
opportunity to address this committee on the science of regional
conservation planning under the Endangered Species Act (ESA).
The Nature Conservancy is an international non-profit conservation
organization dedicated to preserving the plants, animals and natural
communities that represent the diversity of life on Earth by protecting
the lands and waters they need to survive. We maintain offices in all
50 states and work with partner organizations in 17 countries. We have
helped protect 10.5 million acres in the United States and Canada and
ourselves own 1,600 preserves--the largest private system of nature
sanctuaries in the world. Our efforts are supported by more than
1,000,000 individuals members and hundreds of corporate associates
committed to reversing degradation of the biodiversity and natural
resources on which our lives depend.
The Nature Conservancy has been involved in conservation planning
under the ESA since Section 10(a) was authorized in 1982. We have
played a major role in a number of Habitat Conservation Plan (HCP)
processes, including Coachella Valley California, Clark County, Nevada,
Balcones Canyonlands in Texas and the Natural Community Conservation
Planning program in Southern California. Our organization has witnessed
the evolution of habitat conservation planning from its beginnings on
San Bruno Mountain to its current State of the art in Southern
California with the NCCP program. The comments and observations I offer
today reflect both the Conservancy's long experience and my own as a
student and practitioner of conservation planning.
There are two key points in my testimony. The first is that habitat
conservation planning as it has generally been practiced under the ESA,
while an important tool in protecting endangered species, has not
achieved the conservation gains that the ESA contemplates, namely the
recovery and delisting of species. There are a number of reasons why
this is so, and I will try to focus on the scientific ones. Second--the
good news--is that there are some scientific and biological adjustments
that can be made to the planning program to greatly increase
conservation outcomes without undermining the other benefits the
program provides. I want to use the example of the Southern California
regional conservation planning program under NCCP to illustrate many of
these points.
the limitations of current practice
Before undertaking an examination of the science of HCPs, it is
important that we look at what HCPs are as a conservation tool and what
they are not. Section 10 of ESA provides a way for non-Federal project
proponents to avoid the legal consequences of incidentally taking
endangered species in the course of otherwise lawful activities. Almost
all HCPs are begun when a proposed activity is likely to result in the
take of a listed species, and the conservation provisions that arise
from an HCP are generally intended to avoid or mitigate the take of
some individuals of a species. Is that wrong? Probably not. Full
mitigation for unavoidable impacts is arguably a fairly reasonable
standard for private parties. But is that good conservation? I submit
that it falls far short of conservation of biological diversity, nor is
it the type that the Endangered Species Act intends--recovery of listed
species.
Part of the problem is that HCPs as they have been practiced are
initiated much too late from a scientific standpoint. Most are begun
when a species is already listed, which means that it is almost at the
brink of extinction. Many biological--and political and economic--
options are foreclosed by that point.
Most HCPs are also the wrong biological scale. While there has been
an increase recently in multiple-species conservation plans around the
country and the Fish and Wildlife Service has promoted them, even these
plans are still mostly focused on reacting to proposed effects on
listed species on non-Federal land. They have rarely been used as a
mechanism to create conservation solutions in advance of conflict on a
broad scale for interconnected natural communities of species. And
biologically, most HCPs miss an entire scale of conservation--that of
ecosystem level process and function that sustains those species.
The U.S. Fish and Wildlife Service has been working hard to improve
the habitat conservation planning program. They have done their best to
try and make the HCP program more conservation oriented, both through
practice and through policy. What's more, this issue is perhaps the
most emotional, difficult and controversial issue in contemporary
conservation policy and the Service is in the middle. Their solutions,
however, are limited by a legislative policy weak on natural systems
conservation and on incentives to participants. It is difficult to
envision a broad-based, conservation-focused program arising from a
statute that is largely based on prohibiting improper actions rather
than enabling and encouraging constructive ones. The Service has done
well, all things considered.
So, what is the answer to these issues from a scientific
standpoint? Many have suggested that it lies in improving the recovery
planning process. If we have good recovery plans, they say, then we'll
be able to handle all of those other issues. I disagree. We believe
that recovery planning is not the best solution for a couple of
critical reasons. First, it is still species focused. While there are a
few multiple species recovery plans in existence, they are generally
still focused on the species themselves and not on natural communities
and other critical scales of biological diversity that are essential to
craft a viable solution. Even if they were not, there's no regulatory
handle for anything other than species. Second, recovery plans also
come too late. They are only prepared when a species is listed. And
Congress is unlikely to legislate recovery plans and enforcement
authority for species that are not yet listed.
Others have suggested that the answer lies in new legislation to
regulate ecosystems. While this is a good idea it is not very
practical, because from both biological and regulatory perspectives
species are the only reasonably definable unit. Besides, there will
always be species that require specific, individual intervention to
survive and should not be ignored. So directing all our attention at an
ecosystem scale is also an incomplete solution. The key instead is how
we focus our entire suite of conservation actions and how they are
deployed.
scientific principles
There are some basic scientific principles that must be considered
if we are to effectively achieve broad-scale, natural community
conservation under the ESA (Noss et al. 1997).
A. Biodiversity conservation must be concerned with many different
spatial and temporal scales. There is never one best scale for either
research or action. The key is to find the most appropriate scale for
the problem at hand and then integrate across scales in an overall
conservation strategy. The problem with endangered species conservation
to this point is that it frequently focuses exclusively on a scale that
is too small, both geographically and biologically. It is appropriate
to evaluate the impact of a housing project on a beach mouse colony,
but we should also be evaluating how that decision integrates into the
overall survival of both that species and the entire barrier island
natural community.
B. Ecosystems are more complex than we think. There are many
complexities at all levels of biological organization that cannot be
measured, perceived, or even conceived of, that directly affect the
viability of conservation solutions. Science can never provide all the
answers to questions about conservation, so the response should be to
exercise both caution and prudence when designing answers. Wise
solutions don't necessarily try to compensate for factors that cannot
be defined, but at the same time they leave room for them. A good
example of this is true adaptive management, where the results of
ongoing monitoring are used to adjust the conservation program based on
new information and changes in circumstance.
C. Nature is full of surprises. Ecological systems are
characterized by non-linear, non-equilibrium and often seemingly random
dynamics. Both unexpected events and unanticipated consequences affect
the long term viability of any conservation solution. This uncertainty
is a given, and its runs directly counter to the political, social and
economic desire for predictability in the outcome of conservation
plans. It is better to be forthright in acknowledging that the issue of
``No Surprises'' is not a scientific question of predicting the future,
but instead a social question of how to deal with those surprises.
D. Conservation planning is interdisciplinary, but science is the
foundation. Creating a long-term solution for species and the
ecosystems on which they depend is a complicated exercise in
reconciling social, political, legal, economic and biological factors.
But if science must be one of several competing interests in the
negotiation instead of the method of evaluating how to reach specified
objectives, then conservation outcomes will always be undermined. This
raises the critical issue of how to integrate both scientific
information and scientists themselves into the planning process.
potential solutions
Given these important principles and the limitations of current
conservation planning practice and policy in crafting long lasting,
broad-scale solutions to endangered species problems, what are some
scientific improvements that can be made to the program? Fortunately,
there is now a good example of how to break the mold to improve both
the science and the policy of conservation planning.
The Natural Community Conservation Planning program in California
is an attempt to move beyond the reactive conservation planning of
tradition and to a more up-front, creative program that will provide
greater biodiversity conservation gains while at the same time,
enabling broader regulatory certainty than is possible under a single-
species, project by project oriented program.
NCCP is a useful illustration of the science issues involved in
regional conservation planning, from data use to addressing questions
of scientific uncertainty. The features that make it different, both
scientifically and politically, from HCPs (even other large scale
plans) are the way the program addresses the scientific principles
listed earlier. Perhaps the most critical among them are the clear,
regional scientific guidance that was developed early in the program,
the habitat level of conservation action that emphasizes connectivity
and landscape conservation, and how biological information has been
brought to bear on the planning process.
The elements of Natural Community Conservation Planning (identified
by the principle they address from above) that are relevant to today's
testimony are:
1. A Regional Framework for Habitat Conservation Planning, Analysis
and Implementation (Principle A). NCCPs are based on formally
delineated geographic planning regions. These regions contain a
biologically significant scale of the habitat-types that are the focus
of the planning and implementation programs. This regional framework,
both biological and political, allows for an emphasis on better long-
term habitat protection system design (large core habitat areas,
landscape connectivity, etc.) while providing planning flexibility to
allow for appropriate development and growth.
2. Habitat-based Conservation Planning and Action (Principles A and
B). Unlike traditional habitat conservation plans that generally focus
on the needs of individual species, NCCPs are created for groups of
species connected through one or more shared habitat-types or ``natural
communities.'' This approach is less concerned with the occupied
habitats of listed species than with creating a regional conservation
system based on strong principles of reserve design. By formulating
solutions and taking most conservation actions at a habitat scale,
long-term issues such as habitat fragmentation and connectivity between
significant habitat areas are generally much more effectively addressed
than by project-by-project, species oriented plans. This does not mean
that the needs of individual species were ignored in the process. Some
of them require specific attention. But rather than focusing on all
species as if they were separate, NCCPs directs conservation action at
the habitat scale.
3. Comprehensive Management and Monitoring (Principle C). All land
and water resources protected in NCCPs are managed strategically and
adaptively to increase the habitat value of protected areas over time.
Key features of adaptive management and implementation monitoring
programs include:
Feedback from a comprehensive research and monitoring
program is used to modify land and water management actions and
techniques as necessary over the life of the implementation program
Comprehensive monitoring programs include monitoring of
biological resources, assessing mitigation performance and monitoring
implementation provisions such as funding and preserve assembly
Periodic reporting is provided by the NCCP plan
implementing agency to wildlife agencies and to the public (through
workshops) to provide information and evaluate progress toward
attaining program objectives
4. Clear Scientific Guidance and Foundation (Principle D). NCCPs
are based on well-applied scientific and commercial information linked
directly and factually to decisions made under the plan. Key features
of the scientific basis for NCCPs include:
Independent (i.e., non-wildlife agency) scientists
developed regional conservation guidelines early in the process to
provide the broader biological context and scientific premises for
large-scale planning. These guidelines were applied to individual plans
and local situations
Wildlife agencies assured that species survey protocols,
habitat mapping and adherence to State law and regional conservation
guidelines are applied
Subregional and subarea plans were formulated with
scientific input from local biologists and species experts consistent
with the regional scientific guidelines
critical scientific issues addressed by nccp
When the California gnatcatcher was proposed for listing in the
late 1980's, everyone recognized it was the tip of a very large
iceberg. The consensus among all stakeholders, public and private, was
that creating conservation plans for the entire range of the natural
community and all its species was the only way to avoid the conflicts
of dozens of future listings. To address this from a scientific
perspective, the State of California assembled a panel of independent
academic scientists to develop overall guidance for regional
conservation plans. These regional guidelines were not a de-facto
recovery plan, nor were they a prescription for local conservation
solutions, but they provided a science-based framework and point of
reference for the development of local plans, as well as way to measure
the adequacy of those local plans from a regional natural community
standpoint. The guidelines were, in a sense, the ``picture on the top
of the puzzle box.''
Approaching the problem from a regional, natural community based
perspective allowed a number of key scientific issues to be dealt with.
First, regional conservation guidelines provided a scientific mechanism
for ensuring consistency of locally developed conservation plans. They
were highly credible because they were developed by independent
scientists. By addressing the issue of ecosystem scale and providing
guidance on how to approach it, the regional guidelines freed local
planners to focus on the species and habitats within their
jurisdiction, but also to integrate their efforts with an equally
critical regional whole.
Second, by focusing conservation actions on a habitat level instead
of exclusively on the individuals of a species and the habitat they
currently occupied, NCCP did a much better job than most plans of
minimizing further habitat fragmentation and even restoring habitat
connectivity. Most HCPs seem pre-occupied with protecting the existing
locations of species. For some species, this may neither be wise, nor
even scientifically supportable. But NCCP concentrated instead on
building a conservation system of the largest reserve areas possible of
high quality habitat, connected throughout the landscape. This was
obviously done with an eye to rare species locations, but these were
one of several important factors rather than the driving force for
reserve design. Some unoccupied habitat patches were protected at the
expense of occupied ones because they provided better overall reserve
design and long term viability for the natural community.
Finally, no conservation plan can eliminate scientific uncertainty.
As I stated before, surprises are inherent in nature. The real issue is
who assumes the risk. But, a legitimate scientific issue for
conservation planning is how to minimize the effect of unknowns on the
long-term conservation strategy. The best way to do this in addition to
a good regional framework and habitat based action, is with a
comprehensive adaptive management and monitoring program that provides
feedback to inform adjustment of biological management (and even
potentially reserve locations during the preserve assembly period)
based on the results of targeted research. This element is even more
important in conservation plans based in a ``working landscape'' like
timber production or agriculture or water delivery because, unlike in
urbanizing settings, both the reserves and the impact areas may not be
irreversible. In urbanizing or development settings, as with many HCPs,
most impacts are permanent. Over time, some may fall victim to
manifestation of scientific unknowns. But the best way to decrease the
potential for this occurrence is through strong, regional reserve
design and comprehensive monitoring and adaptive management.
recommendations on policy and funding
Clearly, the best way to minimize endangered species problems is
with a planning program that emphasizes preventative medicine, not
emergency room care. It is essential to reiterate, however, that our
current policy approach does not make this very easy.
Enabling a regional, habitat based conservation planning program is
difficult under the current configuration and implementation of the
ESA. It concentrates both our policy and our resources on responding to
immediate crises. The State of California had to pass special enabling
legislation in 1991 to authorize NCCP to ``sustain and restore those
species and their habitat which are necessary to maintain the continued
viability of biological communities impacted by growth and
development,'' and to ``streamline the regulatory process and provide a
structure for economic development planning that provides reasonable
predictability and assurances for future projects.'' The Federal ESA,
without benefit of any policy changes, had to be creatively stretched
to fit around those broad goals.
Of perhaps greatest importance is a source of funding to develop
and implement these plans. One lesson that has become crystal clear in
working on NCCP and other conservation plans on private lands is that
there is a gap in outcome between the mitigation the ESA requires in
exchange for incidental take and what is needed to achieve lasting
conservation of biological diversity. As long as that gap remains
unresolved, we will never reach the conservation goals for biological
diversity that we aspire to and we will never resolve the political
conflict around endangered species. Recovery of species will remain
both a lofty dream and a battle for courtrooms and lawyers. We could
argue endlessly over whose responsibility it is to fill the gap--for
example, some believe that it should be filled by requiring greater
mitigation and compensation by private parties for their impacts. But,
as I tried to explain earlier, there are habitats and places that are
important for regional conservation of biological diversity where the
ESA doesn't even apply. And there are still other places where we
simply can't allow enough impacts to listed species to generate enough
mitigation to fill the gap, even if we were politically inclined to do
so.
The real--and the most simple--answer lies in public funding to
close the gap between what the law provides for and what long-term
conservation of biodiversity requires. The current debate over re-
authorizing the Land and Water Conservation Fund seems to me to be the
perfect opportunity to create an Endangered Species Problem Solving
Fund that would allow regional, habitat-based conservation programs
that are based in sound science and that create broad conservation
solutions to receive the public funding needed to be successful. It
would both allow habitat conservation plans to achieve much better
conservation results and be a strong incentive to private landowners to
participate in the objectives of the ESA.
The Nature Conservancy is committed to work with Congress, public
agencies and private interests to help resolve the important scientific
issues surrounding habitat conservation planning. We are also fully
committed to helping ensure that funding is available for long-term
conservation successes. We focus all our own resources on this goal,
but that is not enough--we need increased public investment in
conservation. We congratulate the Committee on its vision in discussing
these issues, and I thank you very much for the opportunity to provide
input on behalf of The Nature Conservancy.
Responses by Michael O'Connell to Additional Questions from
Senator Chafee
Question 1. In your testimony, you suggested developing an
Endangered Species Problem Solving Fund and that it would provide a
strong incentive to private landowners to participate in the objectives
of the ESA. Can you elaborate on this? How would the fund be used?
Response. As habitat conservation plans have evolved over the last
two decades, they have moved toward more comprehensive, Multiple
species solutions that cover large geographic areas. In many cases,
plans have covered significant portions or even the entire range of
some species. This evolution toward more comprehensive plans has been
encouraged because it provides the opportunity to craft both broader
regulatory benefits and a much more effective conservation outcome for
both species and ecosystems. In other words, we can achieve better
conservation while planning for a geographic region than we can project
by project and species by species.
At the same time, HCPs are by definition a process to permit take
and not truly a ``conservation'' program for endangered species as
envisioned by the ESA. They do not need to recover species in order to
be permitted, in fact, they must simply avoid jeopardy for the covered
species. This can become a significant problem when a plan covers the
entire range of a species and it may even undermine the goals of the
ESA. This type of plan becomes the de facto recovery plan for those
species, but based on avoiding jeopardy, not achieving recovery.
Some have suggested investing heavily in recovery planning as the
way to avoid this problem. While this is one option, I believe that it
is limited in two very important ways. First, recovery plans are
species focused and generally don't provide real-world, practical
solutions to the conservation problems faced by species. With a few
notable exceptions, they don't confront the difficult choices faced by
actually putting conservation on the ground, such as funding, capacity,
program and data management, etc., that HCPs do. Second, recovery plans
come far too late. They are only required for listed species. Another
of the evolutionary outcomes of HCPs is that they have been conducted
in earnest for species before they become listed; in many cases before
their status is even known. This preventative medicine approach to
conservation is a good one, but it needs to have a high standard, one
not generally by HCPs.
The real dilemma behind all this, and one I believe an Endangered
Species Problem Solving Fund would help address, is one of equity in
responsibility for achieving conservation and recovery under the ESA.
HCPs generally require that those who propose take of species avoid,
minimize and mitigate their impacts. Arguably that is a fair standard,
since they if they compensate fully for their impact, then they are
doing their share of conservation. That is generally all they must do
anyway in order to get a Section 10 HCP permit. [Note: some observers
have suggested that those who propose take of species be responsible
for the entire cost of conservation? but I don't believe that is
practical or equitable].
The problem that the above discussion brings out is this: There is
a big difference in conservation outcome between what endangered
species need to persist or recover and what HCPs provide. At the same
time, HCPs are getting bigger and more comprehensive and in some cases
beginning to substitute for recovery planning. I believe this trend
will continue. I also believe that HCPs are a generally good thing,
because unlike many recovery plans, HCPs result in immediate, direct,
conservation action. Their evolution toward a more multiple species and
regional approach is also good, because it provides a significant
opportunity to create broad-scale conservation benefits and the
flexibility to balance it better with well-planned economic activity.
All this background leads me to the conclusion that the outcomes of
HCPs and the goals of the ESA are getting closer to conflict. There is
a significant ``conservation gap'' between what HCPs provide and what
the ESA envisions. That gap is measured in acres of habitat protected
and in management of habitat preserved, and the gap can only be filled
by funding. It appears over and over in HCPs for the reason stated
above: HCPs are a program to permit take, not a program to conserve
species. It is generally impractical and inequitable to demand much
more from HCP applicants than is already being done in terms of their
``share'' of the burden. The gap must be filled by public funding.
My own experience in Southern California with NCCP is that the
landowners and regulated community are doing at least their share,
often more, but there is still a great need for additional land
protection and management in order to achieve conservation and recovery
for many species in that region. Without it, many of our rarest species
in Southern California will disappear. The conservation gap exists and
is very real. As a public funding solution we are given small Federal
appropriations annually--which we are grateful for--but these pale in
comparison to the need.
An Endangered Species Problem Solving Fund--it could be
administered by anyone, Interior or Congress--would allow regional,
multiple species HCPs to tap into a source of public funding to help
close the gap between the requirements of Section 10 and the ESA's
goals. Based on experience, I and many others believe that this would
significantly streamline the process of doing HCPs (providing benefits
to landowners who often must wait years for plans to be approved) and
do a great deal to quell the controversy over HCPs in the environmental
community, who are acutely aware of the gap I have referred to. Without
it, or some other source of funding to close the gap, I am afraid that
HCPs will become more of a polarizing issue rather than the
collaborative, solution building conservation program that they have
the potential to be.
Question 2. You have been involved in the development and
implementation of one of the few systems-based conservation plans. One
of the fundamental differences between the California NCCP and other
multiple species plans is that the NCCP does not focus on counting the
numbers of each species covered. Instead, you use indicator species to
measure the success of the plan. In your opinion, is this approach
valid from a scientific point of view? In other words, are indicator
species a reliable means of assessing the status of other populations
of species? How are these indicator species selected? What are the
scientific issues that need to be addressed if you focus on preserving
ecosystems, instead of protecting individual species here and there?
Response. First, let me clear up what seems to be a little bit of
confusion between using indicators from a planning perspective and
using them from a regulatory perspective. The NCCP has effectively used
both habitat-level and species level ``target'' species as a planning
tool to make the scientific process of conservation planning more
efficient. For example, three species, the orange-throated whiptail
lizard, the California gnatcatcher and the coastal cactus wren, were
determined by a scientific advisory panel to be effective target
species for coastal sage scrub habitat (in other words, if the needs of
these three species were provided for, that there was reasonable
assurance that other species in the habitat would be conserved as
well). This made the process of reserve design for that habitat type
easier, because those three species could be ``targeted'' for
conservation.
But NCCPs do not use these species as regulatory surrogates. Each
permitted NCCP plan has a lengthy ``covered species list'' and
regulatory coverage is provided for each species. At the same time,
each species on that covered species list must be justified for
coverage on its own based on biological and scientific factors. Those
factors may include the fact that its known habitat needs are covered
by coastal sage scrub and that coastal sage scrub habitat was protected
using the three target species, but each coverage decision is made on a
species by species basis.
Where the efficiency of a systems and target species based approach
such as NCCP comes in is that the coverage decision can be made much
more efficient. Because planning is done with respect to several
ecological scales (natural communities, species, natural processes),
species are much more efficiently conserved and evaluated for
regulatory coverage than if they were being planned for one at a time.
This is the real efficiency of a natural systems approach.
It is critical to note that the targets have to be very carefully
evaluated, and may only be valid for some of the species desired for
regulatory coverage, not all. The idea of ``indicator species'' is
controversial and unproven in the scientific community, but the known
associations and interrelationships of species in a habitat can
nevertheless be used to make the process of planning and coverage
determinations more straightforward. For example, in NCCP, the three
target species are useful in conserving coastal sage scrub habitat, but
there are several plant species found in coastal sage scrub that are
highly localized in their distribution and are not ``indicated'' very
well by those species. Likewise, there are several other habitat types
that are not indicated well by those coastal sage scrub species.
Further, these same biological efficiencies can be used effectively
during implementation of a regional habitat based plan. The best
example I know of is the California gnatcatcher. Populations of this
species are highly volatile, mostly due to climatic factors. Several
experts on this species have stated publicly that perhaps the most
inefficient way to gauge the status of gnatcatchers is to count the
number of individuals, because the populations may change rapidly from
year to year. Populations could rise or fall dramatically and we would
have no way of knowing why if all we were doing was counting them. A
much better way to monitor the status of gnatcatchers, in addition to
occasional population counts, would be to develop a set of habitat
indicators (called a habitat suitability model) and measure those. They
might include anything that is known to be a factor in gnatcatcher
survival such as--hypothetically--time since fire, percent ground
cover, height of vegetation, etc. Measuring those would give a better
indication of the overall health of the habitat and therefore
populations of gnatcatchers, and more importantly, help determine WHY
changes were occurring, than simply population surveys alone.
So the ultimate answer to the question is both yes and no. In some
cases, targets for both species and habitats can provide a good deal of
biological and planning efficiency in achieving conservation outcomes.
When they are valid, targets and indicators can make the process of
reserve design more efficient and the process of implementation and
adaptive management more accurate and cost effective. But at the same
time, I would urge strong caution of using indicators as a regulatory
surrogate for covering species. We know so little about how species and
habitats interact that relying on such indicators as the sole tool for
evaluating conservation action is guaranteed to be wrong. This is
especially true when using habitat-types as indicators for species. In
addition to habitats being difficult to define (certainly more
difficult than species), they may work better for some than for others.
For example, coastal sage scrub is a reasonable indicator for
gnatcatchers, because if you have good quality coastal sage scrub, then
you will most likely have gnatcatchers. But the same rule doesn't apply
to many of the herpetofauna, insects and plants that have spotty
distributions in coastal sage scrub or of the species that use coastal
sage scrub as well as other habitat-types to survive. The indicator
concept breaks down for those species.
In NCCP, we have learned that applying biological information well
to the problem of designing and managing conservation systems means
using a number of tools, including habitat indicators, target species,
and species-by-species surveys if necessary. The ultimate result is a
covered species list, and each of the species on that list receives an
individual determination. The key is how the determination is made,
whether based on habitat protected, number of individuals conserved or
associations with other conserved species. Importantly, those same
determinations may be the measures used to evaluate the success of the
plan over the long term.
With all great respect then, the more accurate description of t]he
fundamental differences between the NCCP and other multiple species
plans is that NCCP doesn't ALWAYS focus on counting the numbers of each
species covered. It doesn't have to, because planning is made more
efficient through the use of a number of tools, including target or
indicator species.
______
Statement of Laura C. Hood, Conservation Planning Program Manager,
Defenders of Wildlife
Thank you for inviting me to testify regarding the scientific
aspects of habitat conservation plans (HCPs) under the Endangered
Species Act (ESA). My name is Laura Hood and I am the Conservation
Planning Program Manager at Defenders of Wildlife (Defenders), a non-
profit conservation advocacy group consisting of over 300,000 members
and supporters. Defenders is headquartered in Washington, DC., with
field offices in Oregon, Washington, Florida, Montana, Alaska, Arizona,
and New Mexico. Defenders' mission is to protect native animals and
plants in their natural communities. As an organization that is
committed to science-based management of endangered species on public
and private land, Defenders has been heavily involved in individual
HCPs and HCP policy at the national level.
summary
Defenders recognizes the potential for HCPs to encourage private
landowners to actively conserve not only endangered species but
multiple species and communities. Nevertheless, we have grave concerns
over the way HCPs have been implemented in the past, both in terms of
the lack of scientific content and overall loss of habitat. Multiple
studies and reviews have concluded that major gaps exist between the
HCPs that have been developed thus far and what would constitute a
scientifically sound HCP.
The lack of information available for HCPs does not always imply
that plans should not be developed; rather, we suggest policy changes
that would encourage precautionary, scientifically based HCPs that
reduce risk for endangered species.
First, improve the amount of scientific information
underlying HCPs through:
better recovery plans
designation of critical habitat
development of regional conservation strategies
increased involvement by independent scientists
Second, scientific uncertainty will always exist,
therefore HCPs must incorporate measures for reducing the risk to
species that such uncertainty creates. HCPs must:
be more precautionary in nature
include adaptive management
modify existing ``No Surprises'' assurances
be consistent with the recovery of species
In two important ways, the Services have recognized the need for
such improvements to HCPs. They have published a new rule that allows
for revocation of a take permit if the HCP is shown to be jeopardizing
an endangered species. Second, they have drafted an addendum to their
HCP Handbook that encourages adaptive management, biological goals, and
monitoring. Because the guidance does not impose requirements upon HCP
applicants, we continue to advocate for assurances for species that are
comparable to landowner assurances under the ``No Surprises'' Rule.
background
HCPs have been authorized under the ESA since 1982, but only 12
HCPs were approved between 1983 and 1992. Since 1992, however, there
has been an explosion of such approvals--as of 25 March 1999, the Fish
and Wildlife Service and the National Marine Fisheries Service (``the
Services'') approved 251 HCPs covering over 11 million acres, with over
200 in development. Part of the impetus for the increase in HCPs was
the ``No Surprises'' policy, established in 1994. The policy gives
assurances to landowners that they will not have to provide additional
funding or land commitments beyond what is included in the HCP. Despite
vehement opposition by conservation organizations and scientists, this
policy became a rule in 1998. HCPs can last for an unlimited time, and
the area of individual HCPs varies from less than one acre to 5 million
acres. Indeed, HCPs have become one of the most prominent mechanisms
employed by the Services to address the problem of threatened and
endangered species on private lands.
Starting in 1996, Defenders formally started research that would
culminate in our 1998 report on HCPs, entitled Frayed Safety Nets:
Conservation Planning under the Endangered Species Act. In researching
Frayed Safety Nets, we reviewed plans nationwide, then we selected a
representative sample of 24 plans and evaluated them using criteria
that should be satisfied in order for plans to lead to conservation
benefits on private land. In the course of the research, we read each
plan and associated documents, obtained any associated recovery plan
for the species involved, and interviewed key plan officials. In this
way, a detailed picture of the strengths and weaknesses of each plan
emerged. The report itself summarized the plans and focused on the
science, public participation, funding, and legal aspects of HCPs. Our
objective was to point out the best and worst examples of these aspects
of HCPs, and to examine national trends. Our findings showed that as
they were being developed, many plans represented large risks to
endangered species because often they lacked an adequate scientific
basis, they were difficult to change over time if they resulted in
unexpected harm to species, and they were inconsistent with species
recovery. I will be discussing some of our findings and recommendations
in more detail today in my testimony.
In January 1999, a team of 119 independent scientists issued its
own report on the scientific basis of 43 HCPs from across the country.
Defenders has been engaged in activities associated with that study of
HCPs, which was sponsored by the National Center for Ecological
Analysis and Synthesis (NCEAS) and the American Association of
Biological Sciences (AIBS). We've also been involved in followup to
that study's findings, in identifying methods that are palatable to
scientists and landowners of improving scientific information for HCPs.
As a result of these studies and excellent research by other
organizations such as the National Wildlife Federation, American Lands
Alliance, National Audubon Society, and the Natural Heritage Institute,
a disturbing picture of HCPs emerges. Put simply, it is far from
certain that HCPs will be successful in stemming the further decline of
rare species. Indeed, they often authorize the types of activities
which have endangered habitat and destroyed ecological communities
across the U.S. As they have been constructed so far, HCPs are not
species protection plans leading to the recovery of species. They often
result in a net loss of habitat, resulting in a hemorrhaging system of
habitat across the country. Because these impacts are permitted under
HCPs with large geographic scopes and long durations, HCPs pose great
risks to endangered species. The risks to species are raised even
higher when landowners receive ``No Surprises'' assurances that they
will not have to pay for changes in HCPs if the plans are having
unintended detrimental consequences for species. I do not believe that
the solution to this problem is to abolish HCPs, but the key to
improving the prospects of species' survival is to reduce the risk that
current HCPs entail.
The Endangered Species Act
As a backdrop to my testimony today, I would like to first consider
how the ESA is designed to orchestrate the protection and recovery of
imperiled species. As currently constructed, the ESA has all of the
building blocks for supporting management and restoration of endangered
species according to ecological principles and information. At its
core, the purpose of the ESA is to conserve species and the ecosystems
upon which they depend. This recovery-oriented purpose underlies every
action conducted under the authority of the Act. Recovery plans, in
turn, are supposed to provide scientifically based blueprints for the
conservation of species under the Act. Indeed, we expect that recovery
plans of the future will contain the scientific information and
comprehensive, range-wide strategies that will guide not only Federal
activities but mitigation guidelines and private landowner incentives,
as well. The designation of critical habitat should strengthen the
scientific infrastructure for conserving a species by providing
information and guidance for Federal agencies as well as private
landowners. Indeed, it is arguably irresponsible to permit habitat
destruction when critical habitat has not been identified and
designated. We discuss the nexus between critical habitat and habitat
conservation plans further, below.
Finally, habitat conservation plans and Federal agency
consultations permit some degree of ``take'' of endangered species,
provided actions are taken to offset that harm to the species. If a
scientifically based recovery plan and critical habitat have been
established for a species, such information and ecosystem-based
strategies would provide an excellent infrastructure for constructing
HCPs, with less of the ``guesswork'' that currently plagues landowners
and the Services alike. Unfortunately, as the NCEAS/AIBS study
revealed, basic information does not exist for many endangered species.
Recovery planning has been underfunded and many plans do not have the
amount of information or guidance that is necessary for them to be
useful to private landowners. Despite the requirement for the Services
to use the ``best available science'', this requirement does not demand
that they acquire information when ``available'' science is
insufficient. Not only must we build a better infrastructure of data
using recovery plans, critical habitat designation, and ``best
available science'', but we must reduce uncertainty and risk for
species when that infrastructure falls short.
science and hcps
The process of science enters into nearly every aspect of the HCP
process. For example, in order to assess how much of a population will
be ``taken'' under development or logging activities, a landowner must
often employ biological surveys. Take may involve, as another example,
land that is adjacent to an endangered bird's nest. In this case, it is
necessary to have data on the expected home range of the bird pair and
what habitat fledglings may use for dispersal. Beyond information on
the amount of ``take'' under the HCP, the Services must determine the
likely impact of that take on the species in question. This requires,
among other information, scientific data on the global status and
distribution of the species, what proportion of the species' range is
affected by the HCP, and whether the HCP area contains excellent or
poor habitat compared to other parts of the species' range.
In order to understand what activities would be most effective in
minimizing that take and mitigating it, landowners must understand the
primary threats to species, and employ protection and management
techniques that are data intensive. For example, the Washington
Department of Natural Resources (DNR) has constructed an HCP for
Northern spotted owls on 1.6 million acres of forest. According to
their basic conservation strategy, spotted owl nesting habitat that is
isolated from federally protected areas can be harvested, while habitat
that is adjacent to such protected areas will be preserved. In this
case, sophisticated ecological information is required to determine
whether a forest tract is sufficiently isolated from federally
protected habitat. Finally, scientific and statistical methodologies
are necessary for designing appropriate biological monitoring and
adaptive management in HCPs.
Unfortunately, despite the critical importance of scientific data
for HCPs, abundant evidence indicates that HCPs have fallen short of
expectations for scientifically based plans. Much of the missing
information concerns the status of the species addressed: according to
the NCEAS/AIBS study, available data were insufficient to evaluate the
current status for more than a third (36 percent) of species in HCPs.
HCPs often involved mitigation strategies that have little data to
indicate their probability of success. On a 4-point scale from 0 to 3,
the quality of data underlying the choice of mitigation strategies was
usually between 1 (very little, or quite unreliable) and 2 (moderately
well-understood and reliable). This indicates that the selection of
mitigation techniques was often little better than a guess. In Frayed
Safety Nets, we found examples of manipulative management techniques
(e.g., translocation) that often were not supported by data, we found a
general lack of biological monitoring, and we found an almost total
lack of formal independent scientific review. These troubling results
indicate that the system for species protection under the ESA,
including recovery planning, critical habitat, and best available
science, has not provided the data infrastructure that is necessary for
adequate conservation planning.
As the NCEAS/AIBS study recommended, a much greater effort is
needed to collect data on species and keep that information in
centralized, readily accessible locations. Beyond the need for more
information and better information management, however, HCPs must
incorporate better ways of managing uncertainty and risk that results
from insufficient data.
opportunities to increase scientific information for hcps
Recovery Plans and Regional Conservation Plans
To improve the scientific information underlying HCPs, planners
must gather much better information about species and habitat
distribution on property covered by the permit. Equally important,
however, is organized, centrally accessible data on how populations on
the HCP land ``fit'' within a larger picture of the status and
distribution of the species throughout the larger region.
Recovery plans for individual or multiple species can serve as
repositories of comprehensive information on the status and
distribution of species addressed in HCPs. Most species have recovery
plans, however, it is extremely important to strengthen and update the
scientific information contained in them. Recovery plans can also
contain guidance on mitigation and habitat management. Having
information-rich, updated recovery plans to guide HCPs puts HCPs within
the context that they belong: into the sphere of recovery.
Increasingly, institutions are developing regional or ecosystem-
based conservation management plans to preserve viable populations of
species and representative distributions of natural communities. These
plans are developed through a process of gathering all of the
geographically based information on those species and communities in
the region, examining how well they are currently protected, and
identifying vulnerable resources and critically important areas. Some
examples of these conservation management plans are the gap analysis
projects going on in many states, The Nature Conservancy's ecoregional
planning, and Defenders of Wildlife's Oregon Biodiversity Project.
Comprehensive, regional plans like these can provide the information
and context for much better HCPs that take cumulative effects and ``the
big picture'' into account.
Critical Habitat
Another essential plank in the platform underlying scientifically
sound HCPs is the designation of critical habitat for endangered
species. Once information is collected for recovery plans and regional
conservation strategies, it should be obvious what areas are essential
for the continued existence of endangered species. The vast majority of
endangered species are primarily threatened by habitat loss, and
identifying habitat that deserves special protection is one of the
first steps toward stemming further population declines. The
designation of critical habitat can aid the recovery of species by
protecting occupied habitat as well as habitat that is necessary for
dispersal, migration, or range expansion. With regard to HCPs, the
Services must determine what habitat is critical for species' survival
and recovery before permits are granted to destroy habitat. It is
extremely risky to permit the destruction of habitat that may be
critical to the species' survival and recovery.
In debates over the merits or disadvantages of designating critical
habitat, the Fish and Wildlife Service has protested that often, there
is insufficient information for delineating critical habitat. If there
is insufficient information for designating and protecting key habitat,
however, there is insufficient information for granting permits to
destroy habitat through HCPs.
We are hopeful that the recent designation of critical habitat for
the endangered cactus ferruginous pygmy-owl (Glaucidium brasilianum
cactorum) in Arizona will provide a good example of the utility of
critical habitat designation for conservation planning. Pima County,
Arizona is engaged in the preliminary stages of a regional, multiple-
species HCP process, combined with a Sonoran Desert Conservation Plan
(SDCP) for protecting sensitive habitat as well as other open space.
These planning efforts (SDCP/HCP) were spurred by obligations for
protecting the pygmy-owl. The bird's population in Arizona is extremely
small (fewer than 75 known individuals based upon incomplete surveys),
and the majority of individuals live in desertscrub habitat in a
rapidly developing area to the northwest of Tucson. Because development
is occurring so quickly and land values are increasing, the critical
habitat designation should provide a basis for spurring additional
habitat acquisition from willing sellers and should provide guidance to
private landowners in pygmy-owl country.
Involving Independent Scientists
The process of developing conservation plans always involves
biologists from the Services and usually involves the landowner's
biologists (either on staff or in a hired environmental consulting
firm); involvement or review by outside experts occurs occasionally. In
HCP development, independent scientists who have expertise in the
species and habitats of concern can lend important data and advice on
management and preserve design. In addition, review of plans by
independent scientists can increase the quality and credibility of the
biological information and conservation strategies. Independent review
of monitoring and adaptive management programs can be particularly
helpful, because such programs can be quite complex. We recommend that
independent scientists be consulted much more often as HCPs are
developed. While we do not necessarily advocate independent peer review
of every HCP, independent scientific involvement should be more
prevalent and it should start early in the HCP development process.
Interested members of the public who will be affected by the HCP should
also be involved early in HCP development.
recommendations for managing risk in hcps
By improving independent scientific involvement, recovery plans,
and critical habitat designations, the amount and use of scientific
data for HCPs should improve. Because there will never be perfect
information for making HCP decisions, however, it is essential to
recognize scientific uncertainty in the HCP process and implement
procedures for managing risk to endangered species and to landowners.
The U.S. Government has largely minimized uncertainty for
landowners in HCPs through the ``No Surprises'' Rule, which provides
that they will not have to commit more money or land in the HCP than
what was delineated in the plan. Minimizing uncertainty associated with
predicted effects on endangered species, however, remains to be done.
Incorporate Precautionary Measures and Adaptive Management
To ensure that impacts to imperiled species are indeed being
minimized and offset as much as possible, HCPs must recognize and
address scientific uncertainty. When data are sparse, as they are for
most threatened and endangered species, it may be difficult or
impossible to adequately assess the threats to and future prospects for
population viability. This inadequacy does not override the importance
of ensuring that such viability is not compromised. Instead,
standardized protocols should be developed to recognize where
uncertainty exists and take it into account while an HCP is still under
development.
In the face of limited information to guide an HCP, planners can
minimize uncertainty for species in two ways: incorporating
precautionary measures and improving its effectiveness over time
through adaptive management. When information is scarce, precautionary
measures can be incorporated into HCPs in multiple ways, including
intensively investigating alternatives to ``take''; ensuring that
mitigation is successful before take occurs (where possible); and
limiting the duration of take permits and assurances.
Adaptive management, or mid-course changes in management based upon
monitoring information, environmental fluctuations, or additional
scientific information about the species, is an essential component of
scientifically based HCPs. In particular, one would expect that when
uncertainty about species is high, HCPs would have more adaptive
management provisions (e.g., mid-course corrections). The NCEAS/AIBS
report revealed, however, that when uncertainty about mitigation for
species was high, HCPs were actually less likely to contain a
discussion of future changes in management strategies: 45 percent of
the 38 cases with insufficient data on mitigation included a discussion
of changing management over time, whereas 77 percent of the 48 cases
with sufficient data did so. In our analysis for Frayed Safety Nets, we
found few examples of adaptive management. From that sample of 24
plans, the Washington Department of Natural Resources HCP was the only
example in which the permittee would conduct research and adaptive
management over time, AND it would waive ``No Surprises'' assurances if
changes in management proved to be more costly than anticipated.
Modify the ``No Surprises'' Rule
Ever since the ``No Surprises'' policy was initiated in 1994,
scientists have protested its inherent restriction on changing
management of endangered species in response to fluctuating
environmental conditions or new scientific information. In 1996, a
group of 167 scientists wrote: ``In a nutshell, [No Surprises] does not
reflect ecological reality and rejects the best scientific knowledge
and judgment of our era. It proposes a world of certainty that does
not, has not, and will never exist'' (letter available with this
testimony). Since then, ``No Surprises'' assurances have been expanded
so that they apply for long time periods (up to 100 years), and
landowners receive assurances for multiple species that may be listed
in the future. This expansion of assurances exacerbates the scientific
problems associated with ``No Surprises''. From an environmental policy
perspective, the ``No Surprises'' Rule has no precedent in
environmental regulations of any kind. Private interests have simply
never been granted permits with such immunity from the repercussions of
their actions.
Under ``No Surprises'', adaptive management is fundamentally
restricted by the fact that no additional money or land can be required
of permittees. Perhaps more importantly, under ``No Surprises'',
landowners have a disincentive to incorporate adaptive management into
their HCPs. Since ``No Surprises'' assurances are granted whether
adaptive management is incorporated into an HCP or not, landowners have
no reason to introduce uncertainty into their responsibilities under an
HCP. A more rational policy would grant assurances to landowners based
upon the likely benefit or impact to the species, the amount of
information available, and the extent to which the landowners
incorporate monitoring and adaptive management. H.R. 960, the
Endangered Species Recovery Act, contains one solution to this problem
because it would establish a Habitat Conservation Plan Fund and require
performance bonds to cover the costs of implementing additional
conservation measures.
Ensure That All HCPs Are Consistent with Species Recovery
Finally, risks to endangered species would be greatly reduced if
HCPs were required to promote species' recovery. Indeed, the word
``conservation'' is defined in the ESA as efforts directed toward
recovery and delisting. Currently, the Fish and Wildlife Service does
not require such consistency, despite the fact that HCPs can cover such
vast areas, including a high proportion of some species' entire ranges.
If recovery does not occur under HCPs, some species will simply never
recover. When an adequate recovery plan exists, it becomes easier to
determine whether an HCP is consistent with overall recovery.
conclusion
Although the analysis of HCPs by scientists and conservation
organizations has painted a gloomy picture of the scientific basis for
these plans, we see some hope in the future for improving HCPs. In two
important ways, the Services have acknowledged the need for HCP
improvement. They have published a new rule that allows for revocation
of a take permit if the HCP is shown to be jeopardizing an endangered
species. In addition, the ``5-Point Plan'' guidance that the services
have drafted contains some of the solutions to the dilemma we face. The
draft guidance contains encouragement for HCPs to include adaptive
management, biological monitoring, and identification of biological
goals. Because these measures are not required through regulations, we
can only hope that landowners are willing to comply with this guidance.
These measures to improve HCPs are costly, but consider the cost to the
general public down the line and for future generations if HCPs fail to
conserve species.
______
Responses by Laura Hood to Additional Questions from Senator Chafee
Question 1. You stated in your testimony that the amount of
scientific information underlying HCPs can be improved through better
recovery plans and designation of critical habitat. However, in
practice, many HCPs are developed well before recovery plans have been
drafted or critical habitat designated. In light of that, what can
landowners reasonably do to ensure that they are using the best science
that is readily available?
Response. As you are aware, this is a valid and important concern
for many private landowners. It is unfortunate that recovery plans
often require years to develop after a species is listed, and many
private landowners wish to move ahead with HCPs before the U.S. Fish
and Wildlife Service and the National Marine Fisheries Service (``the
Services'') finalize the relevant recovery plan. For species that have
been listed for many years, the relevant recovery plans may be so out
of date that they do not contain the best available science upon which
to base an HCP. As for critical habitat, U.S. Fish and Wildlife Service
has designated critical habitat for only approximately 9 percent of
listed species, therefore, many HCPs must go forward without the
benefit of designated critical habitat for guidance.
In some cases, it may be impractical to delay HCP approval until
the Services have developed a recovery plan and designated critical
habitat. Of course, this in no way relieves the applicant and the
Services from developing a plan that is consistent with species
recovery and uses the best available scientific information. One way to
address this dilemma is for the Services to develop a conservation
assessment in the listing notice or immediately upon listing. This
assessment would contain mitigation guidance for nonFederal landowners.
Since the best available scientific information should go into a
listing determination, the determination provides an opportunity to
provide preliminary guidance on what measures might be most effective
in mitigating the species' most important threats.
More importantly, HCPs that are being developed without the benefit
of recovery plan and critical habitat information must include
additional steps to include available information and minimize risk for
species when information is lacking. In my testimony, I recommended
that HCP developers involve independent scientists, particularly when
information is missing. Involving independent reviewers allows all
parties to know whether all available information is being used, to
identify gaps of information that must be filled immediately, to
evaluate risks of different HCP alternatives, and to give all parties
greater confidence in the likely effectiveness of the HCP. In addition
to independent scientists, it may also be appropriate to involve
recovery team members, to ensure that the nascent recovery plan and HCP
are consistent.
In my testimony, I also suggested a number of different measures
that should be undertaken in the face of insufficient information for
HCPs. These measures are all the more crucial when a recovery plan and
critical habitat designation are missing. If HCP developers can
incorporate precautionary measures and adaptive management, then the
lack information will not result in irreversible mistakes that pose
unacceptable risks for threatened and endangered species.
Question 2. How should the ESA be changed to provide for greater
public involvement in the HCP process?
Response. This question is also extremely important because HCPs
are management plans that affect large areas for long periods of time.
They affect not only endangered species but often open space
availability, air quality, and water quality. Unfortunately, effective,
meaningful input from the full variety of stakeholders is extremely
rare for HCPs. In part, this stems from current government policy that
when single landowners develop HCPs, they can choose whether outside
parties get involved.
Nevertheless, citizens need to be able to be involved in all stages
of the HCP process, from scoping to plan development to biological
monitoring. This is especially important for any large-scale, multiple-
species HCP. Many large, multi-landowner HCPs already have public
involvement because local governments take the lead on plan
development. But this needs to be more common in all large HCPs,
regardless of whether a government agency leads plan development or
not. One solution is for the Services to adopt regulations that lay out
public participation requirements that depend upon the scale and
duration of plans. In a variety of situations, the Services have
considerable experience in creating steering committees or other groups
to facilitate public involvement, and this experience can help the
Services craft regulations that would provide for more consistent
public participation.
Finally, a simple step to increase public input for HCPs is to
require a minimum of 60 days for public comment on draft HCPs. The 30
days currently provided for public comment is inadequate for citizens
to become aware of a draft HCP, receive the documents, and provide
meaningful comments.
Question 3. Should improvements to the science of HCPs be
mandatory? In other words, should all HCP applicants be required to
undertake measures to improve the scientific basis of their individual
HCPs?
Response. To answer your third question, I do believe that some
scientific improvements for HCPs ought to be required. Recently, the
Services published a draft ``Five-point Plan'', addendum to their HCP
Handbook which contained several necessary improvements for science in
HCPs. The draft addendum recommended that each HCP have explicit
biological goals, that biological monitoring become standard for HCPs,
that adaptive management be incorporated for HCPs that lack adequate
scientific information, and that the duration of HCPs be limited when
information underlying the HCP is scarce. The draft addendum is an
example of how principles and procedures can be adopted for HCPs
without imposing specific requirements that may not be appropriate for
every HCP. For example, it is obvious that a large, multiple-species
HCP would require a larger investment in biological monitoring than a
small HCP. It would be counterproductive, however, to require that
every HCP, regardless of size, monitor a certain number of habitat
characteristics according to a certain sampling scheme.
Although the guidelines in the draft addendum will result in
improvements in many HCPs, they will not be incorporated into the
Services' regulations governing the approval of HCPs and issuance of
incidental take permits. I see no legal or policy reason for why they
are being proposed as guidance only. As I said in my testimony, not all
HCPs are bad for species, but regulations are necessary for preventing
HCPs that are scientifically bankrupt or inconsistent with species
recovery. In fact, currently, landowners arguably have a disincentive
to develop effective adaptive management for HCPs. When all landowners
automatically receive ``No Surprises'' assurances that they will not
have to pay for costly changes that may become necessary under HCPs,
they are unlikely to voluntarily include adaptive management provisions
that would introduce uncertainty into their HCP obligations. Instead,
it is entirely appropriate to require improvements to the HCP process
in order to facilitate the incorporation of good scientific information
and the scientific process.
______
Attachments Submitted by Laura Hood, Defenders of Wildlife
Statement on Proposed Private Lands Initiatives and Reauthorization of
the Endangered Species Act from the Meeting of Scientists at Stanford
University
When the Endangered Species Act was authorized in 1973, Congress
charged the Departments of the Interior and Commerce to conserve the
ecosystems upon which threatened and endangered species depend, and to
do so ``using the best available scientific and commercial data.''
Despite remarkable growth in our scientific understanding of the
conservation needs of threatened and endangered species during the past
two decades, controversy continues to surround the Act, especially as
it affects the use of private land. The Act's provisions for the
treatment of imperiled species on private land are of major
conservation concern both because, according to some estimates, more
than half of all listed species occur wholly on private land, and
because listed species on private land are faring worse in general than
those on Federal lands.
Various bills recently introduced in Congress propose changes in
the Act's provisions for treating listed species on private land. The
private lands provisions proposed in draft legislation would modify the
habitat conservation planning (HCP) language of Section 10(a) of the
Act. The HCP process was designed to mitigate substantially the impacts
of otherwise legal activities on listed species. However, many recent
HCPs have been developed without adequate scientific guidance and there
is growing criticism from the scientific community that HCPs have the
potential to become habitat giveaways that contribute to, rather than
alleviate, threats to listed species and their habitats.
The proposed new provisions have the potential to either improve or
worsen the conditions of listed species on private lands, depending on
whether or not habitat conservation planning and management are based
on objective scientific evidence and methods. To provide guidance on
the scientific implications of proposed private lands provisions, a
group of nationally respected conservation biologists met at Stanford
University in February. Among the undersigned are ecologists and
geneticists with extensive experience in conservation planning for
imperiled species. Our group includes individuals with widely differing
positions on how best to achieve the goals of the Endangered Species
Act. The diverse composition of our group should give weight to our
conclusions.
In considering private land conservation planning initiatives, we
restricted ourselves to five agenda items that recur in draft bills and
ongoing discussions in congressional and conservation circles: (1) the
``No Surprises'' policy, (2) multiple species conservation planning,
(3) ``safe harbor'' initiatives, (4) prelisting agreements, and (5)
small-parcel landowner initiatives. We understand that this is not an
exhaustive list of potential private lands policies and programs. We
also recognize that there is overlap among many of the proposed
provisions, for example, the No Surprises policy is often viewed as an
obligatory component of the other proposed provisions.
As the following discussion makes clear, we believe that the
current proposed private lands amendments to the Endangered Species Act
will not further the Act's goals unless those measures are implemented
in a scientifically sound manner. However, our group believes that with
essential stipulations, ``landowner-friendly'' initiatives can assist
in meeting our nation's goal of protecting its unique and valuable
natural heritage.
no surprises
More aptly labeled ``fair assurances'' to landowners, ``No
Surprises'' policy promises that if private landowners protect targeted
species under a Habitat Conservation Plan or the equivalent, they then
will not have to underwrite future conservation requirements that may
develop due to new information or changed circumstances. Should the
species require further conservation efforts, the costs would be
largely borne by the public rather than the landowners.
A ``No Surprises'' policy is troubling to scientists because it
runs counter to the natural world, which is full of surprises. Nature
frequently produces surprises, such as new diseases, droughts, storms,
floods, and fire. The inherent dynamic complexity of natural biological
systems precludes accurate, specific prediction most situations; and
human activities greatly add to and compound this complexity. Surprises
will occur in the future; it is only the nature and timing of surprises
that are unpredictable. Furthermore, scientific research produces
surprises the form of new information regarding species, habitats, and
natural processes. Habitat Conservation Plans, therefore, are
inevitably developed and authorized under conditions of substantial
uncertainty and may ultimately prove inadequate. Unless conservation
plans can be amended, habitats and species certainly will be lost.
We appreciate that ``No Surprises'' policy is not a guarantee that
conservation plans will not change, but a contractual commitment to
shift some of the financial burden of future changes in agreements to
the public. In that light, the following features should constitute
minimum standards for HCPs with ``No Surprises'' assurances. First, it
must be possible to amend HCPs based on new information, and it should
not require ``extraordinary circumstances'' to do so. Second, to
underwrite program changes when parties other than the landowner
request and justify them, there must be a source of adequate, assured
funding that is not subject to the vagaries of the normal appropriation
processes. We expect that the costs of fixing inadequate HCPs may be
substantial. Third, mechanisms to ensure that long-term conservation
plans will be monitored adequately are essential. Monitoring habitat
changes or ecosystem functions cannot substitute for the monitoring of
target species. Moreover, new scientific information from monitoring
should be incorporated into management as that information becomes
available. Fourth, HCPs must clearly articulate measurable biological
goals and demonstrate how those goals will be attained under the plans.
Plans should not undermine the recovery of listed or vulnerable
species. Fifth, assurances to landowners should only be extended for
those targeted species for which the plan articulates species-specific
goals that further conservation in a regional context, rather than in a
local, piecemeal fashion.
multiple species hcps
Although Habitat Conservation Plans originally focused on
individual species in local areas, today many planners are finding it
preferable (biologically and often economically) to plan for multiple
species over entire regions. In the absence of scientifically credible
recovery plans, multiple-species HCPs should clearly articulate
conservation goals and must demonstrate their contribution to the
conservation or recovery of targeted species. In addition, muitiple-
species HCPs should assume an extra burden of rigor, requiring
independent scientific review of goals, design, management, and
monitoring. There should be a standing body of independent scientists
to establish minimum scientific and management standards for multiple-
species HCPs. The comprehensiveness of independent scientific review
should be appropriate to the size and duration of the plan.
Muitiple-species Habitat Conservation Plans cannot be based solely
on the distribution and extent of different habitat types because this
information does not yield effective predictions of the distribution
and abundance of individual species. Such HCPs, therefore, must focus
on specific target species, such as endemic, listed, indicator, and
keystone species. If one species is chosen as an indicator of the
status of another species of conservation concern, the plan should
validate the connection between them. Species that are critical for
ecosystem integrity, whether or not they are listed as endangered or
threatened, should be among the indicators chosen. In addition, the
viability of all target species ``covered'' by a plan must be
considered in a greater regional context, often well beyond the
boundaries of the planning area itself. Adequate distributional and
ecological information should be made available to assess the plan's
impacts on all covered species.
Multiple-species Habitat Conservation Plans must include adequate
research and monitoring programs. The target species covered by the
plan, such as endemic, listed, indicator. and keystone species, must be
monitored individually. Plans also must include an adaptive management
program, so that management can be improved in the light of new
information obtained by monitoring or other means. As is the case for
``No Surprises,'' besides being amendable, multiple-species HCPs must
have an assured source of funds to support potential amendments.
safe harbor initiatives
Safe harbor initiatives encourage private landowners to increase
the amount of habitat available to endangered species. In the past,
many landowners have been reluctant to restore or enhance habitat for
fear of incurring added regulatory burdens that will curtail future use
of their property. Under safe harbor policy, the landowner is obligated
to maintain only the baseline utilization of the property by the
species prior to habitat improvements, which means that the landowner
will be free to undo those improvements at a later date.
Most of our group believes that deleterious consequences to
protected species from safe harbor initiatives will be infrequent and
that safe harbors could prove to be an important inducement to
overcoming landowner unwillingness to take actions beneficial to
imperiled species. Nonetheless, two concerns should be addressed in
safe harbor agreements. First, the concepts of ``baseline population''
and ``utilization'' require a clear definition. Sources of scientific
uncertainty should be addressed in defining the baseline status of
species, just as for the No Surprises policy. The determination of the
safe harbor baseline depends on reliable survey techniques and
scientific interpretation. Second, some species may be better
candidates for safe harbor agreements than others as a result of their
distribution, resource needs, and habitat area requirements. Species
are distributed across diverse landscapes with habitat areas of varying
quality. In addition, species vary widely in their ability to move from
one area of habitat to a neighboring one. Thus, we believe that the
value of safe harbor agreements must be evaluated on a species-by-
species basis. In the absence of scientifically credible recovery
plans, safe harbor agreements should document their potential
contributions to the conservation or recovery of target species within
an entire region rather than on a single piece of private property.
prelisting agreements
Under a prelisting agreement, a landowner would take actions to
benefit an unlisted rare or declining species before it is listed. This
has the potential to benefit species conservation because a species is
afforded no protection on private land under the Endangered Species Act
until it is listed. Nevertheless, prelisting agreements must not become
an easy substitute for necessary listings.
Prelisting agreements often will be negotiated in the face of
significant levels of scientific uncertainty--we know little about many
of our listed species, less yet about many unlisted species. Because
prelisting agreements should benefit species, we recommend an enhanced
level of attention and critical review of the biological circumstances
under consideration in proposed prelisting agreements. The Federal
Government will have to deal with an inevitable shortfall of
information; that situation can be partially corrected by (1)
developing the most complete data base possible to inform the decision,
(2) clearly articulating how the prelisting agreement will benefit the
targeted species, and (3) applying the necessary concomitants of the
``No Surprises'' policy. The latter should include an ability to amend
agreements, the availability of funding to support amendments, adaptive
management with effective program monitoring, sufficient consideration
of the regional planning context, and independent scientific review.
small-parcel landowner initiatives
Considering the cost, complexity, and time required to complete
Habitat Conservation Plans and implement them, the idea of expediting
the permitting process for small landowners is attractive. But we note
that in many areas with imperiled species, private landholdings consist
almost entirely of small parcels. When both large and small parcels are
interspersed, the small parcels may contain most of the key habitat.
Either way, the cumulative impacts of many small projects on imperiled
species may be substantial. In addition, me relative impacts of small
landowner activities vary greatly depending upon which endangered or
threatened species live on their land. The loss of but five acres of
remnant habitat could doom to extinction more than a few listed
species. We are concerned that expediting the permitting process could
come at a significant cost to species persistence.
Our group believes that any policy that allows for expedited HCPs
should also require that such agreements not compromise the viability
of targeted species within the planning region, and should explicitly
consider and limit cumulative deleterious effects from incremental
habitat losses. If a recovery plan exists, expedited HCPs must be
consistent with the plan. Otherwise, to ensure coordination of existing
and future HCPs, a regional analysis of species status should be
required before any expedited HCPs or exemptions are considered.
independent scientific review
While Habitat Conservation Plans and other conservation agreements
that we have discussed above may offer promise for improved species
protection on private and other nonFederal lands, serious questions
remain about their effectiveness for long-term species conservation and
recovery. Because many recovery plans and HCPs lack scientific
validity, because the private lands proposals discussed above remain
largely untested, and because endangered species protection and
recovery must be based on the best available science, we believe that
independent scientific review must become an essential step in the
implementation of the Endangered Species Act. Such review should be
carried out by scientists with no economic or other vested interests in
the agreement. It is critical to start the review process early in the
project, including the design phase.
conclusion
Finally, while not strictly a ``science'' issue, we strongly agree
that implementation of the Endangered Species Act would be immensely
improved if funding were increased and agency staff were better
trained. We agree that better enforcement of the Act's prohibitions by
the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service would benefit listed species. We also agree that the Act's
goals are compromised by conflicting laws and regulations that
encourage actions that directly and indirectly contribute to species
endangerment. And we concur that a wide array of incentives and
inducements for better Act compliance by private parties could serve to
benefit species conservation greatly if implemented in a scientifically
responsible manner.
We hope that these observations and our sciences recommendations
above will help Congress to enact legislation that will make the
Endangered Species Act more acceptable to private landowners while
strengthening the protection of species and habitats on private lands.
______
July 23, 1996.
Hon. John Chafee,
U.S. Senate,
Washington, DC.
Hon. James Saxton,
U.S. House of Representatives,
Washington, DC.
Dear Senator Chafee and Congressman Saxton: We are writing as a
group of conservation scientists who all have professional experience
with biodiversity protection and who are concerned about the U.S.
Endangered Species Act and the future of environmental and human well-
being in the United States. We wish to comment on the proposed Saxton
bill, an amendment of the Endangered Species Act of 1973. We will limit
our comments to the role and use of science in the ESA.
First, we wish to commend you for the tremendous time and effort
you are expending on behalf of the ESA. We recognize and appreciate
your commitment to this, our most important environmental law, which is
so central to the conservation of biodiversity, and thus ultimately to
the welfare of all Americans. As you know, complete, functioning
ecosystems, with their great diversity of species and processes, are at
the very heart of a functional and prosperous society. Degradation of
nature has always led to societal decline and eventually its collapse.
That you recognize the importance of addressing these difficult issues
speaks well of you.
From a scientific perspective, the proposed amendments offer some
very positive features, but there are also some troubling issues that
we ask you to revisit. The most prominent of these is the ``No
Surprises'' section of the legislation. In a nutshell, this section
does not reflect ecological reality and rejects the best scientific
knowledge and judgment of our era. It proposes a world of certainty
that does not, has not, and will never exist.
Modern ecological paradigms, based on the best work of the day, all
recognize change, uncertainty, dynamics, and flux as the best
descriptors of ecological systems. Every ecosystem of which we are
aware changes over time: in species composition and abundance, in
structural complexity, in nutrient dynamics, in genetic composition, in
virtually any parameter we choose to measure. The time scales of these
changes vary among parameters, but you can always count on change. In
fact, some of us like to say that the only thing certain about
ecological systems is their uncertainty. Because we will always be
surprised by ecological systems, the proposed ``No Surprises''
amendment flies in the face of scientifically based ecological
knowledge, and in fact rejects that knowledge. The sources of this
uncertainty are many, cannot be eliminated, and are illustrated by the
following:
Environmental uncertainty--unpredictable, localized
environmental events such as fires, disease outbreaks, storms that
alter forest structure, and the like.
Natural catastrophes--Extreme and widespread events such
as hurricanes, volcanic eruptions, or very widespread fires.
Genetic uncertainties--losses or changes of genetic
structure in small populations that affect their future adaptability.
Demographic uncertainties--the influence of random events
on survival of very small populations.
Indirect effects--effects on species or parts of
ecosystems as a result of a change elsewhere in the system.
Nonindependent effects--synergisms between separate
effects that reinforce one another.
Cumulative space effects--non-independence of effects
occurring in separate places, but which together buildup to a large
effect.
Insufficient knowledge--nature is more complex than we can
even imagine, and we are always learning something new that revises our
perspectives.
In short, nature is non-linear, dynamic, disturbance-driven, and
affected by thresholds. We wish to make it clear that there is no
scientific basis for claims of ``No Surprises''; in fact, ``surprise''
is a good working view of natural systems. The ``No Surprises'' clause
clearly is a political, not a scientific perspective.
There is another aspect of this approach that troubles us. The
Nation is moving forward, and we feel in a very positive way, toward
ecosystem approaches of natural resource management. One of the
cornerstones of these new approaches is ``adaptive management,'' which
has at its heart the willingness to approach management as an
experiment, to continually examine and test management options, and to
change and improve over time. ``No Surprises'' seems to close the door
to adaptive management by saying that, once an agreement is made, new
and better scientific information will not alter it. This not only
ignores all present scientific knowledge of ecological systems, as
discussed above, but denies the ability to manage in an adaptive way
that welcomes and incorporates new information and allows and
encourages improvement.
We understand and sympathize with the motivations behind this
amendment. We encourage working with and incorporating the views of
private landowners, creating incentives for good land stewardship, and
assuring landowners that their responsible behavior will not be met
with new problems. But our collective scientific experience indicates
that there will be many surprises in conservation planning. The real
issues are: (1) the quality of Habitat Conservation Plans; and (2) at
whose expense the surprises will occur, and how the risk will be
allocated.
We suggest that some of the controversy over the ``No Surprises''
policy could be averted if: (1) the section were renamed ``assurances
to participants'' or some such thing; (2) the standards for an approved
HOP addressed ecosystem resilience rather than certainty; and (3)
funding were included to help deal with surprises. Essentially, the
bill would better reflect scientific understanding if its language
explicitly recognized the centrality of surprises (unforeseen problems
or new biological requirements) and the necessity to modify
conservation plans as we learn more from research and monitoring. High
quality HCPs would be worth public backing, so most importantly, the
bill should authorize a funding mechanism for plan revision, which in
some cases would need to include land acquisition. It is only fair that
the costs of plan revision be shared by the public at large rather than
borne solely by the private parties who in good faith have agreed to
the plan, and that these parties should be compensated for expenses
incurred as a consequence of modifications to plans. We stress that
plans must remain flexible, responsive to new information, and
adaptable because of the inherent uncertainty of nature; to do that,
funding is critical.
There are two other points on which we wish to comment, though in
much less depth because we know others will discuss them in greater
detail. First, it appears as though Sections 7 and 9 of the existing
law will be substantially weakened by the proposed amendments.
Proposals pertaining to HCPs and NSCPs create new mechanisms for
waiving the current portions of the ESA that prohibit injury to or
killing of endangered species. The National Research Council report on
the scientific basis for the ESA clearly noted that these section 7 and
9 provisions provide much of the power of the ESA. This is where the
Act can do some real good for biodiversity and provide effective
species protection. Weakening of these sections can be disastrous to
the intentions of the law.
Second, the amendment proposes that criteria for Relisting would be
those outlined in recovery plans. However, those plans are negotiated
documents, not necessarily based on scientific data; they are not, in
fact, scientific documents. Presently, Relisting criteria are the same
as listing criteria, which are based on the best scientific information
available. We urge you to retain that delisting methodology.
We hope that these comments, based on current state-of-the-art
scientific knowledge, will be of use to you as you continue to wrestle
with the difficult questions of species and ecosystem protection.
Please understand that the community of conservation scientists remains
ready and willing to offer their knowledge and expertise to craft a
scientifically sound and effective bill that will protect our natural
resources and the needs of our citizens to the benefit of all.
Sincerely,
Gary K. Meffe, Senior Ecologist and Professor,
Savannah River Ecology Lab and University
of Georgia, Drawer E, Aiken, SC 29802,
phone: (803) 725-2472; fax: (803) 725-3309
e-mail: [email protected]; Kyler Abernathy,
Department of Fisheries and Wildlife,
University of Minnesota; Ira R. Adelman,
Professor and Head, Department of Fisheries
and Wildlife, University of Minnesota; Fred
W. Allendorf, Professor, Department of
Biological Sciences, University of Montana;
Stuart K. Allison, Assistant Professor,
Ecology Central College, Pella, Iowa; David
R. Anderson, Professor, Department of
Fishery & Wildlife Biology, Colorado State
University; Jon D. Anderson, Fisheries
Biologist, Washington Department of Fish &
Wildlife; Jonathan L. Atwood, Director,
Avian Conservation Division, Manomet
Observatory for Cons. Sciences; Ronald J.
Baxter, Senior Ecologist, Baxter Consulting
Services; Paul Beier, Assistant Professor,
School of Forestry, Northern Arizona
University; Lee Benda, Geomorphologist,
10,000 Years Institute; Arthur C. Benke,
Professor, Biological Sciences, University
of Alabama; Bradley J. Bergstrom, Associate
Professor, Biology, Valdosta State
University; Tim M. Berra, Professor
Emeritus, Zoology, The Ohio State
University; Robert Beschta, Professor,
Forest Hydrology, Oregon State University;
Kevin R. Bestgen, Research Scientist,
Department of Fishery and Wildlife Biology,
Colorado State University; Daniel W.
Beyers, Department of Fishery and Wildlife
Biology, Colorado State University; Rob
Bierregaard, Biology Department, University
of North Carolina, Charlotte; James Boone,
Scientific Applications International
Corp.; Dee Borsma, Professor, Department of
Zoology, University of Washington; Richard
A. Bradley, Associate Professor, Department
of Zoology, Ohio State University, Marion;
David F. Brakke, Assistant Dean and
Professor, Biology, University of
Wisconsin--Eau Claire; Richard Brewer,
Emeritus Professor, Biological Sciences,
Western Michigan University; Peter F.
Brussard, Professor and Director,
Biological Resources Research Center,
University of Nevada; Paul R. Cabe,
Assistant Professor, Biology, St. Olaf
College; C. Ronald Carroll, Professor of
Ecology and Director, Conservation Ecology
and Sustainable Development Graduate
Training Program, University of Georgia;
Ted Case, Professor, Biology, University of
California, La Jolla; Joseph J. Cech, Jr.,
Professor and Chair, Department of
Wildlife, Fish, and Conservation Biology,
University of California, Davis; Ronald K.
Chesser, Professor, Ecology, University of
Georgia; Deborah L. Clark, Department of
Botany and Plant Pathology, Oregon State
University; Joseph A. Cook, Curator of
Mammals, University of Alaska Museum;
Kendall W. Corbin, Professor, Ecology,
Evolution, and Behavior, University of
Minnesota, St. Paul; Walter R. Courtenay,
Jr., Professor, Department of Biological
Sciences, Florida Atlantic University;
Richard Crawford, Professor and Assoc.
Chair, Department of Biology, University of
North Dakota; Colbert E. Cushing, Retired
Professor, Richland, Washington; Brent
Danielson, Associate Professor, Iowa State
University; James E, Deacon, Distinguished
Professor, Environmental Studies Program,
University of Nevada, Las Vegas; Lynda
Delph, Associate Professor, Department of
Biology, Indiana University; Pamela DiBona,
Environmental Sciences Program, University
of Massachusetts Boston; Robert C. Dowler,
Professor, Biology, Angelo State
University; Kathleen Doyle, Botany
Department, University of Wyoming; Sam
Droege, Monitoring Biologist, National
Biological Survey, Patuxent Wildlife
Research Center; Christopher P. Dunn,
Director of Research, The Morton Arboretum,
Lisle, Illinois; Mark Easter, Botanist,
Center for Ecological Management of
Military Lands, Colorado State University;
W. Daniel Edge, Wildlife Ecologist, Oregon
State University; David Ehrenfeld,
Professor of Biology, Rutgers University
and Founding Editor, Conservation Biology;
Erich Carr Everbach, Professor,
Environmental Studies, Swarthmore College;
J. Whitfield Gibbons, Professor, Ecology,
University of Georgia, Dr. Ross Goldingay,
Lecturer, Wildlife Biology, Southern Cross
University, Lismore, NSW, Australia;
Charles C. Grier, Professor and Head,
Department of Forest Sciences, Colorado
State University; James W. Grier,
Professor, Department of Zoology, North
Dakota State University; Nancy B. Grimm,
Associate Research Scientist, Zoology,
Arizona State University; David J. Hafner,
Chief Curator, New Mexico Museum of Natural
History and Past-President, New Mexico
Academy of Science; Eric M. Hallerman,
Associate Professor, Virginia Polytechnic
University and State University; Judith L.
Hannah, Department of Earth Resources,
Colorado State University; Dean A.
Hendrickson, Curator, Ichthyology, Texas
Natural History Collection, University of
Texas; Edward J. Heske, Wildlife Ecologist,
Illinois Natural History Survey; Kent E.
Holsinger, Associate Professor, Dept. of
Ecology & Evolutionary Biology, University
of Connecticut; Robert Hughes, Senior Staff
Scientist, Dynamic International,
Corvallis, OR; Tim Hunkapiller, Assistant
Professor, Department of Molecular
Biotechnology, University of Washington;
Dr. David W. Inouye, Professor, Department
of Zoology, University of Maryland; Jerome
A. Jackson, Professor, Biological Sciences,
Mississippi State University; Robert L.
Jeanne, Professor, Entomology and Zoology,
University of Wisconsin-Madison; Felicia
Keesing; Department of Integrative Biology,
Museum of Vertebrate Zoology, University of
California, Berkeley; Ellen D. Ketterson,
Professor of Biology, Indiana University
and Co-Director, Center for the Integrative
Study of Animal Behavior; Brett Johnson,
Assistant Professor, Department of Fishery
and Wildlife Biology, Colorado State
University; David Jones, Center for
Ecological Management of Military Lands,
Department of Forest Science, Colorado
State University; Peter A. Jordan,
Department of Fisheries and Wildlife,
University of Minnesota; James R. Karr,
Professor Fisheries and Zoology University
of Washington; Patrick A. Kelly, Adjunct
Assistant Professor, Department of Biology,
California State University, Fresno;
Douglas A. Kelt, Department of Wildlife,
Fish, and Conservation Biology, University
of California, Davis; Patricia L. Kennedy,
Associate Professor, Department of Fishery
and Wildlife Biology, Colorado State
University; Richard Knight, Professor,
Department of Fishery and Wildlife Biology,
Colorado State University; Walter D.
Koenig, Research Zoologist, University of
California, Berkeley; Winston C. Lancaster,
Research Fellow, Department of Zoology,
University of Aberdeen; Vickie L. Larson,
DYN-2 Dynamac Corp., Kennedy Space Center,
Florida; Richard D. Laven, Professor,
Department of Forest Sciences, Colorado
State University; Kai N. Lee, Center for
Environmental Studies, Williams College;
Marilyn Leftwich, Department of Psychology,
Fort Lewis College; Beaulin L. Liddell,
Research Specialist, Department of
Fisheries & Wildlife, University of
Minnesota; Curt Lively, Professor,
Department of Biology, Indiana University;
Carol Loeffler, Assistant Professor,
Department of Biology, Dickinson College;
Douglas F. Markle, Professor Fisheries,
Oregon State University; Terry C. Maxwell,
Professor, Department of Biology, Angelo
State University; Bernie May, Associate
Research Biologist, Director, Genomic
Variation Laboratory, Department of Animal
Science, University of California, Davis;
Richard L. Mayden, Department of Biological
Sciences, University of Alabama; Lee
McClenaghan, Professor, Department of
Biology, San Diego State University; Frank
H. McCormick, Research Ecologist, U.S.
Environmental Protection Agency, National
Exposure Research Laboratory; David L.
McNeely, Associate Professor, Biology,
University of Texas, Brownsville; Judy L.
Meyer, Research Professor, Institute of
Ecology, University of Georgia; Donald B.
Miles, Associate Professor, Department of
Biological Sciences, Ohio University; W.L.
Minckley, Professor, Zoology, Arizona State
University; David R. Montgomery, Department
of Geological Sciences, University of
Washington; Henry R. Mushinsky, Professor
of Biology and Chair, Conservation
Committee of the Herpetologist's League;
Jack Musick, Head, Vertebrate Ecology and
Systematics Programs, Virginia Institute of
Marine Science, College of William and
Mary; Robert J. Naiman, Professor,
Fisheries and Forestry, University of
Washington; Joseph S. Nelson, Professor,
Department of Zoology, University of
Alberta; Robert E. Nelson, Professor and
Chair, Department of Geology, Colby
College; Ray Newman, Associate Professor,
Fisheries, University of Minnesota; Donald
M. Norman, Toxicology Task Force, Seattle,
Washington; Reed Noss, Editor, Conservation
Biology, Society for Conservation Biology;
Alex Olvido, Biology Department, University
of South Carolina; Gordon Orians, Professor
Emeritus, Department of Zoology, University
of Washington; Richard S. Ostfeld,
Associate Scientist, Institute of Ecosystem
Studies, Millbrook, NY; Dianna K. Padilla,
Associate Professor, University of
Wisconsin--Madison; Lawrence M. Page,
Professor, Illinois Natural History Survey;
Dennis Paulson, Director, Slater Museum of
Natural History, University of Puget Sound;
Joseph H.K. Pechrnann, Savannah River
Ecology Laboratory, University of Georgia;
Mark Peifer, Assistant Professor,
Department of Biology, University of North
Carolina, Chapel Hill; David A. Perry,
Professor, Oregon State University; Kim
Phillips, Departments of Psychology and
Biology, Hiram College; Edwin P. Pister,
Aquatic Biologist and Executive Secretary,
Desert Fishes Council, Bishop, CA; Mary E.
Power, Professor, Department of Integrative
Biology, University of California at
Berkeley; Mary V. Price, Professor,
Department of Biology, University of
California, Riverside; Gary Ray,
Conservation Coordinator, Center for Plant
Conservation-Hawaii; Lee C. Redmond,
Immediate Past President, American
Fisheries Society; Philip Regal, Professor,
Ecology, Evolution, and Behavior,
University of Minnesota; Gerald R. Rising,
Retired Distinguished Teaching Professor,
State University of New York at Buffalo;
George Robinson, Biological Sciences, State
University of New York at Albany; Michael
P. Robinson, Department of Biology,
University of South Florida; William E.
Robinson, Associate Professor,
Environmental Sciences Program, University
of Massachusetts, Boston; Steve Rogstad,
Biological Sciences, University of
Cincinnati; James J. Roper, Professor,
Department of Biology, Utah State
University; Daniel K. Rosenberg, Research
Scientist, Institute for Bird Populations,
Point Reyes Station, California; John T.
Rotenberry, Natural Reserve System and
Dept. of Biology, University of California,
Riverside; Mike Runyan, Associate
Professor, Biology, Lander University;
Natalie Runyan, Conservation Information
System Specialist, Animas Foundation on the
Gray Ranch; Kristina A. Schierenbeck,
Assistant Professor, Biology, California
State University, Fresno; David S Schimel,
Senior Scientist and Head, Ecosystem
Dynamics & the Atmosphere Section, National
Center For Atmospheric Research; Isaac J.
Schlosser, Professor, Biology, University
of North Dakota; Rebecca R. Sharitz,
Professor, Ecology, University of Georgia;
Kathleen L. Shea, Chair, Biology
Department, St. Olaf College; Andrew T.
Smith, Professor, Zoology, Arizona State
University; Darrel E. Snyder, Research
Associate, Larval Fish Laboratory, Colorado
State University; Michael Soule, Chair,
Environmental Studies, University of
California, Santa Cruz; Richard E. Sparks,
Director, River Research Laboratories,
Illinois Natural History Survey; Jack A.
Stanford, Jessie M. Bierman Professor of
Ecology, University of Montana; Maureen
Stanton, Section of Evolution and Ecology
and Center for Population Biology,
University of California; Roy A. Stein,
Professor, Aquatic Ecology Lab, The Ohio
State University; Margaret M. Stewart,
Professor, Department of Biological
Sciences, State University of New York at
Albany and President, American Society of
Ichthyologists and Herpetologists; Craig A.
Stockwell, Research Ecologist, Savannah
River Ecology Laboratory; Philip K.
Stoddard, Assistant Professor, Department
of Biological Sciences, Florida
International University; Sharon Swartz,
Dept. of Ecology and Evolutionary Biology,
Brown University; Camm Swift, Visiting
Asst. Professor of Biology, Loyola
Marymount University and Associate Curator
Emeritus, Natural History Museum of Los
Angeles County; Stanley A. Temple, Beers-
Bascom Professor in Conservation,
Department of Wildlife Ecology, University
of Wisconsin; Harry M. Tiebout III,
Assistant Professor, Department of Biology,
West Chester University; Patrick C.
Trotter, Fishery Science Consultant,
Seattle, WA; Charles Umbanhowar Jr.,
Department of Biology, St. Olaf College;
Dirk Van Vuren, Associate Professor, Dept.
of Wildlife, Fish & Conservation Biology,
University of California, Davis; Kirk R.
Vincent, Department of Geosciences,
University of Arizona; Stephen Vives,
Associate Professor, Department of Biology,
Georgia Southern University; Robert C.
Vrijenhoek, Director, Center for
Theoretical and Applied Genetics, Rutgers
University; David B. Wake, Director, Museum
of Vertebrate Zoology, Gompertz Professor
of Integrative Biology Peter Warshall, PhD;
Melvin L. Warren, Jr., USDA Forest Service,
Southern Research Station Forest Hydrology
Lab; Peter Warshall, Warshall and
Associates; Nicholas M. Waser, Professor,
Department of Biology, University of
California, Riverside; G. Thomas Watters,
Ohio Biological Survey, The Ohio State
University; Judith S. Weis, Department of
Biological Sciences, Rutgers University;
Richard N. Williams, Senior Research
Geneticist, Clear Creek Genetics; Herb
Wilson, Associate Professor, Department of
Biology, Colby College; Jerry O. Wolff,
Research Associate Professor, Department of
Fisheries and Wildlife, Oregon State
University; David S. Woodruff, Professor,
Biology, University of California, San
Diego; Andrea Woodward, National Biological
Service; Ruth D. Yanai, Assistant
Professor, Forest Soils, SUNY College of
Environmental Science and Forestry,
Syracuse; Douglas Yanega, Illinois Natural
History Survey, James A. Zack, GIS Manager,
System for Conservation Planning, Natural
Resource Ecology Laboratory, Colorado State
University; Dr. Robert M. Zink,
Breckenridge Chair in Ornithology,
University of Minnesota.
______
Statement of Gregory A. Thomas, Natural Heritage Institute
Mr. Chairman and Members of the Subcommittee: I am Gregory A.
Thomas, president of the Natural Heritage Institute, a San Francisco-
based non-profit natural resource conservation organization comprised
of lawyers, scientists, planners and economists. Our mission is to
promote improvements in the institutions--governmental and non-
governmental--that manage and regulate the world's depletable stock of
natural resource, including biological diversity. Our work is both
domestic and international in scope.
I am please to appear before the Subcommittee today to present some
of the findings and conclusions of a technical workshop that we
convened in June 1998 on ``Optimizing Habitat Conservation for Non-
Federal Lands and Waters: Harvesting Performance Reviews to Chart A
Course for Improvement.'' This workshop synthesized the results of a
number of recent empirical studies of the performance of HCPs that have
been conducted by academic researchers, conservationists and practicing
conservation biologists. The purpose of the workshop was to distill the
lessons from the past 15 years of operating experience with HCPs. We
sought to discover how and why the HCP process has failed to recover
vulnerable and depleted species and what can be done to improve this
conservation tool.
The findings and recommendations of this review process that are
pertinent to the focus of this hearing are summarized in this
testimony. The complete output of the workshop, and a roster of the
participants and studies included in it, will be provided to the
Subcommittee. We also tender with this document a 56-page Compendium of
Empirical Reviews and Scholarly Analysis of the Experience with Habitat
Conservation Planning Under Section 10 of the Endangered Species Act,
dated June 18, 1998.
Habitat conservation planning is at once the most important and the
most controversial arena in the ongoing effort to protect biodiversity
on private lands in the United States. It is important to get it right
because there is no realistic alternative. I am therefore pleased to
summarize a few of the most salient recommendations from our work on
the application of conservation science to the development, approval
and implementation of HCPs.
recommendation no. 1.--scale habitat conservation planning to overcome
the limitations and deficiencies associated with landholding-specific
hcps
The optimal planning unit for habitat conservation is not the
individual land holding or water diversion, and the optimal focus is
not individual listed species. Rather, what is needed is landscape-
level planning whereby habitat conservation planning occurs at a
``bioregional'' scale. At this scale, ecosystems and their species are
more likely to be afforded effective conservation measures, and the
conservation responsibilities are more likely to be properly allocated
among land and water rights holders, both public and private.\1\
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\1\ Nothing in the ESA either requires or forbids landscape-level
planning by either the Services or the applicants. Nonetheless, the
tradition within the Services has been to implement the Act species by
species and site by site. Such tradition is open difficult to overcome.
---------------------------------------------------------------------------
There can be major advantages to the non-Federal rights holders as
well as to the achievement of the species conservation goals if
landscape-level planning is applied:\2\
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\2\ This is not to say that larger, more complex HCPs have
performed better than smaller and simpler plans. To the contrary,
resealing is advantageous only to the extent that it opens the
possibility of overcoming, not replicating, the limitations and
deficiencies that have plagued landholding specific HCPs.
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1. Landscape-scale planning can specify the overall conservation
effort that will be needed for communities of species and provide a
basis for determining what share of that burden an individual property
owner should bear in an HCP. There is no mechanism at present for
allocating that conservation burden as between private landowners or
between them and the public lands. Instead, the burden allocation is
made in a piecemeal fashion through the approval of HCPs, Sec. 7
consultations, and public land management plans and permit issuance. In
theory, those who get their approvals earliest get the best deal, with
larger burdens reserved for latecomers.
2. At the landscape level, it is more feasible to calibrate habitat
conservation planning to a recovery standard for endangered species and
to prevent threats to other vulnerable species. Landholding-specific
HCPs tend to aim for mitigation or, at best, avoidance of impacts on
listed species.
3. Landscape-level planning promotes economies of scale in data
collection and monitoring. Good science is expensive. The burden of
marshalling and interpreting the needed information is onerous for
individual rightsholders seeking development permits. Resealing could
shift an appreciable degree of this burden from individual property
owners applying for incidental take permits to the public agencies and
broader constellation of rights holders with responsibilities and
interests in the eco-region. At a landscape level of conservation, it
is also easier to evaluate and allocate a ``fair share'' of the burden
between public and private entities.
4. Adaptive management of conservation strategies and reserve
design is facilitated and made more flexible on a larger scale. That is
because adaptive management requires that some part of the development
plan covered by an HCP remain contingent. It is more feasible to do
this in larger scale habitat plans.
5. The quality and degree of public participation is generally more
satisfactory at the broader scale of planning. This is especially true
if a local government mediates the development of the HCP(s) because
these entities already routinely include the public in local
decisionmaking processes.\3\
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\3\ An exception is where a single-landowner prepares a large
landscape-level HCP as is true for many timber HCPs.
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Fitting the incidental take permitting program within a broader
conservation framework governed by specified standards and goals has a
parallel in the protection of watersheds under the Clean Water Act, or
the protection of airsheds under the Clean Air Act. To obtain a permit
to discharge regulated air pollutants into an airshed that is already
impaired, the permittee must make a net positive contribution toward
reducing overall emissions to help meet the ambient air quality
standards. To do this, the permitted must offset its emissions by
procuring reductions from other facilities. In the water quality arena,
permittees must show that their contribution of contaminants will not
violate basin-wide standards that are designed to assure conditions
necessary to support ``beneficial uses'' of the watercourse. Likewise,
the workshop suggested that individual HCPs should be calibrated to
contribute toward achieving a bioregional conservation strategy that
aims for long-term, sustainable conservation. This may sometimes entail
more than avoiding or minimizing impacts on the subject landholding. It
may also entail reducing the threat to the species on other lands
through offsite mitigation via a mitigation fund. Mitigation funds can
be used, for instance, to purchase the highest quality habitats to
prevent their development.
There are several potential vehicles for resealing habitat
conservation planning. One is to accelerate the development and improve
the performance of recovery plans under the ESA. There are several
problems with this vehicle, however:
Too often today, recovery plans do not exist and therefore
cannot serve as a guide to individual HCPs. Yet, it is not realistic
for the Services to decline to approve a proposed HCP until a recovery
plan for the covered species is in place. One alternative is to make
the approval of such HCPs conditional upon adoption of the recovery
plan. This can work without undue risk to the permitted under the
adaptive management strategy described later in this document so long
as the Services are diligent in their recovery planning efforts.
When recovery plans have been developed, they generally
have not resulted in more adequate HCPs.\4\ Historically, recovery
plans have been of poor quality. Most are not biologically defensible.
---------------------------------------------------------------------------
\4\ See generally Kareiva et al, Using Science in Habitat
Conservation Plans, National Center for Ecological Analysis and
Synthesis, Univ. of California, Santa Barbara, and American Institute
of Biological Sciences, Washington, DC. (1999).
---------------------------------------------------------------------------
Recovery plans have often inappropriately subordinated the
biological objective to economic considerations. Economics does count
in apportioning the conservation burdens among the public and private
landowners, but must not be allowed to dictate the biological
requisites of the recovery plan.
Recovery plans are not viewed as binding and enforceable
because that would be tantamount to the Federal Government engaging in
land use planning. That is more a political than a legal objection,
however. In fact, the Federal Government needs to have a basis for
deciding whether an HCP provides sufficient conservation benefit to be
approvable. Recovery plans can provide that guidance.
``Recovery'' is a species-based concept and recovery plans
do not necessarily accomplish much for ecosystems, their processes, or
functions. However, there is no obvious reason why bioregional HCPs
cannot adopt a ``recovery'' conservation goal for those species in the
assemblage that are listed under the Act. Likewise, there is no reason
why recovery plans cannot address multiple species and be habitat-
based. Such an approach would further the goals of the Act, i.e., to
preserve the ecosystems upon which threatened and endangered species
depend.
A second promising vehicle is preparation of HCPs and
administration of take allowances through sub-permits by units of State
and local government that already have the predominant role in land use
planning. One example is the California Natural Communities
Conservation Program (NCCP) approach.
A third vehicle is the promulgation of programmatic standards or
guidelines for multi-species conservation by Federal land and water
managers and regulators. For example, the recent adoption of NMFS'
programmatic guidelines for logging on anadromous fish-bearing streams
in the Pacific Northwest may prove to be a useful model. Such
programmatic guidelines can apply standards for riparian buffers and
acceptable levels of sedimentation to entire watersheds or other
ecologically significant planning units. Similarly, the Aquatic
Conservation Strategy component of the President's Forest Plan provides
a multi-layered planning approach intended to result in ecosystem-wide
forest management.
recommendation no. 2.--calibrate habitat conservation planning to
biologically defensible goals
Species recovery is the ultimate goal of the ESA and contribution
to this goal is the yardstick by which the habitat conservation
planning process should be measured. HCPs will be viewed as
contributing to the problem rather than the solution unless they are
designed to advance a restoration strategy, that is, unless they confer
a return survival benefit to the species. Otherwise, the Services are
running a hospital in which the patients will never be taken off life-
support.\5\
---------------------------------------------------------------------------
\5\ On heavily impaired lands, even a net benefit standard may not
be enough to recover the species or prevent local extirpation. In these
circumstances, the Federal Government's role in bioregional planning
may need to include purchasing and restoring such lands. HCPs should
not be counted on to solve all endangered species/private lands
conflicts.
---------------------------------------------------------------------------
The difference between ``survival'' and ``recovery'' can be
understood as different levels of risk for the species. At present, the
level of acceptable risk is left to the judgment of the applicants and
the Services and is never made explicit. Often, there generally are not
sufficient data to quantify these risks. Qualitative analysis of risk
factors is possible, however. This type of risk analysis is familiar
terrain in setting air and water quality criteria, for example. Thus,
it would be feasible to assess the risk to species by identifying and
addressing the factors that have the largest effect on survivability.
Independent scientific peer review would be very beneficial in doing
this.
Such higher conservation objectives may require greater landowner
incentives. Indeed, it makes sense to correlate the extent of
regulatory assurances to the extent of biological benefit conferred in
an HCP. One way to do this is to link the duration of regulatory
assurances to the degree of conservation effort embodied in the plan
Plans that contribute to recovery would get longer term assurances than
those that only avoid jeopardy. Similarly, plans based on highly
adequate data and analysis would be entitled to longer term guarantees.
In advancing the ultimate biological goal, the share of
conservation ``costs'' allocated to non-Federal landowners can be
minimized by holding Federal agencies to a higher standard or
performance. Stated another way, a consequence of managing public lands
to a less exacting biodiversity conservation standard is a higher
degree of burden assumed by the private rightsholders, or a compromise
of the biological goals of the ESA. Unfortunately, prevention of
jeopardy is the aiming point for most management decisions on Federal
land. This low standard of management for the public lands should be of
as much concern to the property rights community as it is to the
conservation community. However, allocating conservation ``costs''
between Federal and non-Federal lands is not an option in many regions
of the country since there is little or no Federal land, or existing
Federal land is unsuitable to support the species in question.
Biological science should drive the development of both bioregional
and individual landowner plans. Economics is relevant to the allocation
of responsibilities among landowners--public and--private in achieving
the conservation goals of the plan, but should not be allowed to
intrude into the choice of conservation strategies. The performance
reviews revealed, however, that the statutory command to ``minimize and
mitigate project impacts to the maximum extent practicable'' has become
an economic feasibility standard in practice. HCP negotiations often
been driven by the applicant's assertions as to the effects of
mitigation alternatives on profit margins, rather than by the
biological imperatives.
recommendation no. 3.--adaptive management and biological monitoring
should be routinely required in hcps
Every HCP should be regarded as a ``learning laboratory'' wherein
the conservation arrangements are treated as working hypotheses. In
that regard, the elements of adaptive management and the potential
responses to changes should be built into the plan from the beginning.
Another term for ``adaptive management'' is ``contingency planning''.
In either, the core requirements are a program for evaluating the
performance of the HCP and the specification of contingency
arrangements (alternative conservation measures) that would be
triggered automatically in the event the performance fails to meet the
goals. This might entail the HCP permittee implementing the plan in
phases so that permission to begin a later phase is contingent upon the
Services verifying that the permitted has met the performance standards
in the prior phase. This is more easily accomplished in large
ecosystem-based plans that are implemented over time.
Workshop participants identified five elements or steps to develop
an HCP with adaptive management and monitoring:
1. Identify explicit, measurable, biological goals;
2. Identify explicit human-induced and other stresses on the
system;
3. Identify imaginative strategies to achieve the biological goals;
4. Monitor biological indices by developing a statistically valid
sampling scheme or an analytic structure for interpreting data; and
5. Develop mechanisms to translate data into needed plan
adjustments by the land managers and the oversight agencies.
These elements call for the rigorous application of the following
scientific methods:
System Assessment: systematic collection and statistical
analysis of data on ``healths of the important ecosystem components and
on the factors that may influence health at several levels: population,
species, community, habitat, and ecological processes.
Experimental science: rigorous, controlled, empirical
tests to confirm causal relationships, management hypotheses, and the
incidental impacts of management.
Risk analysis: statistical analysis of empirical results
to identify levels of uncertainty and therefore ensure against ``net
harms. Risk assessment need not be quantifiable. We can start by
identifying which activities will result in the largest impacts, then
develop a conceptual monitoring approach. For example, employing such
risk factors as habitat loss, birth rate, and migration barriers allows
planners to get a better sense of whether risk levels are acceptable.
Provision for uncertainty: discussed below.
All of the above methods require monitoring. Notably, the NCEAS
study found that less than 50 percent of HCPs had clear monitoring
plans in place, where ``monitoring'' meant more than just ``counting''
animals. Yet, monitoring will not necessarily reveal the changes that
need to be made in time to make them. This argues for a margin of
safety in the selection of the HCP conservation strategy. Rigorous
monitoring is worth doing even for HCPs that do not have an adaptive
management feature because the rate of amendments to HCPs (at the
landowner's request) tends to be high. Such amendments provide the
opportunity for adjustments in conservation strategies.
Monitoring must also be time-scale sensitive. For example, short-
lived species, e.g., listed mice species, must be monitored much more
frequently than long-lived species, e.g., desert tortoises (with
respect to generation time), and annual plants more frequently than
redwood tress. In short, effective monitoring is keyed to the specific
species.
Strategies for dealing with critical uncertainties are essential
for adaptive management, and to make the HCP process work in general.
An effective and acceptable strategy would detect possible fatal data
deficiencies and deal with them in a manner that does not place the
target species at risk due to irreversible development of habitat but
also does not make development impossible. The first step is to make
the adequacy of the data explicit. To assess the sufficiency of data
for habitat conservation plans, an inventory of available data and
acknowledgement of gaps should be a routine requirement.
When critical data are unavailable or inadequate for prudent
planning, and it is not realistic to saddle the ITP applicant with the
burden of undertaking original research and developing data, certain
precautionary processes should accompany that ITP:
The greater the impact of a plan, the fewer gaps in
critical data should be tolerated. For example, the standard of data
adequacy would be higher for irreversible activities such as are
typical in urban development as opposed to activities whose impacts can
be temporary, as is sometimes the case for water diversions.
A scarcity of data on impacts of take should be handled by
assuming a worst case-scenario in determining whether approval criteria
have been satisfied.
For large HCPs covering vast expanses of land, take needs
to be quantitatively assessed.
Where there is a scarcity of information to validate the
effectiveness of mitigation, mitigation measures should be implemented
and assessed before take occurs. This could become an explicit approval
criteria for HCPs.
Monitoring needs to be very well designed in those cases
where mitigation is unproven.
Adaptive management needs to be a part of every HCP judged
to be predicated on substantial data shortages, not just to deal with
``unforeseen circumstances''. When faced with data shortages, there
needs to be explicit measures for using the information from monitoring
to alter management procedures. This means that a precise trigger for
``mitigation failures'' needs to be spelled out, as well as procedures
for adjusting management when that signal of ``failure'' has been
received. The key point here is that the mere existence of monitoring
is not a solution to data shortage--there also has to be a quantitative
decision-process that links monitoring data to adjustments in
management.
In sum, where critical information is scarce or uncertain, the
resulting plans should:
be shorter in duration
cover a smaller area
avoid irreversible impacts
require that mitigation measures be accomplished before
take is allowed
include contingencies
have adequate monitoring
recommendation no. 4.--regulatory assurances should be compatible with
adaptive management and commensurate with an hcps conservation
performance
In HCP negotiations, the landowners typically want regulatory
assurances that tend to shift the risks associated with complex
biophysical systems to the species, which can ill afford them. The
permit applicant wants to be absolved of further responsibility for the
conservation of the species in exchange for the development concessions
he/she makes in the HCP, irrespective of the future population trends
for the covered species. That is what is effectively conferred by the
``No Surprises'' guarantee.
But biological systems are inherently fraught with uncertainty.
They are not only more complex than we know; they are inherently more
complex than we can know, in the words of one eminent workshop
participant. Adaptive management responds to this reality. Under
adaptive management, HCPs are acknowledged to be mare working
hypotheses, predicated upon assumptions about how species and their
ecological processes and functions respond to changes in habitat size,
location, configuration, quality, etc. Under adaptive management, these
assumptions, uncertainties, and knowledge gaps are made explicit, and
the conservation strategy includes a directed and funded program of
hypothesis testing against specified and measurable performance goals,
monitoring and, most important of all, adaptations of the initial
conservation strategy in response to the results.
Adaptive management will also require a fundamental change in the
way the regulatory assurances are structured, so that HCPs remain
flexible and contingent, rather than immutable, as they are now. One
solution lies in converting the assurance package from regulatory
immunity to regulatory indemnity. That means that if adaptive
management indicates that the species' prospects would be better served
by additional restrictions on the use of land or other those could be
accomplished without the consent of the landowner, but also without
economic penalty to the landowner. The biological risks would, in
effect, be absorbed by a compensation fund.
An analog to this is an insurance arrangement under which the issue
of who shoulders the risks associated with HCPs converts to the issue
of who funds the indemnity pool, and how the decisions on compensation
will be made. The regulatory compensation could be funded from Premiums
contributed by the beneficiaries, which include the HCP applicants as
well as the taxpayer. There is also the potential to fund a portion of
the compensation pool through reductions in the cost of debt service
for covered development projects. An indemnity arrangement does reduce
the risks to development under the ESA. Some share, perhaps most, would
also need to be absorbed by the public. This is beginning to happen in
the aquatic arena.\6\
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\6\ Solving the issue of how to determine compensable loss in a
nanny that satisfies the private rightsholders is trickier in the
terrestrial HCP context than in the aquatic HCP context (where lost
water supply reliability is both relatively easy to measure and to
compensate). Higher conservation objectives may require higher
incentives.
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Regulatory assurances should not be automatic. Rather, the Services
can and should calibrate the regulatory assurance conferred (e.g., the
scope or the duration) to the assurance of conservation performance
provided by the HCP. Plans that contribute to recovery would get longer
guarantees than those that simply maintain the current population level
or allow some decrease. Similarly, plans where the underlying data and
analysis are judged highly adequate, via objective, definable
standards, would be entitled to longer term guarantees.
A recommended approach is to negotiate as a term of the HCP the
circumstances that would trigger a requirement for changes in the HCP,
the type of changes that could be required, the responsibility for
implementing those changes and the contingencies that must be left open
in the development plan to allow these changes to be made.
Stronger, more complete, or longer term assurances might be
reserved for HCPs that have the following features:
1. plan-specified performance goals;
2. an effective monitoring program;
3. an adaptive management element which identifies the significant
risks of the HCP not achieving the performance goals, a contingency
plan that is triggered in that event, and a commitment of funds to
carry out this element;
4. a commitment by the parties to effective enforcement of the HCP
terms; and
5. third party enforcement provisions, should the commitment to
abide by the terms of the HCP as described above fail.
recommendation no. 5.--independent science should be used to
strengthen hcps
Whether the conservation strategy adopted in an HCP is adequate to
meet the biological goals requires the exercise of professional
judgment and discretion. It is essential that these be specified
explicitly and correctly. Even apart from the influence of economics
and politics on these judgments, there may be a spectrum of responsible
opinions among scientists and agency officials as to whether thresholds
of data adequacy or standards for plan approval have been met. There
are few bright lines and courts are ill equipped to arbitrate such
technical disputes. We need an HCP process that reliably attains the
biodiversity conservation objectives of the ESA (survival and recovery)
in spite of potential differences in responsible scientific judgment.
Independent scientific review may help fulfill that role.
Scientific review is also important because decisions on
conservation strategy made apart from the view of the scientific
community and the public will not have the credibility that HCPs need.
The Service negotiators also need the reinforcement that independent
science can provide. Outside scientific scrutiny imposes a standard of
scientific excellence that is difficult to counteract. The Services
have the responsibility of ensuring that applicants use adequate
scientific information to develop HCPs Conservation and permitting
decisions made without a clear, factual basis and a demonstrable link
to information will not result in credible and legally sustainable
HCPs. Independent scientific involvement can reinforce the Services'
decisions if conducted and managed properly. One way to approach this
would be to enlist independent scientists in the development of general
scientific principles or guidance for species or habitats on which HCPs
can then be based, such as the regional conservation guidelines for
coastal sage scrub in Southern California.\7\
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\7\ A qualified independent reviewer is one who: (1) has little
personal stake in the nature of the outcome of decisions or policies,
in Arms of financial gain or loss, career advances, or personal or
professional relationships; (2) can perform the review tasks flee of
intimidation or forceful persuasion by others associated with the
decision process; (3) has demonstrated competence in the subject as
evidenced by formal tang or experience; (4) is willing to use her or
his scientific expertise to reach objective conclusions that may be
discordant with her or his value systems or personal biases; and (5) is
willing and able to help identify internal and external costs and
benefits--both social and ecological--of alternative decisions.
Typically such a parson is associated with a recognized scientific
society or is otherwise an established professional in a particular
field.
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The timing of scientific input is critical for shaping HCPs. It is
important to get scientists involved as ``scientists,'' providing data
and analyses, not just as reviewers, reacting to someone else's data
and analyses. The input must come at the formative stage when ``first
principles'' of the application of conservation science are being
established for the reserve design or other conservation strategy.
These decisions are made as the HCP is negotiated, not at the stage
where the Service issues the incidental take permit. At present, HCP
applicants control access to the negotiations. The Services accord them
this discretion because they view HCPs as applications for a regulatory
permit, and therefore as the applicant's workproducts. But HCPs are
really negotiated settlements of regulatory liabilities, not just
applications for permits. The governmental action takes place in these
negotiations. Permit issuance is a mere formality.
One way to interject independent science into HCPs is to bring
independent qualified experts into the negotiations directly under the
sponsorship of the local communities or interested conservation
organizations. However, these potential participants often do not have
access to such expertise or the means to procure it. An ``HCP Resource
Center'' comprised of a nationwide network of conservation scientists,
resource economists and legal experts with negotiation skills could
meet this need. It could allow tailored expertise to be deployed to
engage directly and effectively with the agency and applicant's team of
negotiators.
conclusion
The performance of habitat conservation planning on lands and
waters subject to private property rights could clearly be upgraded
through the better application of sound principles of conservation
science. Much of this upgrade could be accomplished by the Services
themselves, within their existing statutory authority--and with an
increase in the needed financial resources. The proposed amendments to
the Services' HCP Handbook are, in the main, steps in the right
direction. We have provided the Services detailed comments on their
proposed amendments, derived from the findings and conclusions of the
HCP technical workshop.
Unquestionably, the statutory framework itself could also be
improved, to create incentives, disincentives and approval criteria
more conducive to effective habitat conservation planning. We also
believe that this could be done in a manna that does not increase the
burdens imposed on the private rights holders. Indeed, we believe,
based on the technical analysis synthesized by the workshop, that
statutory reforms could be coupled with more realistic Federal funding
in manna that would alleviate some of those burdens and make the
habitat planning process more palatable, predictable, effective and
scientifically defensible.
The short time available for preparation of this testimony did not
permit us to generate thoughtful recommendations for statutory reform.
If the Subcommittee should determine to explore that course, however,
the Natural Heritage Institute would be pleased to work with your staff
to suggest reforms well-grounded in the performance reviews which we
call to your attention in this testimony.
Thank you for the privilege of addressing the Subcommittee today.
______
Responses by Gregory A. Thomas to Additional Questions from
Senator Chafee
Question 1. How should the ESA be changed to provide for greater
public involvement in the HCP process?
Response. As you will recall, NHI's testimony was based on the
findings and conclusions that emanated from a technical workshop of
experts on ``Optimizing Habitat Conservation Planning for Non-Federal
Lands and Waters: Harvesting Performance Reviews to Chart a Course for
Improvement''. Incidentally, four of the institutions represented by
witnesses at your hearings participated in that workshop. Among many
other topics, that workshop synthesized recent critiques of the
opportunities for public involvement afforded by the HCP process
historically. The findings and conclusions in that regard are as
follows:
Recommendation No. 5.--The Services should make every effort to
encourage direct public participation beyond the minimum legally
required.
Public participation in the development of an HCP can
enhance the quality of information on which HCP decisions are based,
improve understanding and relationships among HCP stakeholders,
heighten public and political support for an HCP, and enhance the long-
term viability of an HCP. The public has a significant stake in the HCP
process because wildlife is a public resource, both legally and
politically. And, whatever conservation responsibilities or risks are
not borne by and ITP applicant will be shifted to other landowners or
the public lands, usually at public expense.
A recent study by the University of Michigan revealed that
the degree of public acceptance of an HCP is strongly related to the
degree of public participation in the development of that plan. The
more that interested parties are accorded a role in developing
conservation plans, rather than merely commenting on completed plans--
the more satisfied they tend to be with an HCP.
The timing and short duration of the comment periods for
HCP documents under NEPA and the ESA limit meaningful public
involvement. Currently, HCP scoping occurs early in plan development
while the project is poorly defined. The next commenting opportunity
usually comes at the end, when most decisions are already locked in. At
that point, there are no incentives to renegotiate these provisions to
incorporate changes requested by the public even if the public provides
significant new information. And, then, the comment periods tend to be
too short for interested citizens to master the details of a given plan
and compose and submit comments. The workshop determined that if the
Services invited the public to comment on important issues as they
arose or at ``trigger points'' throughout the planning process, the
public would not be confined to participating only in the very early
stages of embryonic plans, or after the key HCP provisions have already
been negotiated.
Another way to expand public involvement . . . is . . . to
rescale habitat conservation planning [so that individual HCPs fit
within a multi-species, ecosystem level conservation strategy] and
involve local land use agencies. Public access and effective
participation in the development of the conservation ``deal'' would be
greatly enhanced where the HCP applicant is or includes units of local
or State government. Local or State governmental agencies are likely to
involve the public in much the same way the public participates in
local land use decisions. This can occur because State laws often
provide for open hearings and easy access to public documents. This
allows citizens to directly address and interact with public officials
in HCP development and implementation. This element supplements and
often exceeds the minimal Federal requirements for notice and comment
under NEPA.
Fundamentally, the problem with public access to the
process is that the Services have delegated the ``gatekeeper'' role to
the permit applicant. The applicant exercises sole discretion as to who
will and who will not be given a seat at the negotiating table. This
reflects the Services' mistaken notion that an HCP is just a permit
application over which the applicant should exercise final substantive
control. But an HCP is much more than an application. It is for all
intents and purposes a negotiated settlement of the terms and
conditions under which a discretionary permit will be issued to engage
in otherwise forbidden acts, namely the taking of protected species. An
HCP is not just the applicant's work product. It is a compromise
jointly produced by all parties to the HCP negotiations. Once its terms
are approved by the Services, the ``incidental take permit'' or
;implementation agreement'' is largely a formality.
Functionally, the approved HCP is the permit to take
protected species. As such, the process through which it is formulated,
issued and approved should be as open to interested members of the
public as is the issuance of land use permits in other contexts. For
example, when the Department of Interior grants grazing permits under
the Federal Land Policy and Management Act, it allows for public
participation so that all parties affected by the process will be fully
represented.\1\ NPDES permits and local building permits are similarly
public processes. Those permit applicants are not allowed to control
who can and who cannot participate in the permitting process. Likewise,
the Services, not the applicants should determine who gets a seat at
the HCP negotiation table.
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\1\ Other Federal statutes allow stakeholders to help shape natural
resource use and protection. The EPA convenes interested stakeholders
in setting Federal water quality standards, and NMFS itself employs
stakeholder groups under the Marine Mammal Protection Act in its
efforts to reduce the harm commercial fishing has on imperiled fish
species. Nothing in the ESA precludes the Services from employing
similar measures to involve the public in the HCP context.
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The issue of who sits at the table is crucial to the
quality and acceptability of HCPs and the process itself. Upgrading the
independent scientific bases for HCPs cannot be done solely after the
fact, in the form of peer review. By then, the fundamental decisions
regarding the design of the conservation strategy, the monitoring
program, and the adaptive management arrangement will already have been
settled in the negotiation process. If the science underlying HCPs
needs to be improved--and most commentators believe that to be the
case--this must be done by bringing these experts directly into the
negotiations at the earliest stages. The current arrangement assumes
that the agencies and applicants alone can be relied upon to marshal
the needed expertise. But, in fact, the Services' internal expertise is
spread very thin where literally hundreds of HCPs are in development
simultaneously, and the applicant's experts may appear to be influenced
by the understandable desire to minimize the costs of conservation
measures.
This is not to say that in acting as gatekeepers the
Services must admit to the table everyone who knocks on the door.
Demonstrated ability to contribute substantively to the issues on the
table without undue delay may be made the price of admission. We simply
urge that the Services themselves assume the role of making these
decisions and not leave them to the permit applicant. Native fish and
wildlife are public resources under both State and Federal
jurisprudence, wherever they may be found. It is fundamentally wrong to
treat permits to take endangered species on private lands as though the
public does not have an interest in the substantive validity of the
negotiated terms and conditions.
Incidentally, NHI called these deficiencies in the public
involvement process to the attention of the Services in our comments on
the proposed revisions to the HCP Handbook. In our view, the most
significant problem with these proposed revisions is the failure of the
Services to reserve to themselves the ``gatekeeper'' function, for the
reasons set forth above. In the event that the Services do not make
this change in the final version of the Handbook revisions, we strongly
encourage this Committee to mandate that change when it reauthorizes
the ESA.
Question 2. You have argued for the use of outside ``review'' teams
consisting of wildlife biologists, lawyers, and other stakeholders to
evaluate HCPs. The proposal would be to require landowners to include
these teams at the outset in developing an ECP. Can you please describe
what the role of these review teams would be? What additional expertise
or resources do they contribute to the development of an HCP? How would
their activities be funded?
Response. Specifically, NHI proposes to organize a nationwide
network of specialized experts in the fields of conservation science,
resource economics and wildlife law, drawn largely from the academic
sphere. We envision drawing on this network to assemble specialized
teams that could seek to participate in the negotiation of high-
consequence HCPs on behalf of local communities and the general public.
We envision that these independent experts would apply to the Services
to be permitted to participate in the development of these HCPs, just
as ``public interest intervenors'' now routinely seek to participate in
many other environmental permitting processes. The Services would
exercise their discretion to determine whether and how to involve the
independent experts. Presumably, the Services would consider the value
of the proffered expertise as well as the effects on administrative
efficiency. In most cases, we believe, the Services would find that
participation by these experts--particularly at the formative stages of
HCPs--would significantly improve both their quality and their public
acceptability. In those cases, the Services could urge or even require
the permit applicant to provide technical information to the
independent team for their review and comment, and to consider their
suggestions and proposals in formulating the HCP. In cases where the
Services are persuaded that the recommendations of the expert team
should prevail, they could so condition their approval of the HCP.
The independent experts would expect to be admitted to the
negotiations only upon a showing that they can provide a type or
quality of expertise not otherwise provided by either the applicant's
consultants or the Services' internal staff. In the view of the several
empirical reviews of HCPs synthesized at the NHI workshop, the type and
quality of expertise brought to bear on HCPs can often be improved
through the use of such ``independent science''.
We are currently exploring the options for funding. Ideally, the
funding would come from a combination of sources, including:
(1) The local communities or conservation interests represented by
the independent scientists might provide at least ``earnest money''
support;
(2) The scientists (and other experts) might be asked to discount
their fees as a public interest gesture (NHI has had considerable
success in negotiating such arrangements in the past); and,
(3) Support would be sought from private foundations with an
interest in biodiversity on private lands.
Ideally, the Congress will also see substantial value in this
initiative for improving the HCP process (without additional cost to
the private rights holders) and provide some public funding, perhaps
through the National Fish and Wildlife Foundation.
Question 3. Should improvements to the science of HCPs be
mandatory? In other words, should all HCP applicants be required to
undertake measures to improve the scientific basis of their individual
HCPs?
Response. As the testimony (and the several performance reviews
synthesized in the NHI workshop) reveal, the extent to which HCPs are
scientifically defensible varies widely. To be sure, it may be possible
to mandate a better level of ``quality control'' by improving the
statutory criteria for approval of HCPs (many suggestions in this
regard can be distilled from the attached workshop findings and
conclusions), or the statutory process for making those approvals (such
as requiring explicit findings of fact with respect to the approval
criteria).
However, the science of HCPs could also be substantially upgraded
through improvements in the process and incentives. If the Services
themselves where given the resources to develop high-quality,
ecosystem-scale, multi-species conservation strategies at the landscape
scale, the scientific burdens associated with developing HCPs at the
scale of the individual landholding would be greatly ameliorated, with
a significant quality improvement. Options for doing this are discussed
in the attached Findings and Conclusions. The intervention of
independent conservation science at the formative stages of HCPs is
another promising device, as discussed above. Upgrading and extending
the use of ``adaptive management'' techniques in HCPs would also vastly
improve their scientific credibility.
______
Responses by Gregory A. Thomas to Additional Questions from
Senator Crapo
Question 1. Your paper calls for the development of an HCP team,
including wildlife lawyers, which will be deployed at the request of
conservationists to ply open the negotiating process between the
Services and landowners. Don't you believe that such actions will act
as a disincentive to landowners to participate in HCP development?
Response. How landowners would view the possibility of direct
participation by independent scientists in the crafting of their HCP is
certainly a legitimate issue. Since HCPs are the primary vehicle by
which private rights holders make commitments to conserve biodiversity,
we do not want to make them better at the expense of making them rarer.
Properly done, opening up today's bilateral negotiations to broader
scientific scrutiny can provide tangible benefits to all stakeholders.
Failed HCPs leading to species extinctions is everyone's nightmare. Our
discussions with landowners indicates that they do favor improving the
prospects of success in habitat conservation planning, if that can be
done without significantly increasing their costs or timelines. The
Services freely admit that their internal scientific capacities are
stretched very thin by the volume and complexity of HCPs, and by the
narrowly specialized expertise that they require. Conservation
interests and local communities are crying out for better access to a
process that affects their interests greatly. The scientific community
has expressed grave concerns about the defensibility of the current
generation of HCPs. Surely we can find a way to do better by all these
stakeholders.
To clarify, the better way proposed by NHI is to convene
interdisciplinary teams of experts to directly engage in the crafting
of HCPs. To be sure, wildlife law experts may be useful in this
endeavor--perhaps to act as the actual negotiators. But, the
conservation scientists are the core capability that needs to be
organized and ``deployed''. We believe this can be done without
additional expense to the landowners. We do not propose that the
landowners would be required to pay for this dose of independent
science. We also do not accept the premise that better science will
lead to more expensive conservation measures. The most expensive type
of conservation measures are those that fail in their intended purpose,
although the additional costs may be visited on the next landowner who
seeks a take permit covering the subject species. In the end, the team
of independent scientists that might participate in the negotiations
has no power to dictate terms and conditions. They can only critique
and recommend. In the end, the power to approve will continue to lie
where it does today, with the Services who can issue or withhold
incidental take permits.
We also do not propose that the intervention of independent
scientists in the HCP process would be automatic. Rather, we propose
that their participation lie within the discretion of the Services, who
can best determine whether they will make a positive contribution in a
particular circumstance.
Question 2. Does NHI engage in litigation on environmental issues?
Would NHI lawyers ``pry open'' the doors to the negotiating process and
then file an action if they didn't get everything they wanted out of
negotiations? How would that affect the willingness of applicants and
agencies to cooperate on HCPs?
Response. NHI is an organization of lawyers, scientists and
economists. We do have litigation capability, which we use judiciously,
preferring to find solution opportunities beyond the pale of existing
law where we can. The prospect of legal challenges to HCPs exists
whether or not independent scientists are involved in their crafting,
and it exists quite apart from NHI. The important point here is that
litigation by anyone is much less likely if there is higher confidence
in the eff1cacy of the HCP that emerges from the negotiations. One of
the chief benefits of outside scrutiny is the higher level of public
satisfaction with the HCP process. Thus, if the interest of the Senator
in posing this question is to insulate the HCP process from litigation
challenges, the best strategic move he could make would be to open the
process to public involvement through highly qualified experts not
otherwise available to the applicant or the Services. Indeed, this
insulation should be highly attractive to the permit applicants who are
willing to go to the time and expense of developing an HCP.
We believe that it is time to put unproductive rhetoric aside and
get on with the business of crafting a high-confidence process for the
development of private property without driving species to extinction.
Better science is part of the solution for landowners and species
alike. We are trying to help marshal it. We hope we can be useful to
the leadership of the U.S. Senate in doing likewise.
Thank you for the opportunity to present our views, and those of
the workshop participants, both at the hearing and in these responses.
A copy of the workshop ``Findings and Conclusions'' is attached to
amplify on these points. I reiterate our desire to serve as a resource
to the Committee as it considers how to improve the statutory framework
for habitat conservation planning on non-Federal lands and waters.
______
A SUMMARY OF KEY FINDINGS AND RECOMMENDATIONS OF THE PARTICIPANTS OF
THE WORKSHOP
Optimizing Habitat Conservation Planning for Non-Federal Lands and
Waters: Harvesting Performance Reviews to Chart--A Course for
Improvement
i. introduction
Habitat conservation planning is at once the most important and the
most controversial arena in the ongoing effort to protect biodiversity
on private lands in the United States. In June 1998, as part of its
project: ``Improving Endangered Species Habitat on Private Lands,'' the
Natural Heritage Institute (NHI) convened HCP experts from the fields
of conservation biology, land-use planning, natural resource economics,
and law for a 2-day workshop. The purpose of the workshop was to
synthesize the results of a number of empirical studies of the
performance of HCPs in which these experts had been involved, with a
view toward distilling the endemic deficiencies and identifying
achievable solutions. This document reports the principal findings and
recommendations from the workshop as an agenda for action to improve
this vehicle for accomplishing commitments to habitat conservation on
lands and in water subject to private property rights.
ii. key recommendations from the workshop
Recommendation No. 1.--Scale habitat conservation planning to overcome
the limitations and deficiencies associated with landholding-
specific HCPs
A principal and recurring issue was the appropriate planning unit
for habitat conservation. Repeatedly, the discussion confirmed that the
optimal unit is not the individual land holding or water diversion, and
the optimal focus is not individual listed species. Rather, there are
benefits for both biological resources and property rights holders in a
landscape level of planning wherein habitat conservation strategies are
developed at a ``bioregional'' scale, which covers entire ecosystems,
and their community of species. At this scale, ecosystems and their
species are more likely to be afforded effective conservation measures,
and the conservation responsibilities are more likely to be properly
allocated among land and water rights holders, both public and private.
Nothing in the ESA either requires or forbids landscape-level
planning by either the Services or the applicants. Nonetheless, the
tradition within the Services has been to implement the Act species by
species and site by site. Such tradition is often difficult to
overcome.
There can be major advantages to the non-Federal rights holders as
will as to the achievement of the species conservation goals if
landscape-level planning is applied. Concentrating on large landscape
units for conservation planning and permitting can address many of the
perceived problems with HCPs. This is not to say that larger, more
complex HCPs have performed better than smaller and simpler plans. To
the contrary, rescaling is advantageous only to the extent that it
opens the possibility of overcoming, not replicating, the limitations
and deficiencies that have plagued landholding-specific HCPs. The
potential advantages of landscape-scale HCPs identified in the workshop
are the following:
A. Landscape-scale planning can specify the overall conservation
effort that will be needed for communities of species and provide a
basis for determining what share of that burden an individual property
owner should bear in an HCP. There is no mechanism at present for
allocating that conservation burden as between private landowners or
between them and the public lands, Instead, the burden allocation is
made in a piecemeal fashion through the approval of HCPs, Sec. 7
consultations, and public land management plans and permit issuance. In
theory, those who get their approvals earliest get the best deal, with
larger burdens reserved for latecomers.\1\
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\1\ This burden allocation problem is not susceptible to a simple
or uniform principle. In some cases, the private land's share of the
burden, in the aggregate, should be ``no net loss'' of habitat values.
But, ``no net loss'' of habitat does not necessarily ensure the
conservation of species. For example, most listed species require some
form of active management (e.g. prescribed fire, exotic species
control, etc.). Theoretically, an HCP could result in a net loss of
habitat, but in providing needed management for such species, provide a
net conservation benefit for that species. Furthermore, not all habitat
has the same value. For example, conservationists may be willing to
trade two groups of red-cockaded woodpeckers in highly fragmented
habitat for creation of a single group that is in a critical linkage
zone in a designated recovery population. Moreover, HCPs should not be
called on to solve all endangered species conservation conflicts.
Sometimes the government will have to bear a greater burden, such as
where the only ecologically justified mitigation is just too expensive
for an HCP to bear because, for example, a species is critically
endangered and cannot suffer any further habitat loss. In these
situations, the Federal Government may have to purchase the critical
private land holdings. Then there is the question whether the public
lands share of the burden be set as national policy or negotiated among
the affected stakeholders as part of a recovery plan or other
bioregional plan.
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B. At the landscape level, it is possible to calibrate habitat
conservation planning to a recovery standard for endangered species and
to prevent threats to other vulnerable species. Landholding-specific
HCPs tend to aim for mitigation or at best, avoidance of impacts on
listed species whereas the only biologically defensible aiming point
for habitat conservation is a net improvement in the prospects or
survival and prevention of further losses to unlisted species in
decline. A conservation or ``recovery'' standard would be much easier
to accomplish if HCPs were oriented toward restoring entire landscapes
rather than simply limiting wildlife losses.
C. Landscape-level planning promotes economies of scale in data
collection and monitoring. Good science is expensive. The burden of
marshalling and interpreting the needed information is onerous for
individual rightsholders seeking development permits. Rescaling shifts
an appreciable degree of this burden from individual property owners
applying for incidental take permits to the public agencies and the
broader constellation of rightsholders that have interests and
responsibilities in the eco-region. At a landscape level of
conservation, it is also easier to evaluate and allocate a ``fair
share'' of the burden among all public and private entities.
D. Adaptive management of conservation strategies and reserve
design is facilitated and made more flexible at a larger planning
scale. That is because adaptive management requires that some part of
the development plan covered by an HCP remain contingent. It is more
feasible to do this in larger scale habitat plans. However, adaptive
management is still often feasible with smaller plans as well.
E. The quality and degree of public participation is generally
better at a broader scale of planning. This is especially true if a
local government mediates the habitat conservation planning process by
applying for the Federal permit and then issuing subpermits to
individual landholders. Such local agencies generally include the
public routinely in such land use planning processes. The empirical
evidence does not support the conclusion that public participation has
been superior where a single-landowner prepares a large landscape-level
HCP as is true for many timber HCPs.
If landscape-level planning offers the best prospects for species
conservation, then it is necessary to ask what kinds of incentives,
inducements and cost-sharing arrangements would cause habitat
conservation planning to (1) occur at the landscape level, (2) achieve
a recovery level of performance (3) encourage local governmental
participation. This will require a reorientation by the Services, whose
historic ESA implementation has fostered the choice of inappropriate
planning units. Instead, the Services should view incidental take
permits as fitting within a broader conservation framework governed by
specified standards and goals, such as one finds for other
environmental permitting regimes which are structured to achieve area
wide environmental quality goals. For instance, under the Clean Air
Act, an applicant for a permit to discharge regulated air pollutants
into an airshed that is already impaired must demonstrate a net
positive contribution toward the goal of reducing the overall level of
emissions in order to help meet the ambient air quality standards. To
do this, the permittee must offset (i.e. do more than just mitigate)
its emissions by procuring reductions from other facilities. In the
water quality arena, NPDES permittees must show that their contribution
of contaminants will not violate basin-wide standards that are designed
to assure conditions necessary to support ``beneficial uses'' of the
watercourse.
Likewise, the workshop suggested that individual HCPs should be
calibrated to contribute toward achieving a bioregional conservation
strategy that aims for long-term, sustainable conservation. This may
sometimes entail more than avoiding or minimizing impacts on the
subject landholding. It may also entail reducing the threat to the
species on other lands through offsite mitigation via a mitigation
fund. Mitigation funds can be used, for instance, to purchase the
highest-quality habitats to prevent their development. A development
exaction of this sort is often best administered by local agencies of
government that are charged with regional land use planning. This is an
additional reason to utilize local jurisdictions as the vehicle for
bioregional habitat conservation planning. However, since bioregions
often cross local (e.g., county and even state) jurisdictional
boundaries, coordination by a higher-level jurisdiction may be
necessary.
Several potential vehicles emerged in the workshop discussions for
rescaling habitat conservation planning. One is to accelerate the
development and improve the performance of recovery plans under the
ESA. There are several potential vehicles for rescaling habitat
conservation planning. One is to accelerate the development and improve
the performance of recovery plans under the ESA. There are several
problems with this vehicle, however:
Too often today, recovery plans do not exist and therefore
cannot serve as a guide to individual HCPs. Yet, it is not realistic
for the Services to decline to approve a proposed HCP until a recovery
plan for the covered species is in place. One alternative is to make
the approval of such HCPs conditional upon adoption of the recovery
plan. This can work without undue risk to the permittee under the
adaptive management strategy described later in this document so long
as the Services are diligent in their recovery planning efforts.
When recovery plans have been developed, they generally
have not resulted in more adequate HCPs.\2\ Historically, recovery
plans have been of poor quality. Most are not biologically defensible.
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\2\ See generally Kareiva et. al, Using Science in Habitat
Conservation Plans, National Center for Ecological Analysis and
Synthesis, Univ. of California, Santa Barbara, and American Institute
of Biological Sciences. Washington, DC. (1999).
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Recovery plans have often inappropriately subordinated the
biological objective to economic considerations. Economics does count
in apportioning the conservation burdens among the public and private
landowners, but must not be allowed to dictate the biological
requisites of the recovery plan.
Recovery plans are not viewed as binding and enforceable
because that would be tantamount to the Federal Government engaging in
land use planning. That is more a political than a legal objection,
however. In fact, the Federal Government needs to have a basis for
deciding whether an HCP provides sufficient conservation benefit to be
approvable. Recovery plans can provide that guidance.
Recovery is a species-based concept and recovery plans do
not necessarily accomplish much for ecosystems, their processes, or
functions. However, there is no obvious reason why bioregional HCPs
cannot adopt a ``recovery'' conservation goal for those species in the
assemblage that are listed under the Act. Likewise, there is no reason
why recovery plans cannot address multiple species and be habitat-
based. Such an approach would further the goals of the Act, i.e., to
preserve the ecosystems upon which threatened and endangered species
depend.
A second promising vehicle is preparation of HCPs and
administration of take allowances through sub-permits by units of State
and local government that already have the predominant role in land use
planning. One example is the California Natural Communities
Conservation Program (NCCP) approach.
A third vehicle is the promulgation of programmatic standards or
guidelines for multi-species conservation by Federal land and water
managers and regulators. For example, the recent adoption of NMFS'
programmatic guidelines for logging on anadromous fish-bearing streams
in the Pacific Northwest may prove to be a useful model in other
contexts. Such programmatic guidelines can apply standards for riparian
buffers and acceptable levels of sedimentation to entire watersheds or
other ecologically significant planning units. Similarly, the Aquatic
Conservation Strategy component of the President's Forest Plan provides
a multi-layered planning approach intended to result in ecosystem-wide
forest management.
Recommendation No. 2.--Calibrate Habitat Conservation Planning to
Biologically Defensible Goals
Biological science should drive the development of both bioregional
and individual landowner plans. Economics is relevant to the allocation
of responsibilities among landowners--public and private--in achieving
the conservation goals of the plan, but should not be allowed to
intrude into the choice of conservation strategies. The performance
reviews revealed, however, that the statutory command to ``minimize and
mitigate project impacts to the maximum extent practicable'' has become
an economic feasibility standard in practice. HCP negotiations have
often been driven by the applicant's assertions as to the effects of
mitigation alternatives on profit margins, rather than by the
biological imperatives.
Species recovery is the ultimate goal of the ESA and contribution
to this goal is the yardstick by which the habitat conservation
planning process should be measured. HCPs will be viewed as
contributing to the problem rather than the solution unless they are
designed to advance a restoration strategy, that is, unless they confer
a net survival benefit to the species. Otherwise, the Services are
running a hospital in which the patients will never be taken off life
support.\3\
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\3\ On heavily impaired lands, even a net benefit standard may not
be enough to recover the species or prevent local extirpation. In these
circumstances, the Federal Government's role in bioregional planning
may need to include purchasing and restoring such lands. HCPs should
not be counted on to solve all endangered species/private lands
conflicts.
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The difference between ``survival'' and ``recovery'' can be
understood as different levels of risk for the species. At present, the
level of acceptable risk is left to the judgment of the applicants and
the Services and is never made explicit. Often, there generally are not
sufficient data to quantify these risks. Qualitative analysis of risk
factors is possible, however. This type of risk analysis is familiar
terrain in setting air and water quality criteria, for example. Thus,
it would be feasible to assess the risk to species by identifying and
addressing the factors that have the largest effect on survivability.
Independent scientific Peer review would be very beneficial in doing
this.
Such higher conservation objectives may require greater landowner
incentives. Indeed, it makes sense to correlate the extent of
regulatory assurances to the extent of biological benefit conferred in
an HCP. One way to do this is to link the duration of regulatory
assurances to the degree of conservation effort embodied in the plan.
Plans that contribute to recovery would get longer-term assurances than
those that only avoid jeopardy. Similarly, plans based on highly
adequate data and analysis would be entitled to longer-term guarantees.
Creating incentives to achieve a higher level of conservation
performance may also entail shifting a larger share of the conservation
``costs'' from the non-Federal landowners to the Federal land
management agencies by holding them to a higher standard of performance
than prevention of jeopardy to individual species. Unfortunately, that
is the aiming point for most management decisions on Federal land. This
low standard of management for the public lands should concern to the
property rights community as much as the conservation community because
the consequence is to apportion a higher burden of species conservation
on the private rightsholders (or a compromise of the biological goals
of the ESA). Of course, allocating conservation ``costs'' between
Federal and non-Federal lands is not an option in regions of the
country where there is little or no Federal land, or where existing
Federal land is unsuitable to support the species in question.
Getting the incentives right is essential to making the HCP program
work. The workshop illuminated the tradeoffs. If the Services enforced
the ``take'' prohibition under Section 9, it would create a strong
incentive for private rights holders to seek incidental take permits,
for which HCPs are a pre-requisite. Clearly, the more vigorous the take
enforcement, the greater the incentive to develop approvable HCPs. As
the incentives increase, so does the quality that can be demanded in
HCPs. To be sure, the penalty needs to be sufficient to nullify any
economic benefits of non-compliance; nominal penalties are likely to be
absorbed as a cost of doing business rather than serve as a deterrent
to taking species or destroying habitats. Because the Services are
reluctant to enforce Section 9, the main negative incentive is the fear
of citizen suits and the attendant insulation that an HCP can provide.
On the other hand, the larger the potential penalty, the greater
the perverse incentive to destroy habitat before a listing occurs. The
practical difficulties in enforcing take also limit its incentive
value. Enforcement is often difficult because the Services cannot enter
private lands without permission to survey for species. The Services do
not have the budget to consistently enforce, and this is not likely to
change. Increased enforcement of the take prohibition also mobilizes
private property owners against the Act who believe that they are being
required to pay for the conservation of a public good. And, for many
species there will always be a low risk of enforcement, since we do not
have the necessary data for these species, and thus do not know what
constitutes take (e.g. mussels). For other species, the Services do not
know where they occur on private lands.
These realities assure that the take prohibition cannot substitute
for habitat conservation planning on non-Federal lands, but it is an
essential incentive to HCP development. The fear of take enforcement
and regulatory guarantees together must be incentives encouraging
meaningful habitat conservation. That is the calculus of the Services'
``No Surprises'' rule. Some workshop participants confirmed that
landowners are preparing HCPs because capital markets (banks) insist
upon HCPs before they will lend project development funds. Capital
markets place a high value on assurances that future restrictions will
not impede development. This may not apply to ``commodity'' lands where
take detection and enforcement is problematic.
Recommendation No. 3.--Adaptive management and biological monitoring
should be required components of all HCPs.
Every HCP should be regarded as a ``learning laboratory'' wherein
the conservation arrangements are treated as working hypotheses. In
that regard, the elements of adaptive management and the potential
responses to changes should be built into the plan from the beginning.
Another term for ``adaptive management'' is ``contingency planning''.
In either, the core requirements are a program for evaluating the
performance of the HCP and the specification of contingency
arrangements (alternative conservation measures) that would be
triggered automatically in the event the performance fails to meet the
goals. This might entail the plan implementer to implement in phases so
that permission to begin a later phase is contingent upon the Services
verifying that the permittee has met the performance standards in the
prior phase. This is more easily accomplished in large ecosystem-based
plans that are implemented over time.
Workshop participants identified five elements or steps to develop
an HCP with adaptive management and monitoring:
1. Identify explicit quantifiable goals;
2. Identify imaginative policy options;
3. Identify explicit human-induced and other stresses on the
system;
4. Monitor biological indices by developing a statistically valid
sampling scheme or an analytic structure for interpreting data; and
5. Develop mechanisms to translate data into needed plan
adjustments by the land managers and the oversight agencies.
These elements call for the rigorous application of the following
scientific methods:
System Assessment: systematic collection and statistical
analysis of data on ``health'' of the important ecosystem components
and on the factors that may influence health at several levels:
population, species, community, habitat, and ecological processes.
Experimental science: rigorous, controlled, empirical
tests to confirm causal relationships, management hypotheses, and the
incidental impacts of management.
Risk analysis: statistical analysis of empirical results
to identify levels of uncertainty and therefore ensure against ``net
harm''. Risk assessment need not be quantifiable. We can start by
identifying which activities will result in the largest impacts, then
develop a conceptual monitoring approach. For example, employing such
risk factors as habitat loss, birth rate, and migration barriers allows
planners to ret a better sense of whether risk levels are acceptable.
Provision for uncertainty: discussed below.
All of the above methods require monitoring. Notably, the NCEAS
study found that less than 50 percent of HCPs had clear monitoring
plans in place, where ``monitoring'' meant more than just ``counting''
animals. Yet, monitoring will not necessarily reveal the changes that
need to be made in time to make them. This argues for a margin of
safety in the selection of the HCP conservation strategy. Rigorous
monitoring is worth doing even for HCPs that do not have an adaptive
management feature because the rate of amendments to HCPs (at the
landowner's request) tends to be high. Amendments provide the
opportunity for adjustments in conservation strategies.
Monitoring must also be time-scale sensitive to the species or
system monitored with respect to generation times. For example, short-
lived species, e.g., listed mice species, must be monitored much more
frequently than long-lived species, e.g., desert tortoises (with
respect to generation time), and annual plants more frequently than
redwood tress. In short, effective monitoring is keyed to the specific
species.
Strategies for dealing with critical uncertainties are essential
for adaptive management, and to make the HCP process work in general.
An effective and acceptable strategy would detect possible fatal data
deficiencies and deal with them in a manner that does not place the
target species at risk due to irreversible development of habitat but
also does not make development impossible. The first step is to make
the adequacy of the data explicit. To assess the sufficiency of data
for habitat conservation plans, an inventory of available data and
acknowledgement of gaps should be a routine requirement.
When critical data are unavailable or inadequate for prudent
planning, and it is not realistic to saddle the ITP applicant with the
burden of undertaking original research and developing data, certain
precautionary processes should accompany that ITP:
The greater the impact of a plan, the fewer gaps in
critical data should be tolerated. For example, the standard of data
adequacy would be higher for irreversible activities such as are
typical in urban development as opposed to activities whose impacts can
be temporary, as is sometimes the case for water diversions.
A scarcity of data on impacts of take should be handled by
assuming a worst case-scenario in determining whether approval criteria
have been satisfied.
For large HCPs covering vast expanses of land, take needs
to be quantitatively assessed.
Where there is a scarcity of information to validate the
effectiveness of mitigation, mitigation measures should be implemented
and assessed before take occurs. This could become an explicit approval
criteria for HCPs.
Monitoring needs to be very well designed in those cases
where mitigation is unproven.
Adaptive management needs to be a part of every HCP judged
to be predicated on substantial data shortages, not just to deal with
``unforeseen circumstances''.
When faced with data shortages, there needs to be explicit measures
for using the information from monitoring to alter management
procedures. This means that a precise trigger for ``mitigation
failures'' needs to be spelled out, as well as procedures for adjusting
management when that signal of ``failure'' has been received. The key
point here is that the mere existence of monitoring is not a solution
to data shortage there also has to be a quantitative decision-process
that links monitoring data to adjustments in management.
In sum, where critical information is scarce or uncertain, the
resulting plans should:
be shorter in duration
cover a smaller area
avoid irreversible impacts
require that mitigation measures be accomplished before
take is allowed
include contingencies
have adequate monitoring
Recommendation No. 4.--Regulatory assurances should be compatible with
adaptive management and commensurate with an HCP's conservation
performance
In HCP negotiations, the landowners typically want regulatory
assurances that tend to shift the risks associated with complex
biophysical systems to the species, which can ill afford them. The
permit applicant wants to be absolved of further responsibility for the
conservation of the species in exchange for the development concessions
he/she makes in the HCP, irrespective of the future population trends
for the covered species. That is what is effectively conferred by the
``No Surprises'' guarantee.
But biological systems are inherently fraught with uncertainty.
They are not only more complex than we know; they are inherently more
complex than we can know, in the words of one eminent workshop
participant. Adaptive management responds to this reality. Under
adaptive management, HCPs are acknowledged to be mere working
hypotheses, predicated upon assumptions about how species and their
ecological processes and functions respond to changes in habitat size,
location, configuration, quality, etc. Under adaptive management, these
assumptions, uncertainties, and knowledge gaps are made explicit, and
the conservation strategy includes a directed and funded program of
hypothesis testing against specified and measurable performance goals,
monitoring and, most important of all, adaptations of the initial
conservation strategy in response to the results.
Adaptive management will also require a fundamental change in the
way the regulatory assurances are structured, so that HCPs remain
flexible and contingent, rather than immutable, as they are now. One
solution lies in converting the assurance package from regulatory
immunity to regulatory indemnity. That means that if adaptive
management indicates that the species' prospects would be better served
by additional restrictions on the use of land or other mitigations,
those could be accomplished without the consent of the landowner, but
also without economic penalty to the landowner. The biological risks
would, in effect, be absorbed by a compensation fund.
An analog to this is an insurance arrangement under which the issue
of who shoulders the risks associated with HCPs converts to the issue
of who funds the indemnity pool, and how the decisions on compensation
will be made. The regulatory compensation could be funded from
``premiums'' contributed by the beneficiaries, which include the HCP
applicants as well as the taxpayer. There is also the potential to fund
a portion of the compensation pool through reductions in the cost of
debt service for covered development projects. An indemnity arrangement
does reduce the risks to development under the ESA. Some share, perhaps
most, would also need to be absorbed by the public. This is beginning
to happen in the aquatic arena.\4\
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\4\ Solving the issue of how to determine compensable loss in a
manner that satisfies the private rightsholders is trickier in the
terrestrial HCP context than in the aquatic HCP context (where lost
water supply reliability is both relatively easy to measure and to
compensate). Higher conservation objectives may require higher
incentives.
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Regulatory assurances should not be automatic. Rather, the Services
can and should calibrate the regulatory assurance conferred (e.g., the
scope or the duration) to the assurance of conservation performance
provided by the HCP. Plans that contribute to recovery would get longer
guarantees than those that simply maintain the current population level
or allow some decrease. Similarly, plans where the underlying data and
analysis are judged highly adequate, via objective, definable
standards, would be entitled to longer-term guarantees.
A recommended approach is to negotiate as a term of the HCP the
circumstances that would trigger a requirement for changes in the HCP,
the type of changes that could be required, the responsibility for
implementing those changes and the contingencies that must be left open
in the development plan to allow these changes to be made.
Stronger, more complete, or longer term assurances might be
reserved for HCPs that have the following features:
1. plan-specified performance goals;
2. an effective monitoring program;
3. an adaptive management element which identifies the significant
risks of the HCP not achieving the performance goals, a contingency
plan that is triggered in that event, and a commitment of funds to
carry out this element;
4. a commitment by the parties to effective enforcement of the HCP
terms; and
5. third party enforcement provisions, should the commitment to
abide by the terms of the HCP as described above fail.
Recommendation No. 5.--The Services should make every effort to
encourage direct public participation beyond the minimum
legally required.
Public participation in the development of an HCP can enhance the
quality of information on which HCP decisions are based, improve
understanding and relationships among HCP stakeholders, heighten public
and political support for an HCP, and enhance the long-term viability
of an HCP. The public has a significant stake in the HCP process
because wildlife is a public resource, both legally and politically.
And, whatever conservation responsibilities or risks are not borne by
and ITP applicant will be shifted to other landowners or the public
lands, usually at public expense.
A recent study by the University of Michigan revealed that the
degree of public acceptance of an HCP is strongly related to the degree
of public participation in the development of that plan. The more that
interested parties are accorded a role in developing conservation
plans, rather than merely commenting on completed plans--the more
satisfied they tend to be with an HCP.
The timing and short duration of the comment periods for HCP
documents under NEPA and the ESA limit meaningful public involvement.
Currently, HCP scoping occurs early in plan development while the
project is poorly defined. The next commenting opportunity usually
comes at the end, when most decisions are already locked in. At that
point, there are no incentives to renegotiate these provisions to
incorporate changes requested by the public even if the public provides
significant new information. And, then, the comment periods tend to be
too short for interested citizens to master the details of a given plan
and compose and submit comments. The workshop determined that if the
Services invited the public to comment on important issues as they
arose or at ``trigger points'' throughout the planning process, the
public would not be confined to participating only in the very early
stages of embryonic plans, or after the key HCP provisions have already
been negotiated.
Another way to expand public involvement has already been
mentioned. That is the workshop's overarching recommendation to rescale
habitat conservation planning and involve local land use agencies.
Public access and effective participation in the development of the
conservation ``deal'' would be greatly enhanced where the HCP applicant
is or includes units of local or State government. Local or State
governmental agencies are likely to involve the public in much the same
way the public participates in local land use decisions. This can occur
because State laws often provide for open hearings and easy access to
public documents. This allows citizens to directly address and interact
with public officials in HCP development and implementation. This
element supplements and often exceeds the minimal Federal requirements
for notice and comment under NEPA.
Fundamentally, the problem with public access to the process is
that the Services have delegated the ``gatekeeper'' role to the permit
applicant. The applicant exercises sole discretion as to who will and
who will not be given a seat at the negotiating table. This reflects
the Services' mistaken notion that an HCP is just a permit application
over which the applicant should exercise final substantive control. But
an HCP is much more than an application. It is for all intents and
purposes a negotiated settlement of the terms and conditions under
which a discretionary permit will be issued to engage in otherwise
forbidden acts, namely the taking of protected species. An HCP is not
just the applicant's work product. It is a compromise jointly produced
by all parties to the HCP negotiations. Once its terms are approved by
the Services, the ``incidental take permit'' or ``implementation
agreement'' is largely a formality.
Functionally, the approved HCP is the permit to take protected
species. As such, the process through which it is formulated, issued
and approved should be as open to interested members of the public as
is the issuance of land use permits in other contexts. For example,
when the Department of Interior grants grazing permits under the
Federal Land Policy and Management Act, it allows for public
participation so that all parties affected by the process will be fully
represented.\5\ NPDES permits and local building permits are similarly
public processes. Those permit applicants are not allowed to control
who can and who cannot participate in the permitting process. Likewise,
the Services, not the applicants should determine who gets a seat at
the HCP negotiation table.
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\5\ Other Federal statutes allow stakeholders to help shape natural
resource use and protection. The EPA convenes interested stakeholders
in setting Federal water quality standards, and NMFS itself employs
stakeholder groups under the Marine Mammal Protection Act in its
efforts to reduce the harm commercial fishing has on imperiled fish
species. Nothing in the ESA precludes the Services from employing
similar measures to involve the public in the HCP context.
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The issue of who sits at the table is crucial to the quality and
acceptability of HCPs and the process itself. Upgrading the independent
scientific bases for HCPs cannot be done solely after the fact, in the
form of peer review. By then, the fundamental decisions regarding the
design of the conservation strategy, the monitoring program, and the
adaptive management arrangement will already have been settled in the
negotiation process. If the science underlying HCPs needs to be
improved--and most commentators believe that to be the case--this must
be done by bringing these experts directly into the negotiations at the
earliest stages. The current arrangement assumes that the agencies and
applicants alone can be relied upon to marshal the needed expertise.
But, in fact, the Services' internal expertise is spread very thin
where literally hundreds of HCPs are in development simultaneously, and
the applicant's experts may appear to be influenced by the
understandable desire to minimize the costs of conservation measures.
This is not to say that in acting as gatekeepers the Services must
admit to the table everyone who knocks on the door. Demonstrated
ability to contribute substantively to the issues on the table without
undue delay may be made the price of admission. We simply urge that the
Services themselves assume the role of making these decisions and not
leave them to the permit applicant. Native fish and wildlife are public
resources under both State and Federal jurisprudence, wherever they may
be found. It is fundamentally wrong to treat permits to take endangered
species on private lands as though the public does not have an interest
in the substantive validity of the negotiated terms and conditions.
Recommendation No. 6.--Independent scientists and scientific
information should be used to strengthen HCPs.
Whether the conservation strategy adopted in an HCP is adequate to
meet the biological goals requires the exercise of professional
judgment and discretion. It is essential that these be specified
explicitly and correctly. Even apart from the influence of economics
and politics on these judgments, there may be a spectrum of responsible
opinions among scientists and agency officials as to whether thresholds
of data adequacy or standards for plan approval have been met. There
are few bright lines and courts are ill equipped to arbitrate such
technical disputes. We need an HCP process that reliably attains the
biodiversity conservation objectives of the ESA (survival and recovery)
in spite of potential differences in responsible scientific judgment.
Independent scientific review may help fulfill that role.
Scientific review is also important because decisions on
conservation strategy made apart from the view of the scientific
community and the public will not have the credibility that HCPs need.
The Service negotiators also need the reinforcement that independent
science can provide. Outside scientific scrutiny imposes a standard of
scientific excellence that is difficult to counteract. The Services
have the responsibility of ensuring that applicants use adequate
scientific information to develop HCPs. Conservation and permitting
decisions made without a clear, factual basis and a demonstrable link
to information will not result in credible and legally sustainable
HCPs. Independent scientific involvement can reinforce the Services'
decisions if conducted and managed properly. One way to approach this
would be to enlist independent scientists in the development of general
scientific principles or guidance for species or habitats on which HCPs
can then be based, such as the regional conservation guidelines for
coastal sage scrub in Southern California.\6\
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\6\ A qualified independent reviewer is one who: (1) has little
personal stake in the nature of the outcome of decisions or policies,
in terms of financial gain or loss, career advancement, or personal or
professional relationships; (2) can perform the review tasks free of
intimidation or forceful persuasion by others associated with the
decision process; (3) has demonstrated competence in the subject as
evidenced by formal training or experience; (4) is willing to use her
or his scientific expertise to reach objective conclusions that may be
discordant with her or his value systems or personal biases; and (5) is
willing and able to help identify internal and external costs and
benefits--both social and ecological--of alternative decisions.
Typically such a person is associated with a recognized scientific
society or is otherwise an established professional in a particular
field.
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The timing of scientific input is critical for shaping HCPs. It is
important to get scientists involved as ``scientists,'' providing data
and analyses, not just as reviewers, reacting to someone else's data
and analyses. The input must come at the formative stage when ``first
principles'' of the application of conservation science are being
established for the reserve design or other conservation strategy.
These decisions are made as the HCP is negotiated, not at the stage
where the Service issues the incidental take permit. At present, HCP
applicants control access to the negotiations. The Services accord them
this discretion because they view HCPs as applications for a regulatory
permit, and therefore as the applicant's workproducts. But HCPs are
really negotiated settlements of regulatory liabilities, not just
applications for permits. The governmental action takes place in these
negotiations. Permit issuance is a mere formality.
One way to interject independent science into HCPs is to bring
independent qualified experts into the negotiations directly under the
sponsorship of the local communities or interested conservation
organizations. However, these potential participants often do not have
access to such expertise or the means to procure it. An ``HCP Resource
Center'' comprised of a nationwide network of conservation scientists,
resource economists and legal experts with negotiation skills could
meet this need. It could allow tailored expertise to be deployed to
engage directly and effectively with the agency and applicant's team of
negotiators. This will not be easy to do. Cost is not the only barrier
to incorporating independent science. For most species, the pool of
scientific expertise will be very small.
______
[From the Natural Heritage Institute]
Where Property Rights and Biodiversity Converge:
Lessons from Experience in Habitat Conservation Planning
(Submitted by Gregory A. Thomas)
introduction
The Conflict between Biodiversity Protection and Private Property
Rights
Harvard professor Edward O. Wilson predicts that at current
extinction rates, our world could lose, forever, a fifth or more of its
plant and animal species by the year 2020. \1\ That is 1,000 to 10,000
times the natural extinction rate. The consequences are real: for
example, in the United States, 16 percent of mammals, 14 percent of
birds, and an alarming 37 percent of freshwater fishes are either
extinct, imperiled or vulnerable. \2\ Each of these species is a unique
adaptive experiment never to be repeated while this planet endures, a
once-only chemical laboratory, a bit of wonder and learning never again
to emerge. We are, in effect, throwing away the science books before
they can be written. The overwhelming cause is loss of habitat.
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\1\ Edward O. Wilson. The Diversity of Life. W.W. Norton & Co.,
New York. 346 (1992).
\2\ The Nature Conservancy. 1997 Species Report Card: The State of
U.S. Plants and Animals 10-11 (1997).
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The overarching goal of the Federal Endangered Species Act (ESA) is
to conserve species and the ecosystems upon which they depend. \3\ For
a quarter century, the ESA has served as the safety net between peril
and extinction for the thousands of species that have been listed for
protection. However, during that time, the ESA has not kept pace with
the emerging biodiversity crisis. \4\ In the years since the Act's
passage, only a handful of species of have been delisted, signaling the
recovery of the species to a stable population level. \5\ Less than a
tenth of all listed species are actually improving in status, while
nearly four times that number is declining. \6\
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\3\ 16 U.S.C. Sec. 1531(b).
\4\ Biodiversity is a shorthand expression for the ``full richness
of life on earth,'' and encompasses at least three levels of diversity:
genetic diversity, species diversity, and community or ecosystem
diversity. Noss, R.F., & A. Cooperrider, Saving Nature's Legacy:
Protecting and Restoring Biodiversity. Defenders of Wildlife and Island
Press, Washington DC. 3-13 (1994).
\5\ Flaws in the ESA significantly contribute to its
ineffectiveness in conserving biodiversity. Rohlf, Daniel J. Six
Biological Reasons Why the Endangered Species Act Doesn't Work--And
What To Do About It. 5 Conservation Biology 273, 274 (1991).
\6\ U.S. Fish and Wildlife Service. Report to Congress: Recovery
Program, Endangered and Threatened Species. Washington, D.C. (1994) as
quoted in Environmental Defense Fund. Rebuilding the Ark: Toward a More
Effective Endangered Species Act for Private Land 1 (1996).
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Among the daunting challenges that conservationists will face in
the next era of biodiversity protection, the potential conflict between
private property rights and the public interest in preserving
biodiversity is posed to become an increasingly contentious issue.
According to the U.S. Fish and Wildlife Service, half of all federally
listed species do not occur on Federal lands, and more than half of
listed species have at least 80 percent of their habitat on nonFederal
land. \7\ The only hope for preserving species over time is by
maintaining or restoring viable populations of species that are
adequately distributed in healthy ecosystems. \8\ Yet, for those
species whose habitat is mainly or exclusively on private lands, intact
ecosystems are increasingly rare.
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\7\ Defenders of Wildlife. Frayed Safety Nets: Conservation
Planning Under the Endangered Species Act 1 (1998).
\8\ Cheever, Federico. The Road to Recovery: A New Way of Thinking
About the Endangered Species Act. 23 Ecology Law Quarterly 1, 4 (1996).
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The potential conflict between habitat conservation and private
development rights has several dimensions. There is a practical
consideration: Because property rights include the right to restrict
access, destruction of habitat--even if illegal--is difficult to
monitor and enforce. There is a federalism consideration: Land (and
water) use planning has long been regarded as the province of local
units of government rather than the national government which
administers the ESA. And there is an equity consideration: Where other
areas of environmental protection require those who cause the problem
to pay for the solution, endangered habitat protection visits the
conservation burden on the hapless few who happen to own the remnant
tracts while those who have destroyed the original habitat are by that
very act immune to regulation. For all of these reasons, conservation
of habitats subject to private rights requires a degree of cooperation
by those property owners, which is uncommon in the field of
environmental law.
Habitat Conservation Plans: A Possible Solution
When it was enacted in 1973, the ESA simply prohibited any ``take''
of endangered species, and that prohibition has since been extended by
the U.S. Supreme Court to include destruction of a species' critical
habitat. \9\ However, an absolute ban on the development of endangered
species habitat proved unworkable. ``Habitat conservation plans''
(HCPs) are Congress' solution. The Act was amended in 1982 to authorize
the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service (the ``Services'') to permit take incidental to development
when approved as part of a habitat conservation plan prepared by the
land or water rights holder. \10\ These HCPs are essentially negotiated
settlements of regulatory liabilities, designed to foster economic
development free of the risks associated with the occurrence of
endangered species on private lands. HCPs must include species
conservation and mitigation measures sufficient for the Services to
find that the take will not appreciably reduce the likelihood of
survival or recovery of the species. \11\ The landowner then receives
an assurance--called the ``No Surprises'' guarantee--that the Services
will not increase the conservation measures or other requirements
without the landowner's consent, no matter how successful or
unsuccessful these may ultimately prove to be. The No Surprises
arrangement has ignited a veritable explosion in HCPs. As of this
writing, some 400 such plans are in various stages of development,
approval or implementation nationwide.
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\9\ Babbitt v. Sweet Home Chapter of Communities, 115 S.Ct. 2407
(1995).
\10\ 16 U.S.C. Sec. 1539.
\11\ According to the ESA, the Services are required to base
approval of an HCP on whether:
(1) the taking will be incidental to the carrying out of an
otherwise lawful activity;
(2) the impacts of the taking will be minimized and mitigated to
the maximum extent practicable;
(3) the applicant will ensure that adequate funding for the plan
will be provided;
(4) the taking will not appreciably reduce the likelihood of
survival and recovery of the species in the wild, and;
(5) the landowner agrees to include other measures that the
Services may require.
16 U.S.C. Sec. 1539(a)(2)(B).
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Controversial Features and Imperatives for Reform
Several features of HCPs have stirred controversy. First, HCPs
allow the Services to permit development activities that will have some
measure of adverse impact species and habitats that are already
severely depleted, as long as these activities do not appreciably
reduce the prospects for the survival and recovery of the species. What
these species need, however, is a net improvement in their survival
prospects. They need a recovery strategy. Indications of this mismatch
between statutory and conservation requirements can be seen on the
ground: 62 percent of listed species are declining in areas where they
are covered by an HCP and 4 percent of these species are declining so
rapidly that extinction is possible within the next 20 years. \12\ As
long as HCPs are seen as instruments to ``nickel-and-dime'' species
toward extinction, the HCP process will never be satisfactory to
conservation interests, just as it will never be satisfactory to
private rights holders as long as habitat conservation represents a
permanent cloud over the exercise of development rights.
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\12\ Kareiva, Peter, et al. Using Science in Habitat Conservation
Plans. National Center for Ecological Analysis and Synthesis (NCEAS),
Univ. of California, Santa Barbara, and American Institute of
Biological Sciences, Washington, D.C. (1999) (hereinafter cited as
``NCEAS'').
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Second, the ``No Surprises'' regulatory assurance provides
landowners with important incentives to participate in the development
and implementation of HCPs. But it does so by shifting to the
vulnerable species the risks incident to incomplete and uncertain
understanding of how abundance levels will respond to particular
conservation strategies. Neither investments in private development nor
the survival of species are secure under this arrangement. The
regulatory exemption is a gamble because HCPs tend to freight more on
the current state of conservation science than it can deliver.
Ecological dynamics are inherently fraught with uncertainty, and often
there is no certain answer to the key questions that are posed in an
HCPs. As three respected experts have stated, ``Biological systems are
not only more complex than we know; they are inherently more complex
than we can know.'' \13\ For many years, the dominant scientific
paradigm assumed that ecosystems were stable, closed, internally
regulated and behaved in a deterministic manner. However, the modern
understanding is that ecosystems are in a constant state of flux,
usually without long-term stability, affected by a series of human and
other, often stochastic factors, many originating outside the
ecosystems themselves. \14\ Biologists worry that the ``No Surprises''
guarantee does not take into account this new understanding. As 150
prominent conservation scientists stated to the U.S. Congress,
assurances to landowners that the conservation obligations in their HCP
will remain immutable ``does not reflect ecological reality and rejects
the best scientific judgment of our era. It proposes a world of
certainty that does not, has not, and will never exist.'' \15\ Should
the rigidity of the ``No Surprises'' guarantee so hobble the ability of
the Services to take action that a listed species is extirpated, this
entire artifice is likely to crash in the political firestorm that
would ensue.
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\13\ Noss, Reed; Michael A. O'Connell, & Dennis Murphy. The Science
of Conservation Planning: Habitat Conservation Under the Endangered
Species Act 76. Island Press: Washington, D.C. (1997).
\14\ Williams, John G. Notes on Adaptive Management, Prepared for
the Ag-Urban Ecosystem Restoration Team 3, reprinted in Comments Of The
Natural Heritage Institute Regarding The CALFED Bay-Delta Program Draft
Ecosystem Restoration Plan (Nov. 1997).
\15\ Meffe, Gary K, and 78 other scientists. Letter to U.S. Senator
John Chafee and Congressman James Saxton (July 23, 1996).
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Finally, conservation interests and local communities are often
excluded from the balancing of biodiversity protection and local
economic development that occurs in the HCP negotiations. As a
consequence, the process often does not garner the support of these
interests or generate confidence in the scientific bases of the
resulting conservation program.
Yet, some vehicle is needed to conserve habitats affected by
development rights on lands and waters beyond the Federal domain. In
order to be effective, the tool must provide incentives for private
rights holders to work with regulatory agencies. The challenge is to
set up a conservation arrangement that truly advances the survival and
ultimate recovery of the species while limiting the financial burdens
and biological risks imposed on private enterprises.
Guidelines for HCP Reform
Nearly 250 HCPs are now in operation with another batch of similar
size in gestation. There can be no clearer guide to what is working and
what is not in HCPs than a critical, empirical review of the
performance of these plans against the goals of the national endangered
species program. This paper synthesizes the several empirically based
performance reviews that have been conducted by academic researchers,
conservationists and practicing conservation biologists. It also
reflects scholarly analyses by a wide range of commentators and the
findings and conclusions of a structured workshop of many of these
performance reviewers. \16\ The objective of this paper is to distill
from these sources the essential factors that explain why the HCP
process has failed to recover vulnerable and depleted species over the
past 15 years and what can be done to improve the performance of this
conservation tool. This evaluation necessarily considers the regulatory
and economic environment in which HCPs operate. \17\
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\16\ The workshop was convened by the Natural Heritage Institute in
San Francisco in June 1998, and included representatives of an eight-
campus study by the American Institute of Biological Science (AIBS) and
the National Center for Ecological Analysis and Synthesis (NCEAS),
several of the most prominent conservation biologists that have been
involved in crafting HCPs, and the following conservation organizations
and university faculties:
Defenders of Wildlife, University of California at Santa Barbara
Environmental Defense Fund, University of Denver
Lewis and Clark College, University of Michigan
National Wildlife Federation, University of Tennessee
The Nature Conservancy, University of Washington
Pacific Rivers Council, Western Ancient Forest Campaign,
University of California at Berkeley
The workshop findings and recommendations reflected herein
subsequently received the peer review and concurrence of Dr. Gary Meffe
of the Journal of Conservation Biology and Dr. Reed Noss of the
Conservation Biology Institute. Natural Heritage Institute. A Summary
of Key Findings and Conclusions of the Participants of the Workshop--
Optimizing Habitat Conservation Planning for Non-Federal Lands and
Waters: Harvesting Performance Reviews to Chart a Course for
Improvement 13 (June 1998) (hereinafter cited as ``Workshop Findings &
Conclusions'').
\17\ Admittedly, the resulting portrait of how to improve habitat
conservation planning is somewhat idealized in that it is unalloyed by
the practical realities that drive the process from the viewpoint of
the actual negotiators--the Services, HCP applicants and, to a lesser
extent, units of local government that have been involved. These
perspectives are also valid and important.
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The performance reviews inspire confidence that we can do better in
the future than in the past--if only we are willing to learn as we go.
That requires grafting onto the ESA the emerging principals of
conservation biology, which have matured greatly since it was enacted a
quarter century ago. Simultaneously, we must find a way to satisfy the
legitimate expectations of the nonFederal property interests that they
will not be required to shoulder the entire expense of protecting
depleted species on the grounds that wildlife conservation benefits the
public of today and tomorrow.
This paper will present the major conclusions from these
performance reviews and the recommendations for reform, which emerge
from them.
recommendations for improvement: hcps must be developed within the
context of landscape-scale conservation strategies
The Choice of Planning Scales
Habitat conservation plans are the vehicle through which developers
of non-Federal lands and waters obtain permits from the Federal
Government for activities that may adversely impact endangered species
habitat. As such, individual property owners have historically prepared
these plans to cover activities within their parcel that will effect
one or more listed species found thereon. The sizes of these land or
water right-specific HCPs are extraordinarily diverse, spanning six
orders of magnitude. The smallest approved plan protects the Florida
scrub jay on just 0.4 acres. The largest plan to date covers over 1.6
million acres of forest managed by the Washington Department of Natural
Resources. Despite this extraordinary range of sizes, most HCPs are
relatively small. The medium size is less than 24 acres, and 74 percent
of HCPs cover fewer than 240 acres. \18\ The Services encourage a
planning area that is as comprehensive as is feasible and that
encompasses the applicant's entire area of activity. The Services also
seek HCP boundaries that are exact enough to avoid future uncertainty
about where permittees have responsibility under the HCP. \19\ In
general, the Services find that bigger is better. Neither the ESA nor
its regulations limit the size of an HCP.
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\18\ The duration of HCPs is also diverse. The length of time that
an HCP is to be maintained is tied to the duration of the ITP for which
the plan was developed. Plan duration ranges from 7 months for a plan
in Travis County, Texas, to 100 years for an HCP implemented by Murray
Pacific Company in Washington. Two plans, developed for private
properties in Texas, are to be maintained in perpetuity. Excluding
those two plans, the median duration of HCPs is 10 years, and 60
percent of HCPs will be maintained for 20 or fewer years. Over time,
the duration of approved HCPs has exhibited no significant directional
trend. NCEAS, supra note 12, pp. 14-15.
\19\ U.S. Fish & Wildlife Service and National Marine Fisheries
Service. Endangered Species: Habitat Conservation Planning Handbook 3-
11 (1996) (hereinafter cited as ``FWS & NMFS'').
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Although the fundamental purpose of biodiversity conservation is
the protection of ecosystems, the ESA's regulatory mechanisms are
species-specific and are only triggered by the listing of individual
species. \20\ Conservation biologists argue that the single-species
focus of the [ESA] has not been especially successful in protecting
functioning ecosystems and is imprudent because species do not exist
independently from one another and the broader landscape context. \21\
Because the needs of species are ``specific'', single-species plans for
the same area can conflict if not closely coordinated. The extent to
which HCPs take into account multiple species and the ecosystem as a
whole is important to their ultimate success. \22\
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\20\ For example, the obligations of Federal agencies under
Sections 7(a)(1) and 7(a)(2) of the ESA are not triggered until a
species is listed; similarly, the ban on takings in Section 9 does not
apply until a species is listed. Section 10 fails to encourage
development of HCPs that protect multiple species unless all species
under a plan are listed. Thornton, Robert D. Searching for consensus
and predictability: Habitat conservation planning under the Endangered
Species Act of 1973. 21 Environmental Law 605, 642 (1991).
\21\ Noss, et al., supra note 13, pg. 127.
\22\ Ibid.
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Only recently has multi-parcel, multi-species habitat conservation
planning emerged. Units of local government generally conduct these
plans, covering a community of both currently listed and potentially
listable species. Multi-species, multi-parcel conservation planning is
a promising evolutionary step, for reasons discussed in subsequent
sections of this paper. Yet, the Services are concerned that attempts
to cover many land uses or species in a single plan can be frustrated
by gaps in biological information and lack of consensus among HCP
participants. \23\ Indeed, the empirical reviews do not support the
notion that larger plans are better plans. Neither the HCPs covering
very large areas nor those covering very small areas perform best. \24\
Instead, the intermediate-sized planning areas have produced the best
plans. It seems that planning at a small scale is impaired by limited
resources to conduct careful analyses of the impacts of development
(particularly cumulative impacts) or of conservation alternatives.
Conversely, very large HCPs also appear to result in relatively poor
analyses, probably due to the difficulty of forecasting impacts and
planning mitigation and monitoring over very large areas.
---------------------------------------------------------------------------
\23\ Id.
\24\ NCEAS, supra note 12, pg. 29.
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The Preference for Bio-Regional Planning
Consensus is emerging among conservation scientists and
commentators that the optimal planning unit for habitat conservation is
not the individual land holding or water diversion, and the optimal
focus is not individual listed species. Rather, there are benefits for
both ecosystems and property rights holders when planning is conducted
at a landscape scale, where habitat conservation strategies are
developed for a ``bioregion'' covering entire ecosystems and their
communities of species. \25\ Furthermore, there is indirect evidence
that multi-species plans are scientifically superior to single-species
plans, especially with respect to mitigation and monitoring. \26\
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\25\ All HCPs affect multiple species, whether they result in
incidental take permits for multiple species or not. Defenders of
Wildlife, supra note 7, pg. 20.
\26\ NCEAS, supra note 12, pp. 36-38.
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At the landscape scale of planning, conservation measures for
ecosystems and their species are more likely to be effective and the
conservation responsibilities are more likely to be properly allocated
among both public and private property rights holders. Currently the
burden of protecting biodiversity on nonFederal lands and waters falls
on the owners of the remaining undeveloped habitat, even though the
species at issue became endangered due to consumption decisions made by
society as a whole. \27\ Landscape-scale planning provides a mechanism
for the public to shoulder some of the burden of conservation. Thus,
rights holders and protected species can both benefit from landscape-
scale planning.
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\27\ Thornton, Robert D. The No Surprises Policy is Essential to
Attract Private Dollars for the Protection of Biodiversity. Endangered
Species Update: Habitat Conservation Planning 65 University of Michigan
(July/Aug. 1997).
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Rescaling conservation planning and permitting in this manner can
address many of the perceived problems with HCPs. Potential advantages
of landscape-scale, multi-party HCPs include the following points
identified by experts in the June 1998 workshop:
(1) Providing a biological basis for allocating responsibility
among rights holders. Landscape scale planning can specify the overall
conservation effort that is needed to protect communities of species,
thereby providing a basis for determining what share of the burden an
individual property owner should bear in an HCP. Currently, the ESA
affords no mechanism for allocating the conservation burden between
multiple private landowners or between private rights holders and
public lands. Instead, the burden is allocated in a piecemeal fashion
through the approval of HCPs, Section 7 consultations, and public land
management planning and permitting. In theory, those who get their
approvals earliest get the best deal, with larger burdens reserved for
latecomers.
(2) Fostering species recovery. At the landscape scale, it is
possible to calibrate habitat conservation planning to the objective of
recovering the listed species and preventing harm to other vulnerable
species. The only biologically defensible aiming point for habitat
conservation planning is a net improvement in the prospects for
survival for listed species and prevention of further declines in
unlisted species. This objective is harder to advance at the level of
landholding-specific HCPs, which tend to aim for mitigation or, at
best, avoidance of impacts on listed species.
(3) Promoting economies of scale. Since good science is expensive,
gathering and interpreting the necessary data can be an onerous burden
for individual rights holders seeking development permits. Rescaling
shifts an appreciable degree of this burden from individual property
owners applying for incidental take permits to the public agencies and
the broader constellation of rights holders that have interests and
responsibilities in the eco-region.
(4) Facilitating adaptive management. Because adaptive management
requires that some part of the development plan covered by an HCP
remain contingent, it is more feasible to engage in adaptive management
at the landscape scale. While adaptive management is feasible for
smaller plans as well, it is facilitated and made more effective with a
larger planning scale.
(5) Strengthening public participation. The degree and quality of
public participation is generally higher with a broader scale of
planning that includes multiple parties. This correlation is especially
evident if a unit of local government mediates the HCP process by
applying for the Federal permit and then issuing sub-permits to
individual landholders. Such local agencies routinely include the
public in similar land use planning processes. By contrast, case
studies show that public participation has not been superior in cases
where a single landowner prepares a large landscape-scale HCP, as is
exemplified by many HCPs developed by timber companies.
The idea that landholding-specific or water right-specific
conservation requirements should be determined by reference to broader
conservation objectives is hardly radical. It is rather analogous to
the way permits are issued for new major emitting facilities within
airsheds that are already violating national ambient air quality
standards. A zero growth policy is unacceptable, yet growth cannot be
allowed to occur at the expense of exacerbating pollution levels that
are already harmful to human health. The solution under the Clean Air
Act is to condition permits for such new facilities upon achieving a
net reduction in emissions of the subject pollutants. Similarly, in the
water pollution field, discharger-specific effluent allowances are
determined by reference to basin-wide water quality criteria. In the
biodiversity arena, new incursions on critical habitat should be
subject to a similar condition of achieving a net contribution to the
landscape scale objective of recovery of the imperiled species.
Individual HCPs should be designed to contribute to the achievement
of a bioregional conservation strategy that aims for long-term,
sustainable conservation. Reaching this goal may entail more rigorous
activities than simply avoiding or minimizing impacts on the subject
landholding. In some cases, offsite mitigation may be required to
reduce the threat to the species, which can often best be accomplished
by requiring contributions to a mitigation fund as a condition of
permit issuance. \28\
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\28\ Mitigation funds can be used to purchase the highest quality
habitats to prevent their development. A development exaction of this
sort is often best administered by local agencies of government that
are charged with regional land use planning, an additional reason to
utilize local jurisdictions as the vehicle for bioregional habitat
conservation planning. However, since bio-regions often cross local
(e.g., county and even state) jurisdictional boundaries, coordination
by a higher-level jurisdiction may be necessary.
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If landscape-scale planning offers superior prospects for species
conservation and, ultimately recovery, then it is necessary to ask what
kinds of incentives, inducements and cost-sharing arrangements will
encourage the development of HCPs at this level. Part of the answer
lies in reallocating a portion of the habitat conservation burden that
now falls to private rights holders onto the Federal land and water
managers. Under a landscape-scale approach to conservation, Federal
agencies that manage public lands and waters (and their commodity
users) may shoulder a larger share of the conservation burden and may
be held to the higher standard of recovery of the protected species. If
private lands are managed to the ESA's ``jeopardy'' standard, \29\
there is no margin of safety left for vulnerable species. It is
especially critical that Federal resource managers undertake a ``fair
share'' of the conservation burden in areas within a matrix of Federal
and private lands, for example, lands included in the checkerboard
pattern of private and Federal land found in many western states.
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\29\ The jeopardy standard means avoiding actions that could
directly or indirectly reduce the likelihood that a species will
survive and recover in the wild. 50 C.F.R. Sec. 404.02.
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Recovery Plans as Vehicles for Bio-Regional Planning
One potential vehicle for landscape scale planning could be the
recovery plans that the Services are required to develop for listed
species. Recovery plans can provide much-needed scientific background
on a species as well as an ecosystemic context for the activities
proposed under a landholding-specific HCP. \30\ Studies show that, when
recovery plans exist, HCPs do rely on them extensively. In several
cases, HCPs have borrowed language and specific mitigation techniques
directly from recovery plans. \31\ However, there are several problems
with using recovery plans as a basis for the development of HCPs:
---------------------------------------------------------------------------
\30\ NCEAS, supra note 12, pg. 33 citing FWS & NMFS, supra note 19.
\31\ NCEAS, supra note 12, pp. 35-36.
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Recovery plans currently lag years behind the listing of a
species. The Services have completed recovery plans for only 40 percent
of listed species. \32\ And, the Services are not authorized to
disapprove a proposed HCP because a recovery plan for the covered
species is in not place. \33\
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\32\ As of January, 1997, FWS was responsible for 1,071
domestically listed species, but only 644 of those species had approved
recovery plans. The Services are currently authorizing HCPs for
numerous species without recovery plans such as the marbled murrelet,
Mexican spotted owl, western snowy plover, giant kangaroo rat, and
razorback sucker. None of these species has a completed recovery plan
even though final recovery plans would give guidance to the Services in
reviewing permits for approval. Sher, Victor M, and Heather L. Weiner.
Why HCPs Must Not Undermine Recovery. Endangered Species Update:
Habitat Conservation Planning. 67 University of Michigan (July/August
1997).
\33\ One alternative is to give conditional approvals to HCPs until
a recovery plan is adopted. This strategy could work without undue risk
to the permittee under an adaptive management strategy (described later
in this document) so long as the potential costs of plan revision are
indemnified under the insurance scheme (described in the section on
regulatory guarantees and assurances).
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Historically, recovery plans have been of poor quality and
often are not biologically defensible. Hence, even when recovery plans
have been developed, they generally have not resulted in more adequate
HCPs. \34\
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\34\ In fact, the NCEAS study showed evidence that a species was
more likely to have adequate HCPs developed for its conservation if it
did not have a recovery plan. The study found that, where a recovery
plan existed for a covered species, subsequent HCPs were generally of
poorer quality in their analysis of the current status of the species
and in monitoring plans. NCEAS, supra note 12, pp. 35-36.
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Recovery plans have often inappropriately subordinated the
biological objective to economic considerations. Economics is important
in apportioning the conservation burdens among the public and private
landowners but must not be allowed to dictate the biological requisites
of the recovery plan.
Recovery plans are not intended to be binding on or
enforceable against the non-Federal lands that are encompassed in the
range of a species. Efforts to make them binding or enforceable would
be viewed in the political sphere as tantamount to land use planning by
the Federal Government, which is historically a state and local
prerogative. Still, recovery plans can provide an objective basis for
determining whether an HCP represents progress toward species recovery.
While a negative determination may not preclude approval of the HCP,
that would allow the Service to know what supplemental efforts will be
needed within the planning area--perhaps at Federal expense--to achieve
the recovery goal.
Recovery is a species-based concept and, thus, recovery
plans do not necessarily improve the health of the ecosystem as a
whole, or its processes or functions. However, there is no obvious
reason why recovery plans could not also be written as bioregional,
multi-species conservation strategies. Indeed, such an approach would
further the goals of the ESA to preserve the ecosystems upon which
threatened and endangered species depend. \35\
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\35\ If the focus must remain on individual species, Thornton
recommends giving the Services discretion to formulate recovery plans
around species that serve particular functions in an ecosystem such as
keystone species whose roles in ecosystems are so important that their
loss could precipitate an avalanche of extinctions, or indicator
species which should be monitored to indicate the condition of other
species in the same habitat. Thornton, supra note 20, pg. 642.
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Natural Communities Conservation Plans as Vehicles for Bio-Regional
Planning
The land use planning functions of state and local governments can
also be harnessed to undertake the type of bio-regional conservation
planning that could improve landholding-specific HCPs. Since these
entities already play the predominant role in local land use planning,
economies of scale and consistency of conservation objectives can be
achieved by using them for HCP development. In the model that is
emerging, units of state and local government prepare regional
conservation plans, submit them to the Services for approval as master
HCPs under a special rule under Sec. 4(d) of the ESA and administer
take allowances to individual property owners through sub-permits. An
outstanding example of such a bio-regional planning program is the
California Natural Communities Conservation Program (NCCP). \36\ The
NCCP is a regional, ecosystem-wide, multi-species program that
encourages landowners to voluntarily plan for habitat protection before
species are listed. A typical plan might cover a mix of listed and
unlisted but declining species and their shared habitats, while still
accommodating development outside the areas set aside as preserves. A
particular virtue of NCCPs is their potential to address the
conservation requirements of unlisted species before they decline to a
level requiring ESA protection. Preventative strategies will invariably
provide more options for habitat protection than reactive measures that
become necessary when the decline of a species reaches a crisis and can
halt and reverse the trend toward extinction. \37\ Therefore,
community-level HCPs--as opposed to species-based prescriptions--
benefit species at all levels of abundance, thereby addressing
management needs most comprehensively. \38\ Also, NCCPs can protect
habitat currently unoccupied by listed species but important for its
survival. In southern California, for instance, species that depend on
the coastal sage scrub for breeding may also utilize neighboring
habitats for sustenance. It is often difficult to protect this kind of
secondary habitat under the ESA.
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\36\ California encourages regional/ecosystem-based conservation
planning since its 1991 adoption of the Natural Community Conservation
Planning (NCCP) Act. Silver, Dan. Natural Community Conservation
Planning: 1997 Interim Report. 14 Endangered Species Update: Habitat
Conservation Planning 22. University of Michigan (July/August 1997).
\37\ Bosselman, Fred P. The Statutory and Constitutional Mandate
for a No Surprises Policy. 24 Ecology Law Quarterly 707, 711 (1997).
\38\ The Services encourage NCCP-type plans because they:
Avoid the huge backlog created by species-by-species management;
(1) Save money and better protect species by getting at what is
often the root cause of their decline--loss of habitat;
(2) Reduce the need for last-minute ``emergency room'' measures;
(3) Prevent economic ``train wrecks'' by involving landowners in
long-term planning rather than last-ditch efforts at preservation.
(4) Allow for the use of ``good science'' since ecosystem
management would begin well before the species are on the verge of
extinction;
(5) Maximize flexibility and available options in developing
mitigation programs;
(6) Reduce the economic and logistic burden of HCPs on individual
landowners by distributing their impacts;
(7) Reduce uncoordinated decisionmaking, which can result in
incremental habitat loss and inefficient project review;
(8) Provide the permittee with long-term planning assurances and
increase the number of species for which such assurances can be given;
(9) Bring a broad range of activities under the permit's legal
protection; and
(10) Reduce the regulatory burdens of ESA compliance for all
affected participants.
FWS & NMFS, supra note 19, pp. 1-14, 1-15. Welner, Jon. Natural
communities conservation planning: An ecosystem approach to protecting
endangered species. 47 Stanford Law Review 319, 338 (1995). Silver,
supra note 36, pg. 22.
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The NCCP is meant to be a voluntary program, but the local
landowners did not view it as such in the case of the California
gnatcatcher. With the 1993 listing of the gnatcatcher, Secretary of
State Bruce Babbitt proposed a ``special rule'' under Section 4(d) of
the ESA that would exempt landowners participating in the state NCCP
program from the ESA's prohibition on the incidental take of a
threatened species. \39\ The special rule expanded the bounds of the
ESA's incidental take exemption to all areas covered by a NCCP plan.
The agency thereby had a means to encourage participation in the NCCP.
At the same time, the rule retained the ESA's prohibition against take
for developers who elected not to participate. Those landowners had to
negotiate their own HCP with the Fish and Wildlife Service, aware that
the agency did not intend to approve any HCPs that did not conform to
the NCCP guidelines. \40\
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\39\ Under the special rule, local communities in the Coastal Sage
Scrub Planning Area are invited to develop subregional NCCP plans. The
plans must conform to detailed Process and Conservation Guidelines
issued by CDFG in 1993. The Guidelines provide that the Planning Area
will be divided into ten to 15 subregions; local communities will be
allowed to define the size and shape of their own subregions, subject
to USFW and CDFG approval. Each subregion must designate a local ``lead
agency'' to coordinate its planning effort. Before taking effect,
subregional plans must be approved by both the CDFG and USFW. Welner,
supra note 38, pp. 343-344. Special Rule Concerning Take of the
Threatened Coastal California Gnatcatcher, 58 Fed. Reg. 65,088 (1993).
\40\ Welner, supra note 38, pp. 344-345.
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These dynamics help explain why the NCCP process was, in general,
favorably received in Southern California. For conservationists,
comprehensive state planning based upon Federal ESA standards appeared
to offer the best hope for rescuing devastated coastal sage ecosystems.
Developers valued the regulatory assurances they were provided in the
event of future listings. Local governments were pleased to retain
autonomy over land use decisions in the face of Federal listings and
the prerogative to strike the appropriate balance between development
and open space in their communities. The state and Federal wildlife
agencies saw the NCCP process as a means to transcend the limitations
on project-by-project mitigation. Although each stakeholder perceived
the benefits of participating in the NCCP process differently, enough
mutual benefits and common ground were found to advance a politically
difficult process. \41\
---------------------------------------------------------------------------
\41\ Silver, supra note 36, pg. 22.
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The NCCP process is specifically authorized in California by an act
of the legislature. \42\ This type of vehicle could be propagated in
other jurisdictions to serve as a nationwide vehicle for bioregional
planning either through state-by-state enactments or through Federal
authorization in a reauthorized Endangered Species Act. Through either
avenue, lessons can be drawn from California's early experimentation
with NCCP that could lead to an improved nationwide model. One
thoughtful commentator \43\ provides the following list:
---------------------------------------------------------------------------
\42\ Natural Communities Conservation Planning Act, Cal. Fish and
Game Code Sec. 2800 et seq. (1991).
\43\ Silver, supra note 36, pp. 24-25.
---------------------------------------------------------------------------
(1) Listing plays an essential role. Standing alone, the NCCP
provides no protection for ecosystems or species; it merely authorizes
a collaborative, voluntary process to provide some protection through
agreements among agencies, landowners, and local governments. In order
to bring developers to the table, an incentive, such as the threat of
listing under the ESA, is indispensable. The listing of the gnatcatcher
provided the motive force for the NCCP plans.
(2) Public participation is useful, as evidenced by the numerous
stakeholder groups in the NCCP process that have made many valuable
contributions.
(3) Partnerships with local government are powerful. The key
advantage of an NCCP approach over conventional HCPs is that local
governments are an active partner. Local land use laws can sometimes
accomplish what state and Federal agencies alone can not achieve.
(4) Assurances are part of the equation. The reward to landowners
for engaging in the NCCP process is the regulatory assurance that, in
the event a species covered by the plan subsequently becomes listed or
declines, additional mitigation will not be required of that landowner.
(5) There is a ``spill-over'' into better planning in general. The
NCCP efforts have allowed local governments to understand the many
benefits of natural open space preserves for their communities.
(6) Scientific accountability must be sufficient. Given the
program's extraordinary complexity and its susceptibility to political
and economic pressure, its scientific bases must be beyond debate. Yet,
in the NCCP experiment, the initial scientific panel was dissolved
after it had prepared a set of conservation guidelines, and the NCCP
statute makes no provision for independent scientific consultation or
review. While it should not be inferred that the plans are unsound as a
result, neither are they fully credible. \44\
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\44\ A particular challenge in the use of scientific accountability
has been the imperative to protect large blocks of habitat quickly,
before they disappear, even in the absence of adequate scientific data
on which to base a conservation strategy. This has forced the use of
practical reserve design methodologies that seek to protect a suite of
species through conservation measures designed for ``umbrella''
species. Such methodologies need more study and validation. Noss, et
al., supra note 13, pp. 137-142.
---------------------------------------------------------------------------
(7) Recovery objectives are paramount. Appropriate standards are a
critical unresolved issue. Since these plans are de facto recovery
plans, they must ensure healthy populations across species' ranges. The
failure to explicitly address recovery in the NCCP is a glaring
deficiency.
(8) Local land use factors limit program effectiveness. Specific
deficiencies in plans are often due to zoning constraints or project
authorizations issued by local government. These need to be reconciled
with the conservation objectives and strategies pursued by the NCCP
program.
(9) A secure source of funding for land acquisition and management
is necessary. Usually, innovative sources will need to be explored,
such as loan funds, funds from the Land and Water Conservation Fund,
mitigation banks, or dedicating that portion of the local property tax
that corresponds to the marginal increase in the value of adjacent real
estate resulting from the open space that is set aside. \45\
---------------------------------------------------------------------------
\45\ Natural Resources Defense Council. Leap of Faith: Southern
California's Experiment in Natural Community Conservation Planning 33-
35 (May 1997).
---------------------------------------------------------------------------
A variation on the NCCP theme is arising in some states. So called
``programmatic HCPs'' are a relatively new concept, now primarily
utilized by state and county governments. \46\ They differ from NCCP-
type or habitat-based HCPs in that their boundaries are based on
jurisdictional rather than ecological parameters. For example, the US
Fish and Wildlife Service and the State of Georgia have developed a
programmatic ``state-wide'' HCP for the red-cockaded woodpecker, and
Texas is currently embarking on a similar project for the same species.
\47\ The programmatic HCP allows numerous landowners to participate
through ``Certificates of Inclusion'' or ``Participation
Certificates,'' which convey take authorizations. The Services support
such plans on grounds that a programmatic HCP can be used to address a
group of actions as a whole, rather than one action at a time in
separate HCPs. \48\
---------------------------------------------------------------------------
\46\ FWS & NMFS, supra note 19, pg. 3-39.
\47\ Bonnie, Robert. Strategies for Conservation of the Endangered
Red-cockaded Woodpecker on Private Lands. Endangered Species Update:
Habitat Conservation Planning 45 University of Michigan (July/Aug.
1997).
\48\ FWS & NMFS, supra note 19, pg. 3-39.
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And yet, the Services acknowledge that programmatic HCPs may pose
problems. \49\ First, biologists eschew political boundaries in favor
of using watersheds or discrete ecosystems to delineate conservation
planning areas. Second, applicants may lack sufficient information to
determine and evaluate impacts when the specific number and scope of
development actions is still undetermined. Such HCPs are more likely to
succeed where the activities are well defined, similar in nature, and
occur within a discrete geographical area and timeframe. \50\ Despite
their shortcomings, programmatic HCPs are likely to increase during the
next era of biodiversity conservation.
---------------------------------------------------------------------------
\49\ Ibid.
\50\ Id.
---------------------------------------------------------------------------
Promulgation of Programmatic Conservation Standards as Vehicles for
Bio-Regional Planning
A third potential vehicle for landscape-scale conservation planning
is the promulgation of programmatic standards or guidelines for multi-
species conservation by Federal land and water managers. For example,
the recent adoption by NMFS of programmatic guidelines for logging on
anadromous fish-bearing streams in the Pacific Northwest may prove to
be a useful model in other contexts. Such programmatic guidelines can
apply standards for riparian buffers and acceptable levels of
sedimentation to entire watersheds or other ecologically significant
planning units. Similarly, the Aquatic Conservation Strategy component
of the President's Forest Plan provides a multi-layered planning
approach intended to result in ecosystem-wide forest management.
Bio-Regional Conservation Planning Demands a Larger Governmental Role
Whatever the vehicle, it is clear that landscape scale habitat
conservation planning will require either the Services, or state and
local units of government in the case of NCCP-type plans, to play a
more proactive role in marshalling the necessary biological information
and developing conservation strategies that cover multiple parcels,
both private and public. This will entail a sharp departure from their
traditional roles and will require a substantial increase in resources
both financial and professional.
The Services' role in HCP development is not well defined, but
Congress apparently intended the Services to do more than just exercise
regulatory oversight by also providing technical assistance to
applicants. \51\ The HCP Handbook states that large-scale HCPs should
be developed jointly by the applicant, the Services, the private
sector, and local, state, and Federal agencies, with the Services
acting as technical advisors. In addition, the Handbook recommends that
the Services be actively involved during HCP development in advising on
mitigation measures, monitoring protocols and reserve designs;
providing timely review of draft documents; helping find solutions to
contentious issues; and generally assisting in HCP development. \52\
---------------------------------------------------------------------------
\51\ Id. pg. 3-1 citing H.R. Conf. Rep. No. 835, 97th Cong., 2d
Sess. 29, 1982 U.S.C.C.A.N. 2807.
\52\ Id. pg. 6-24.
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Notwithstanding these expectations, the Services simply do not have
the resources to provide the degree of scientific and technical
guidance that Congress intended in the ESA's 1982 amendments. \53\ In
practice, HCPs are often negotiated with only minimal guidance as to
content or biological objectives. \54\ This ``hands off'' attitude
might also be due in part to the Services' policy of promoting plan
flexibility and innovation. In any case, the Services have not
translated the expectations of the Act into technical performance
standards to which an HCP can be designed. \55\
---------------------------------------------------------------------------
\53\ NCEAS, supra note 12, pg. 48.
\54\ For example, the Weyerhaeuser Willamette HCP applicants
apparently felt the Services' guidance was vague regarding biological
standards. The Riverside County HCP applicants were also apparently
unclear regarding biological standards. Aengst, Peter, et al. Balancing
Public Trust and Private Interest: An Investigation of Public
Participation in Habitat Conservation Planning. University of Michigan
(1998) (hereinafter cited as ``Univ. of Michigan'').
\55\ Applicants find the ESA's legal standards such as ``minimize
and mitigate'' take to the ``maximum extent practicable'', and
authorized taking that will not ``appreciably reduce the likelihood of
survival and recovery of the species in the wild'' too nebulous. Ibid.
pg. 8-6.
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This lack of guidance often results in HCP applicants simply
following precedents established in earlier HCPs. Consequently, HCPs
that were developed before principles of conservation biology were
properly applied have nonetheless set a de facto standard of quality.
The importance of precedent in light of unclear agency guidelines is
illustrated by a comment from a participant in the development of the
Clark County HCP: ``[The preparers of HCPs that are] still in the early
stages are going to look out there for the weakest [HCP to use] as an
example. We should be real concerned over setting precedents for the
minimum standard.'' \56\
---------------------------------------------------------------------------
\56\ Id. pg. 7-8.
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calibrate habitat conservation planning to biologically defensible
goals
The Recovery Standard
There is an emerging consensus among conservation scientists that
the only defensible biological goal for habitat conservation is the
recovery of the species. Indeed, this precept is too obvious for
serious debate unless the ESA and the HCP processes are to be taken as
merely a set of procedures for slowing the process of extinction. Thus,
species recovery must be taken as the ultimate goal of the ESA and
contribution to this goal is the yardstick by which the habitat
conservation planning process will ultimately be measured by the
discerning public. HCPs will be viewed as contributing to the
biodiversity problem rather than the solution unless they are designed
to advance a restoration strategy, that is, unless they confer a net
survival benefit to the species. \57\ Otherwise, the Services are
running a hospital in which the patients will never be taken off life
support.
---------------------------------------------------------------------------
\57\ On heavily impaired lands, even a net benefit standard may not
be enough to recover the species or prevent local extirpation. In these
circumstances, the Federal Government's role in bioregional planning
may need to include purchasing and restoring such lands. HCPs should
not be counted on to solve all endangered species/private lands
conflicts.
---------------------------------------------------------------------------
What constitutes biological recovery is far from straightforward,
however, and a determination of whether a given HCP meets that standard
is difficult for a number of reasons. As noted previously, many HCPs
are approved before the Services have completed draft recovery plans
for the species. Recovery planning is impeded by agency budget
constraints and by the competing demands for agency resources to
process the growing numbers of HCPs and designate ``critical habitat''.
Where recovery plans do exist, they are often obsolete for current
planning. \58\ And, recovery planning itself is a highly politicized
process wherein biological factors can be compromised by economic and
social considerations. \59\
---------------------------------------------------------------------------
\58\ Sher and Weiner, supra note 32, pg. 68.
\59\ Defenders of Wildlife, supra note 7, pg. 54. Sher and Weiner
point out that funds for recovery plans are often earmarked by Congress
for high-profile species, leaving less charismatic species to decline.
In addition, the Services are chronically constrained by inadequate
budgets, limited staff, and political pressure. Sher and Weiner, supra
note 32, pg. 67.
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Notwithstanding these difficulties, the difference between survival
and recovery can be understood as distinct levels of risk for the
protected species. At present, the level of acceptable risk is left to
the judgment of the applicants and the Services and is seldom made
explicit. Often, the data to quantify these risks are not sufficient.
Qualitative analysis of risk factors is possible, however. This type of
risk analysis is familiar terrain in setting air and water quality
criteria, for example. Under qualitative assessment, the risk to
species can be identified and addressed by dealing with the factors
that have the largest effect on survivability. Independent scientific
peer review would be very beneficial in making such qualitative
assessments.
The objectives of ecosystem conservation and recovery of species
are explicit in the ESA, \60\ but the means to achieve these goals are
not made clear. Indeed, the approval standard for HCPs is not
necessarily consistent with the statutory recovery goal. \61\ Plans may
be approved under the Section 10 criteria, as long they do not
appreciably reduce the chance of survival and recovery of the covered
species. This suggests that some degradation of habitat and loss of
species is acceptable. Certainly, this criterion does not impose on
permittees an obligation to improve the survival prospects for the
listed species. \62\ Thus, HCPs may and usually do degrade the status
quo.
---------------------------------------------------------------------------
\60\ 16 U.S.C. Sec. 1531(b), 1532(3).
\61\ Much of the criticism lodged against the HCP process stems
from the Services' treatment of HCPs as a permitting process, rather
than a conservation strategy. Noss, et al., supra note 13, pg. 111.
\62\ According to conservationist Daniel Hall, the Services' policy
only requires that an HCP not lead to the extinction of a listed
species, rather than contributing to recovery. Hall, Daniel A. Using
Habitat Conservation Plans to Implement the Endangered Species Act in
Pacific Coast Forests: Common Problems and Promising Precedents, 27
Environmental Law 803, 809 (1997). While the HCP must not ``appreciably
reduce'' the likelihood of the recovery of the species in the wild, the
Services' HCP handbook states that this does not explicitly require an
HCP to recover listed species, or contribute to their recovery
objectives outlined in a recovery plan. FWS & NMFS, supra note 19, pg.
3-20.
---------------------------------------------------------------------------
The approval of HCPs under this standard can only be squared with
the ultimate objective of recovery and delisting under the assumption
that some other custodian of actual or potential habitat will undertake
countervailing measures. That is a heroic assumption where the Federal
lands and waters are also managed to a ``non-jeopardy'' standard, and
where funds to purchase, preserve and restore high quality habitat are
neither a precondition to the approval of HCPs nor generally available.
The contrast between the statutory approval standard and a recovery
standard is most apparent when an HCP covers most or all of the
remaining habitat of a listed species. If the majority of a species'
range occurs on nonFederal land, recovery cannot occur unless the HCP
contributes to that objective. \63\ This mismatch between biological
objectives and statutory requirements is a serious problem for both
developers and conservationists because it raises the stakes in the
negotiation of HCPs and creates political fault lines that leave both
development and conservation interests insecure.
---------------------------------------------------------------------------
\63\ Defenders of Wildlife, supra note 7, pg. 52.
---------------------------------------------------------------------------
Congress has so far shown reluctance to amend the ESA to
recalibrate the HCP approval criteria to require a net benefit to
listed species. Yet, nothing less will square HCPs with the explicit
objective of the ESA or stem the impending biodiversity crisis. It may
be possible to resolve this political impasse if the issue is restated
so that it is not about biodiversity requisites but about how the
financial burdens of meeting them will be allocated. The costs of
avoidance, minimization and mitigation of adverse impacts on habitat
are as much as the developers of non-Federal lands and waters are
willing to shoulder to meet national biodiversity conservation goals,
and more to the point as much as the political process has been willing
to impose. The measures necessary to bridge the gap between survival
and recovery, such as the purchase of habitat preserves and the
rehabilitation of restorable habitats on non-Federal lands, can be
defrayed by the public instead of land and water rightsholders if both
developers and conservationists join in making that arrangement
politically feasible.
The remaining issue is whether compensated conservation measures
should be voluntary on the part of the private rights holder, as some
recent ESA reauthorization bills would provide, \64\ or mandatory at
the behest of the Services. This issue is politically controversial
because allowing the Services to mandate habitat conservation measures
which bear no proportionate nexus to a development project, such as
creating preserves, even on a compensated basis, is tantamount to
conferring eminent domain authority on the Services. As discussed
below, one solution might be to reward private rights holders who
accept mandatory measures deemed necessary to achieve a recovery
standard of performance with a higher level of regulatory assurances in
their HCPs.
---------------------------------------------------------------------------
\64\ One example is the Chafee-Kempthorne bill, S. 1181, introduced
in the 105th Congress.
---------------------------------------------------------------------------
Incentives to Recover Species
Getting the incentives right is essential to making the HCP program
work. Enforcement of the ``take'' prohibition under Section 9 creates
an incentive for private rights holders to seek incidental take
permits, for which HCPs are a prerequisite. As the enforcement of the
take prohibition becomes more vigorous, the incentive to develop high-
quality HCPs increases. \65\ However, the practical difficulties in
enforcing the take prohibition limit its value as an incentive. The
Services find enforcement of the take prohibition difficult because
they cannot enter private lands without permission and because they
face budget limitations. For some species, the data are not sufficient
to determine what actions constitute a take (e.g. mussels), while for
other species, the Services do not know where they occur on private
lands. Because the Services have shown reluctance to enforce the take
prohibition, the main incentive for HCP development today is the fear
of citizen suits and the attendant insulation from prosecution that an
HCP can provide. \66\ Under these realities, enforcement of the take
prohibition, though an essential incentive for rights holders to
develop HCPs. cannot substitute for habitat conservation planning.
---------------------------------------------------------------------------
\65\ To be sure, the penalty needs to be sufficient to nullify any
economic benefits of non-compliance; nominal penalties are likely to be
absorbed as a cost of doing business rather than serve as a deterrent
to taking species or destroying habitats. On the other hand, the larger
the potential penalty, the greater the perverse incentive to destroy
habitat before a listing occurs.
\66\ Some commentators confirm that landowners are preparing HCPs
because capital markets insist upon HCPs before they will lend project
development funds. Capital markets place a high value on assurances
that future restrictions will not impede development. This may not
apply to ``commodity'' lands where take detection and enforcement is
problematic.
---------------------------------------------------------------------------
The ESA does not mandate that HCPs confer a net survival benefit on
species, but neither does the Act mandate that the Services issue
guarantees to permittees against further ``take'' restrictions. It
seems likely that the Services can induce HCP proponents to contribute
to recovery of a listed species by correlating their regulatory
assurances to the extent of biological benefit conferred in an HCP. For
instance, plans that contribute to recovery might receive assurances
for a longer term than those that merely avoid jeopardy. Similarly,
plans based on highly adequate data and analyses might be entitled to
more extensive guarantees.
In some cases, shifting a larger share of the costs of conserving a
listed species to the Federal land management agencies would also make
recovery achievable without increasing the burdens on private rights
holders. Yet, at present, the prevention of jeopardy of extinction is
the aiming point for most management decisions on Federal land. This
low standard of management for the public lands should concern the
property rights community as much as the conservation community because
the practical consequence is that a higher burden of species
conservation may be apportioned to the private rights holders if
recovery is to be achieved. \67\
---------------------------------------------------------------------------
\67\ Of course, holding the public lands to a higher standard of
performance in habitat conservation would not be advance recovery in
regions of the country where there is little or no Federal land, or
where existing Federal land is unsuitable to support the species in
question.
---------------------------------------------------------------------------
incorporating independent science and public participation to improve
hcp conservation measures
Many performance reviewers agree that HCPs would be improved if
state-of-the-art, independent biological expertise was utilized and if
meaningful opportunities were afforded local communities and
conservation interests to participate in the development of HCPs. These
two recommendations merge under the premise that the most efficacious
way to advance the public's interest in effective conservation planning
is for HCPs to be based on the best available science.
In a March 1997 letter to the Administration and Congress, a number
of prominent conservation biologists warned that many HCPs ``have been
developed without adequate scientific guidance'' \68\ in the form of
independent peer review. They argued that, as a consequence, these
plans seem to contribute to, rather than alleviate, threats to listed
species. \69\ The scientists recommended that the data, analyses, and
interpretations regarding species status, take, impact, mitigation, and
monitoring should be reviewed to ensure that the scientific foundations
of the plans are sound. \70\
---------------------------------------------------------------------------
\68\ Murphy, Dennis, et al. A Statement on Proposed Private Lands
Initiatives and Reauthorization of the Endangered Species Act from the
Meeting of Scientists at Stanford University (March 31, 1997).
\69\ The scientists were particularly concerned about the
inflexibility in conservation strategies associated with the ``No
Surprises'' assurances, the coverage of species in multiple-species
HCPs, level of protection afforded by safe harbor initiatives and
prelisting agreements, and the lack of independent scientific review of
these agreements. Ibid.
\70\ Ibid.
---------------------------------------------------------------------------
Why There Is A Need for Independent Science in Habitat Conservation
Planning
Independent science would be useful in the HCP process because
neither the consultants retained by the HCP proponent not the Services
staff scientists necessarily have the time, information, or incentive
to represent the state-of-the-art.
In the general process of developing an HCP, biologists in the
proponent's employ submit a plan to the Services, sometimes working
informally with the Services' biologists in the process. \71\
Typically, relatively little detailed information concerning a listed
species' habitat exists at the time of listing, in which case, the
first requisite in preparing an adequate HCP is to gather this
information. \72\ This process can be labor-intensive and expensive,
which is one reason it is easier to prepare landholding-specific HCPs
after a bioregional conservation plan has already been developed. As
HCPs grow in geographic scope, last longer, and cover more species, the
complexity of biological planning grows. These larger HCPs require
Herculean efforts to assemble available data and conduct additional
field surveys, utilize state-of-the-art tools for planning (e.g. GIS),
and make sure that available ecological information and management
techniques are used in the best way possible. \73\
---------------------------------------------------------------------------
\71\ Defenders of Wildlife, supra note 7, pg. 37.
\72\ FWS & NMFS, supra note 19, pg. 3-12.
\73\ Hosack, Dennis A., Laura Hood, and Michael P. Senatore.
Expanding the Participation of Academic Scientists in the HCP Planning
Process. Endangered Species Conservation Planning 60 University of
Michigan (July/August 1997).
---------------------------------------------------------------------------
Performance reviews of HCPs reveal that information pertinent to
the design of HCP conservation strategies is frequently under-
researched by the HCP preparers. Of particular concern are the data
omissions regarding cumulative impacts of development activities on
other parcels or river reaches. \74\ Data omissions on such species
characteristics as amount and quality of feeding, breeding, and
migration habitat were also judged to be a serious problem in the
development of mitigation or minimization efforts. Even when a fair
amount of information is known about a species, it is still difficult
to efficiently incorporate biological data into conservation strategy
decisions because no well-accepted model exists. \75\ Yet, all in all,
the scientific quality of HCPs, especially in terms of mitigation
analysis, has been improving. \76\
---------------------------------------------------------------------------
\74\ For example, in 23 percent of the cases surveyed, information
on cumulative impacts suggested that a different assessment of status
or impacts of take should have been made. NCEAS, supra note 12, pg. 38.
\75\ Thornton, supra note 20, pg. 651.
\76\ The NCEAS researchers looked at the overall quality of HCPs
over time, and found that, from the first HCP (San Bruno Mountain)
until 1996-97, for several stages of planning and for overall quality,
more recent plans are better than older ones. The most biologically
important aspect of this improvement is in mitigation analysis: before
1995, only 10 percent of species covered had ``adequate'' analysis of
mitigation, while from 1995-1997, 60 percent of species were adequately
analyzed. Similar improvements have occurred in all other steps of
analysis, indicating that HCPs--are--as their advocates have claimed
becoming more rigorous scientific documents. Ibid.
---------------------------------------------------------------------------
The Services have the responsibility to ensure that applicants use
adequate scientific information to develop HCPs and the Services
acknowledge that the availability of up-to-date biological information
is crucial to any HCP. Yet, the Handbook leaves data collection
exclusively to the applicant, \77\ as well as the threshold decision
whether the available biological information is adequate to proceed
with planning. Only if the applicant conveys to the agencies that
additional data is needed will the Services make recommendations on
research and collection of biological information. \78\ But, the
applicant's have little motivation to activate the Services in this
way. Their primary concern is for speedy, cost-efficient plan
development and they loath to engage in resource-and time-intensive
studies unless the Services require them for the approval of the HCP.
---------------------------------------------------------------------------
\77\ FWS & NMFS, supra note 19, pg. 3-12.
\78\ Ibid.
---------------------------------------------------------------------------
Conservation biology is the discipline implicated in designing
optimal habitat conservation strategies. Yet, the performance reviews
of HCPs revealed that the statutory command to ``minimize and mitigate
project impacts to the maximum extent practicable'' has often caused
HCP negotiations to be driven by considerations of economic
feasibility. The operative facts have become the applicant's assertions
regarding the effects of mitigation alternatives on profit margins,
rather than the scientists' assertions regarding biological
imperatives. This has led some scientists to criticize HCPs as
discretionary measures based mainly on political and economic
considerations rather than on empirical scientific data regarding the
ecological requirements of a species. \79\ While economics is certainly
relevant to deciding on the allocation of responsibilities among
property holders, both public and private, in achieving the
conservation goals of the plan, economic considerations should not be
allowed to intrude into the choice of conservation strategies.
---------------------------------------------------------------------------
\79\ Bingham, B.B., and B.R. Noon. Mitigation of Habitat ``Take'':
Application to Habitat Conservation Planning. 11 Conservation Biology
127-139 (1997).
---------------------------------------------------------------------------
The Role of Independent Scientists
Apart from the influence of economics and politics, a spectrum of
scientific opinion may exist as to whether the conservation strategy
adopted in an HCP is adequate to meet the biological objectives.
Establishing an independent scientific review may help arbitrate the
differences in professional judgment and help assure that survival and
recovery of the species are attained. Independent review \80\ is also
important to foster public confidence in the process. The concurrence
of the broader scientific community confers an imprimatur of technical
excellence that can garner public acceptance for controversial HCPs.
---------------------------------------------------------------------------
\80\ A qualified independent reviewer is one who:
(1) has little personal stake in the outcome of decisions or
policies in terms of financial gain or loss, career advancement, or
personal or professional relationships;
(2) can perform the review tasks free of intimidation by others
associated with the decision process;
(3) has demonstrated competence in the subject as evidenced by
formal training or experience;
(4) is willing to use her or his scientific expertise to reach
objective conclusions that may be discordant with her or his value
systems or personal biases; and
(5) is willing and able to help identify internal and external
costs and benefits both social and ecological of alternative decisions.
Typically such a person is associated with a recognized scientific
society or is otherwise an established professional in a particular
field.
Workshop Findings & Conclusions, supra note 16, pg. 13.
---------------------------------------------------------------------------
Under current practice, independent scientists may become involved
in the development of HCPs through informal consultation or by serving
on a scientific review panel. However, these opportunities generally
come only after the HCP has been developed or implemented. \81\ In
addition, even this limited involvement often arises only at the behest
of the outside scientist, not as a result of solicited peer review.
Thus, independent scientists are generally involved only and to the
extent they volunteer their services, not as part of routine practice
in the formulation of a habitat conservation plan. \82\
---------------------------------------------------------------------------
\81\ Defenders of Wildlife, supra note 7, pg. 37. Currently few
professional or financial incentives exist for independent scientists
to participate in HCP development, while many disincentives to their
involvement exist. Univ. of Michigan, supra note 54, pg. 10-0.
\82\ The University of Michigan study found that fewer than a third
of applicants submitted all or portions of their HCP for peer-review to
non-applicant and non-agency scientists, and the researchers were
unsuccessful at finding a single HCP that had undergone formal peer
review. Univ. of Michigan, supra note 54, pg. 10-3.
---------------------------------------------------------------------------
Such post hoc peer review of completed plans is not enough.
Defensible science must be integrated from the beginning and at all
phases of the planning process. It is important to get scientists
involved as scientists, providing data and analyses, not just as
reviewers reacting to someone else's data and analyses. The input must
come at the formative stage when first principles of the application of
conservation science are being established for the reserve design or
mitigation strategy. These decisions are made as the HCP is negotiated,
not at the final stage when the Service issues the incidental take
permit. Assessments of completed plans during public commenting periods
come at the least useful stage when the chances for changing elements
of the plan are slim. Late scientific analysis relegates science to the
role of an adversarial interest at the approval stage rather than a
shaping influence at the foundational stage. \83\
---------------------------------------------------------------------------
\83\ Noss et al., supra note 13, pg. 124.
---------------------------------------------------------------------------
Access Barriers for Independent Science
Notwithstanding the pivotal importance of state-of-the-art
biological information, the Services defer to the applicant regarding
admission of others to the HCP negotiation process. In the role of
``gatekeeper'', applicants typically do not wish to involve interested
scientists who are not agency staff or part of the applicant's coterie
of paid consultants. Applicants argue that they spend large sums of
money to hire competent consulting firms and that the Services' reviews
are already excessive. \84\
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\84\ Hosack, et al., supra note 78, pg. 60.
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The Services' deference to the applicants on public participation
reflects their view of the HCP as a permit application over which the
applicant itself should exercise final substantive control. However, an
HCP is for all intents and purposes a negotiated settlement of an
applicant's regulatory liability under the ESA. The plan determines the
terms and conditions under which a discretionary permit will be issued
to engage in otherwise forbidden acts, namely the taking of protected
species. Once its terms are approved by the Services, issuing the
incidental take permit or implementation agreement is largely a
formality.
Given these realities, the process through which an HCP is
developed and approved should be as open to interested members of the
public as is the issuance of land use permits in other contexts. For
example, when the Department of Interior grants grazing permits under
the Federal Land Policy and Management Act, it allows for public
participation so that all parties affected by the process will be
represented. NPDES permits and local building permits are similarly
public processes. \85\ Permit applicants in these processes are not
allowed to control who can and who cannot participate in the permitting
process. Likewise, the Services, not the applicants, should determine
who gets a seat at the HCP negotiation table. Native fish and wildlife
are public resources under both state and Federal juris-prudence,
wherever they may be found. It is fundamentally wrong to treat the
permitting process as a private, rather than a public, affair. The
public does have a legitimate interest in the substantive validity of
the negotiated terms and conditions for take of endangered species on
private lands.
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\85\ Other Federal statutes allow stakeholders to help shape
natural resource use and protection. The EPA convenes interested
stakeholders in setting Federal water quality standards, and NMFS
itself employs stakeholder groups in its efforts to reduce the harm
commercial fishing has on imperiled fish species under the Marine
Mammal Protection Act. Nothing in the ESA precludes the Services from
employing similar measures to involve the public in the HCP development
process.
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The recommendation that the Services, rather than the HCP
applicants, act as the gatekeeper of HCP negotiations does not mean
that the Services must admit to the table everyone whom knocks on the
door. Demonstrated ability to contribute substantively to the issues on
the table without undue delay may be made the price of admission. We
simply urge that the Services themselves assume the role of making
these decisions and not leave them to the permit applicant who has a
vested interest in moving the negotiation process forward with a
minimum of process and scrutiny.
The Value of Public Participation in Habitat Conservation Planning
It must be recognized that the public does have a significant stake
in the HCP process because wildlife is a public resource, both legally
and in the court of public opinion. And, whatever conservation
responsibilities or risks are not borne by the HCP applicant will
either be borne by the species or be shifted to other landowners or to
the public lands, usually at public expense. An HCP that authorizes
land disturbances that can cause flooding, mudslides or loss of
fisheries directly affects the welfare of the local community. \86\
Equally important, public participation in the development of an HCP
can enhance the quality of information on which HCP decisions are
based, improve understanding and relationships among stakeholders,
heighten public and political support for an HCP, and enhance the
plan's long-term viability. Indeed, the degree of public acceptance of
an HCP is strongly related to the degree of public participation in the
development of the plan. The larger the role that interested parties
are accorded in developing conservation plans, rather than merely
commenting on completed plans, the more satisfied they tend to be with
the final result.
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\86\ Kostyack, John. Habitat Conservation Planning: Time to Give
Conservationists and Other Concerned Citizens a Seat at the Table.
Endangered Species Update: Habitat Conservation Planning 51 University
of Michigan (July/Aug. 1997).
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Where a unit of local government applies for the Federal approvals
and then issues development permits, the process is easier to access by
the local community and general public, and the participation issues
largely dissipate. HCPs that include some form of public land, whether
Federal, state, or local, tend to provide more public participation
than HCPs that strictly involve private land. The public usually
becomes involved earlier and more actively compared to HCPs on private
land. \87\
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\87\ The University of Michigan study provides several explanations
for these different levels of participation. First, the public may not
have as much desire to participate in private HCPs as they do in public
HCPs. Although both types of plans effect public wildlife resources,
public HCPs likely have more impact on public finances, future
development, recreational lands, and other activities in which the
public has a stake. Another explanation is that public HCPs provide
more opportunities for public involvement. State and local laws may
compel applicants to hold public meetings or make more frequent
disclosures concerning their evolving plans. Also, many of the
applicants of public HCPs are themselves public institutions who likely
have more experience, inclination, and avenues for including the public
in a formal HCP process than do private entities. Similarly, plans that
affect public resources usually require approval from at least one
public body. This may provide an incentive for public applicants to
involve the public as a means of increasing the legitimacy and
political feasibility of the plan. Univ. of Michigan, supra note 54,
pp. 5-18-5-20.
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However, public participation is usually extremely limited when
private rights holders initiate the HCP process. And, the Services have
offered little in the way of guidance on fostering public
participation. HCP guidelines merely instruct the agencies to encourage
applicants to involve appropriate parties and hold informational
meetings during public comment periods. \88\ The Services have taken a
``satisfied customer'' approach to HCPs wherein the agencies view the
applicant rather than the public as the ``customer'' to satisfy. \89\
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\88\ FWS & NMFS, supra note 19, pg. 6-22.
\89\ Univ. of Michigan, supra note 54, pg. 8-2.
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Public Participation Under The National Environmental Policy Act
Issuance of an incidental take permit is a Federal action subject
to the National Environmental Policy Act (NEPA). \90\ NEPA goes beyond
Section 10 of the ESA in considering the impacts of a Federal action on
non-wildlife resources. \91\ But, like NEPA, the ESA requires a
description of ``alternative actions to such taking.'' \92\ To satisfy
this requirement, applicants commonly analyze just two alternatives
\93\ but must explain why alternatives were rejected. \94\ The Services
do not have the authority to impose a choice among the alternatives
analyzed in the HCP; their role during development is to simply advise
the applicant in developing an acceptable plan. \95\
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\90\ FWS & NMFS, supra note 19, pg. 1-6.
\91\ Depending upon the scope and impact of an HCP, NEPA can be
satisfied by one of three documents: (1) a categorical exclusion; (2)
an environmental assessment (EA); or (3) an Environmental Impact
Statement (EIS). An EIS is required when the proposed project or
activity covered by the HCP is a major Federal action significantly
affecting the quality of the human environment. An EA is prepared to
ascertain whether an EIS is needed. An EA culminates in either a
decision to prepare an EIS or a Finding of No Significant Impact. 42
U.S.C. Sec. 4321 et seq (1969).
\92\ 16 U.S.C. Sec. 1539(a)(2)(A)(iii).
\93\ The two alternatives commonly included in NEPA documents are:
(1) Any specific alternative, whether considered before or after
the HCP process was begun, that would reduce such take below levels
anticipated for the project proposal; and
(2) A ``no action'' alternative, which means that no permit would
be issued and take would be avoided or that the project would not be
constructed or implemented.
FWS & NMFS, supra note 19, pg. 3-35.
\94\ The HCP Handbook allows applicants to cite economic
considerations as reasons for rejecting an alternative. However, if
economic considerations are the basis of rejection, applicants must
provide data supporting this decision so long as the applicant believes
that the information is not proprietary.
\95\ FWS & NMFS, supra note 19, pg. 3-36.
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NEPA's comment periods and disclosure requirements often provide
the only opportunity for the interested public to review and comment on
an HCP before it is approved. But, NEPA's usefulness as a participation
and communications device is limited because the HCP negotiations tend
to solidify a particular approach before public environmental review
can influence them. \96\ The HCP process, like any planning effort,
becomes less flexible as time goes on and more ground is covered.
Therefore, effective public involvement requires access to the process
before the draft impact statement is issued for review. Based on these
considerations, performance reviewers have recommended that the
Services implement ``trigger points'' or points between scoping and the
comment period when negotiators would be required to disclose
agreements in early drafts and seek public comments on those documents.
\97\
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\96\ In its 1998 study on public participation and the HCP process,
researchers at the University of Michigan analyzed 14 HCPs and the NEPA
comments those HCPs generated. It found that the comments received
during the NEPA process, regardless of their context, did not
significantly affect the outcome of the plan. For example, the
outpouring of public comments on the San Diego MSCP in part forced the
applicant and the Service to prepare a second DEIR/DEIS for the plan.
However, the second draft changed only minimally in content over the
first. Similarly, for the Plum Creek HCP, the company representatives
stated that part of Plum Creek's rationale in preparing an EIS rather
than EA for the HCP was that NEPA afforded greater public participation
under an EIS. Nonetheless, participants noted that public comment had a
minimal effect on that plan. Univ. of Michigan, supra note 54, pg. 7-1,
8-3.
\97\ Ibid.
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Tools for Facilitating Effective Participation by Independent
Scientists and Local Communities
The HCP Resource Center
Local communities and conservation organizations that are
interested in upgrading the scientific competence of HCPs generally do
not have access to the requisite expertise or the means to procure it.
To meet this apparent need, the Natural Heritage Institute is working
with other national conservation organizations to create a pool of
resources--both intellectual and financial--to enable independent
scientific expertise to be brought into HCP negotiations on behalf of
conservation interests and local communities. The HCP Resource Center
will be comprised of a nationwide network of conservation scientists
representing the full range of relevant sub-specialties from
universities, private consulting organizations and the non-profit
sphere. It may also include resource economists and wildlife law
experts with appropriate negotiation skills. Teams tailored to the
requisites of particular HCPs will be assembled to engage directly and
effectively with the agency's and the applicant's team of scientists
and negotiators. Creation of the HCP Resource Center is currently in
the planning and fundraising stages. Establishing the center will be a
resource-intensive process. High quality, independent science comes
with a price tag and, for most species, qualified experts are not
numerous.
National Data bank for HCP Materials
As a means of facilitating public involvement in the preparation of
HCPs, several experts have recommended that the Services maintain a
comprehensive, publicly accessible data bank of HCPs. \98\ The data
bank should include sufficient details to assist landowners in matching
their conditions to previously approved HCPs. This capacity would allow
applicants to model their plans after the successful efforts of others
and would allow the public and nonprofit conservation organizations to
track and monitor the implementation of individual HCPs. Because there
is currently no central repository of completed plans and no log of
HCPs under development, the public has not been able to follow the
implementation of the ESA through HCPs as closely as some would like.
\99\ At present, information on individual plans can only be found by
calling government field offices and asking the overworked biologists.
The data base would help both the public and Services track the overall
performance of approved plans. \100\ The financial cost of maintaining
such a data bank would be relatively modest because it would utilize
information already compiled by the Services.
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\98\ Lin, Albert C. Participants' Experiences with Habitat
Conservation Plans and Suggestions for Streamlining the Process, 23
Ecology Law Quarterly 369, 416 (1996); Univ. of Michigan, supra note
54, pg. 14-8; NCEAS, supra note 12, pg. 47.
\99\ The lack of public scrutiny and involvement when HCPs were
launched would later be characterized by the administration as a
``quiet revolution.'' Kostyack, John. Surprise! The Environmental Forum
19 (March/April 1998).
\100\ According to the NCEAS researches, centralized and readily
accessible data on endangered species could do for species protection
what centralized and accessible data on criminals and outstanding
warrants has done for public safety protection; surely, if we can do
this for law enforcement, we can also do it for environmental
protection. NCEAS, supra note 12, pg. 47.
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incorporate adaptive management and the precautionary principle into
hcp design
Because our understanding of the biological world is incomplete,
uncertainties are endemic to conservation planning. The biological
information available on species and ecosystems--and their interaction
with habitat--is always, to some degree, imperfect or ambiguous. The
performance reviews recommend two interrelated tools for dealing with
critical uncertainties: adaptive management and the precautionary
principle. Adaptive management is a technique that tests the response
of biological systems to conservation measures and adjusts conservation
strategies as warranted on an ongoing basis. The precautionary
principle resolves critical uncertainties in favor of greater
protection for the species until and unless better information counsels
otherwise.
Applying Adaptive Management Principles to HCP Design
Adaptive management is a strategy for coping with the uncertainties
inherent in predicting how ecosystems will respond to human
interventions. Adaptive management is an essential feature of habitat
conservation planning because it responds realistically to ignorance
about the ecosystem by monitoring the results of management efforts so
that adjustments can be made as needed. \101\ Under adaptive
management, HCPs are acknowledged to be mere working hypotheses,
predicated upon assumptions about how species and their ecological
processes and functions respond to changes in habitat size, location,
configuration, quality, etc. These assumptions, uncertainties, and
knowledge gaps are made explicit, and the conservation strategy
includes concrete plans and funding for a program of hypothesis-testing
against specified, measurable performance goals.
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\101\ Noss, et al., supra note 13, pg. 133.
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Adaptive management treats every HCP as a ``learning laboratory''
where conservation strategies continue to evolve as scientific
understanding increases. While HCPs will always be experiments with
uncertain outcomes, adaptive management requires resource managers to
acknowledge the risks inherent in the experiment and modify
conservation measures according to experience and new information.
Thus, another word for adaptive management is ``contingency planning.''
At its core, an effective adaptive management program must include a
method for evaluating the performance of the HCP and must specify the
alternative conservation measures that will be triggered automatically
in the event that performance fails to meet conservation goals. Under
such a program, it might be necessary for the permittee to implement
development activity in phases so that permission to begin a later
phase is contingent upon the Services verifying that the performance
standards in the prior phase have been met. This kind of phased
development is more easily accomplished in larger landscape-scale plans
that are implemented over time.
From the Services' perspective, property rights holders are already
successfully incorporating adaptive management into HCPs. However, in
both the existing Handbook and the proposed addendum, the practice of
adaptive management is limited to circumstances where ``significant
uncertainty exists,'' and, even then, only to circumstances where the
applicant accedes to its utilization. \102\ In current practice, the
range of conservation measures that might be required as a result of
evolving information is negotiated as a term of the initial HCP. \103\
Yet, many conservation biologists agree that ``significant
uncertainty'' may not become apparent until after the HCP has been
approved. They advocate for including adaptive management practices in
virtually every plan, making it the rule rather than the exception.
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\102\ Ibid. pg. 3-24. The Draft Addendum to the Handbook does
nothing to expand the use of adaptive management, since the Draft
recommends adaptive management only for plans containing ``significant
data gaps.'' 64 Fed. Reg. at 11486.
\103\ FWS & NMFS, supra note 19, pg. 3-25.
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Conservation biologists have identified five steps to develop an
HCP that utilizes adaptive management practices: \104\
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\104\ Workshop Findings and Conclusions, supra note 16.
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(1) Identify explicit and quantifiable biological goals;
(2) Characterize the human-induced stressors of the ecosystem that
must be overcome or counteracted to achieve those goals, including an
explicit acknowledgement of the critical uncertainties regarding the
stressor-response relationships;
(3) Specify high-probability measures to minimize, mitigate or
offset these stressors or otherwise achieve the biological goals;
(4) Monitor biological indices by developing a statistically valid
sampling protocol. Develop mechanisms to translate data into needed
plan adjustments. \105\
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\105\ These steps call for the rigorous application of the
following scientific methods:
(1) System assessment: systematic collection and statistical
analysis of data on ``health'' of the important ecosystem components
and on the factors that may influence health at several levels:
population, species, community, habitat, and ecological processes.
(2) Experimental science: rigorous, controlled, empirical tests
to confirm causal relationships, management hypotheses, and the
incidental impacts of management.
(3) Risk assessment: statistical analysis of empirical results to
identify levels of risk, including those associated with uncertainty.
(4) Devices for managing risk and uncertainty: including
application of the precautionary principle.
Workshop Findings and Conclusions, supra note 16.
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The choice of conservation measures in Step 3 is crucial to the
success of an HCP. These mitigation measures must represent the ``best
guess'' based on the best available data. Once in place, these measures
constitute the initial working hypotheses that the adaptive management
regimen tests, monitors and adjusts to as necessary to reach the
biological goals.
Measures to Reduce the Risks of Unsuccessful Mitigation
The most frequently used mitigation strategies consist of measures
to minimize or avoid development impacts on the listed species. \106\
While these are usually the easiest and least costly procedures to
implement, the sufficiency of these measures can only be tested over
time and in relation to how the target species responds in the real
world. To maximize prospects for successful mitigation, measures should
be based on the best science available and the mitigation strategy must
be allowed to evolve over time as monitoring progresses. As to the
scientific adequacy of HCPs to date, researchers have found that the
efficacy of the conservation measures initially selected in the plans
varies greatly. In most cases, the mitigation procedures do address the
primary threat to the survival of the species, but only about half of
mitigation plans adequately ameliorate that threat. \107\
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\106\ NCEAS, supra note 12, pg. 24.
\107\ For the 57 percent of the species included in the HCPs
examined by the NCEAS, the mitigation measures addressed the primary
threat to the species to a degree considered ``sufficient'' or better.
The research found that the 10 most common types of mitigation employed
in HCPs were, in order of frequency: minimization, avoidance, land
acquisition , conservation easements, habitat restoration, restoration
of disturbance regimes, removal of exotics, research funding, habitat
banking, and translocation of species. Ibid. pg. 25.
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There are several techniques that can reduce the risks to the
species associated with unsuccessful mitigation strategies. In general,
the Services recommend that mitigation habitat should be as close as
possible to the area of impact. Also, the habitat should include
similar habitat types and support the same species affected by the
development covered by the HCP. \108\ The Handbook recommends that
habitats be ``banked'' through the use of conservation easements or
other means before development occurs. \109\ The ``mitigation credit''
system is a variant of this scheme. Under this system, newly created
habitat receives a credit (usually on a per acre basis) which can then
be used or sold to other parties requiring mitigation lands. \110\ This
allows landowners to pay mitigation fees into habitat acquisition funds
in lieu of conserving habitat on their own lands. Other landowners may
create habitat for purchase as mitigation. For instance, International
Paper Company is restoring and selling red-cockaded woodpecker habitat
in the southeast. The Bakersfield Metropolitan HCP is conserving a
whole suite of species based entirely on marketable development rights.
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\108\ FWS & NMFS, supra note 19, pp. 3-21, 3-22.
\109\ Ibid. pg. 3-21.
\110\ The Services find the ``mitigation credit'' system promising
because: (1) it allows owners of endangered species habitat to derive
economic value from their land as habitat, (2) it allows parties with
mitigation obligations to meet their obligations rapidly since
mitigation lands are simply purchased as credits, and (3) the
mitigation lands are provided prior to the impact, eliminating
uncertainty about whether a permittee might fail to fulfill the HCP's
obligations after the impact has occurred. Id.
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Mitigation banking can achieve habitat goals in an economically
efficient manner and can reconfigure habitat in ways that traditional
HCPs cannot. Because spatial considerations are critical in
conservation, mitigation banking has the potential to result in ``no
net loss'' of habitat and to enhance population stability by exchanging
fragmented habitats for non-fragmented habitats. Assuring that
mitigation banks do not result in a net reduction in the extent or
quality of habitat is particularly essential for already endangered or
threatened species.
However, it is often difficult to establish a ``common currency''
for valuing the habitat that is banked or sacrificed. There may not be
much ``biological content'' to the offset credits assigned. Since
habitat value is site-and detail-specific, there are no unsigned
biological bearer bonds. That is to say, the amount of habitat credit
appropriate to a mitigation scheme is not fungible, but highly
dependent upon the specifics of the exchange. Generic criteria will
quickly break down. What is needed is a process for valuation, not
fixed criteria.
The success of mitigation measures depends on their timely
implementation. To increase the probability that unsuccessful
mitigation procedures can be detected and corrected, implementation
should occur before the listed species are impacted by the permitted
development activities. If most of the take occurs before mitigation
measures are implemented, the chance of adapting the conservation
strategy to correct unsuccessful conservation measures is substantially
reduced. This also applies to plans covering multiple species, both
listed and unlisted. \111\ Also, if take is permitted before the
permittee implements mitigation measures, the incentive to mitigate
effectively is reduced. In general, the Services recommend that the
mitigation habitat should be available before the applicant's
activities commence. However, in some cases, the Services will allow
the HCP applicant to conduct activities before the time when
replacement habitat can be provided. The Services find this acceptable
so long as the HCP provides legal or financial assurances that the
permittee will fulfill their obligations under the HCP. For example,
this assurance can be provided through letters of credit controlled by
the government until the permittee establishes the mitigation lands.
\112\
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\111\ For example, the San Diego MSCP and the Plum Creek HCP cover
53 and 281 unlisted species, respectively, and 32 and 4 listed species,
respectively, but there is no requirement that mitigation must occur
before unlisted species can be taken. Monroe, Jud, Habitat Conservation
Plans Assurances and Assurance Mechanisms: A Preliminary Review of
Approaches to Mutual Assurances in Several Milestone Habitat
Conservation Plans 3. Prepared for the Metropolitan Water District of
Southern California (1997) (hereinafter cited as ``MWD'').
\112\ FWS & NMFS, supra note 19, pg. 3-22.
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Because mitigation can be one of the most expensive steps in the
development and execution of an HCP, the Services and applicants must
determine early in the development of the HCP the cost of the proposed
measures, the source of funding, and the time period over which these
funds will be available. HCPs generally satisfy these criteria. \113\
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\113\ NCEAS found that 98 percent of the HCPs identified in advance
the sources of funding for the mitigation proposed; however, only 77
percent had significant funds set aside to pay for mitigation at the
onset of the HCP. NCEAS, supra note 12, pg. 28.
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The Importance of Monitoring
While the choice of mitigation measures is crucial for an effective
program of adaptive management, biological monitoring comprises the
heart of adaptive management practices. HCPs that do not include a
monitoring program cannot be scientifically evaluated. As previously
stated, adaptive management treats all HCPs as ``learning
laboratories'' in which the underlying conservation hypotheses are
tested against actual responses in the species population. Monitoring
of these responses in order to adjust conservation strategies is
indispensable. \114\ In addition, a precise trigger for mitigation
adjustments needs to be spelled out in the HCP agreement, as well as
procedures for accomplishing the indicated adjustment. The mere
existence of monitoring is not a solution to data shortage unless it
includes a quantitative decisionmaking process that links monitoring
data to adjustments in management.
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\114\ An effective conservation plan requires a long-term
obligation to ecological monitoring and to adjusting plans on the basis
of new information. For example, the monitoring plan for the Coachella
Valley fringed-toed lizard has uncovered, over the past decade, a
number of important factors affecting both lizard populations and the
physical processes of the ecosystem crucial to implementing the plan.
The lizard population has been monitored within three preserves since
1986; the results of these surveys indicate that lizard populations
fluctuate with the availability of loose sand, insects, and other
resources. However, monitoring only lizards, with no observation of the
larger ecosystem or commitment to action according to the results of
monitoring, would not permit adaptive management it would be ``an
academic exercise, with no options for remedial protection efforts.''
Barrows, C.W. An ecological model for the protection of a dune
ecosystem. 10 Conservation Biology as quoted in Noss, et al., supra
note 13, pp. 133-134.
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An adequate monitoring program requires the use of quantifiable
indicators, placed in a hypothesis-testing framework with a valid
experimental design. Three prominent conservation biologists recommend
employing the following checklist when assessing the adequacy of an
HCP's monitoring program: \115\
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\115\ Noss, et al., supra note 13, pp. 135-136.
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(1) Is the monitoring program scientifically and statistically
valid? Monitoring need not be complex and expensive, just
comprehensive.
(2) Does the program effectively test the success of the
conservation measures? The purpose of monitoring is to test hypotheses
and inform management. Does the HCP allow for testing of hypotheses
regarding effects of management practices on populations and other
conservation elements of concern? Does it allow for testing of
alternative management treatments?
(3) Will the program provide timely analysis? Does the plan include
a mechanism for regular and timely analysis and review of monitoring
data? HCPs should include specific timetables for analyzing and
interpreting monitoring data in order to inform management decisions.
Such a requirement assures that monitoring will not stop with the
collection of information but will include efforts to analyze and
interpret it. Monitoring must also be time-sensitive to the life cycle
of the monitored species. \116\
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\116\ For example, short-lived species, e.g., listed mice species,
must be monitored much more frequently than long-lived species, e.g.,
desert tortoises (with respect to generation time), and annual plants
more frequently than redwood tress. Ibid., pg. 132.
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(4) Is the HCP designed to be responsive to information derived
from monitoring? Can the plan be modified to take into account new
information? An HCP that is ``set in stone'' and designed to avoid
future surprises is inflexible and potentially places species and
ecosystems at great risk. Since nature is dynamic and unpredictable,
surprises will occur; it is a matter of whether we notice them. The
sooner we notice them and take corrective action, the lower the risk to
biodiversity. Therefore plans should be evaluated as to how open they
are to modification based on new information.
The principal criteria for determining the adequacy of a monitoring
program should be its ability to evaluate the success of mitigation
measures and the consequent effect on protected species. Monitoring
data should be incorporated into centralized data bases to facilitate
access to information on the overall status of species, and to
facilitate assessment of cumulative impacts for specific plans. \117\
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\117\ NCEAS, supra note 12, pg. 44.
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Reviewers found that few HCPs have well-developed and statistically
valid monitoring programs, \118\ and the Services typically offer
little help to an applicant in constructing a scientifically defensible
monitoring program. \119\ Fewer HCPs still have actually monitored
their results adequately over a period of years so that trends can be
detected. When monitoring is deficient, the essential goal of learning
from experience is much harder to accomplish. Fortunately, the
Services' Draft Handbook Addendum does propose to improve upon current
compliance monitoring by requiring permittees to monitor both their
success in implementing mitigation measures and their effectiveness in
achieving the conservation goals. \120\
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\118\ In their research, Noss, O'Connell, and Murphy found that
plans either completely lack monitoring programs or had only vague
requirements for how plans should be modified on the basis of data
derived from monitoring. Noss, et al., supra note 13, pg. 134. The
NCEAS study sampled 43 HCPs to determine how often plans incorporate a
monitoring program. They found that only 22 of the plans contained a
clear description of the monitoring program. NCEAS found that for the
vast majority of species, monitoring was either absent or not
documented adequately for researchers to assess take, species status,
or mitigation success during the course of the plan's implementation.
NCEAS also found that plans with an adaptive management program were
much more likely to also include clear monitoring plans. NCEAS, supra
note 12, pp. 28-29.
\119\ The HCP Handbook offers only vague guidance. It states that
the following steps are logical elements for consideration in
developing HCP monitoring programs for regional or other large-scale
HCPs:
(1) Develop objectives. Any monitoring program should answer
specific questions or lead to specific conclusions.
(2) Describe the subject of the monitoring program.
(3) Describe variables to be measured and how the data will be
collected.
(4) Detail frequency, timing, and duration of sampling for the
variables. Determining how frequently and how long to collect data is
important to the success of the program.
(5) Describe how data are to be analyzed and who will conduct the
analyses. A monitoring program is more effective when analytical
methods are integrated into the design.
(6) Monitoring must be sufficient to detect trends in species
populations in the plan area but should be as economical as possible.
Avoid costly monitoring schemes that divert money away from other
important programs such as mitigation.
(7) Monitoring programs can be carried out by a mutually
identified party other than the permittee, so long as program is funded
and the party is qualified.
FWS & NMFS, supra note 19, pp. 3-26 3-27.
\120\ The proposed amendment to the Handbook states that: ``The
Services often incorporate monitoring measures to assess whether goals
are being met, especially in cases where additional information may be
desirable or there is significant scientific uncertainty.'' The purpose
of monitoring is to ensure that the permittee complies with the ITP.
The Services have not revealed their intentions regarding Federal
oversight or participation in developing a monitoring plan or the
frequency with which they will review data generated by the monitoring
program if at all. 64 Fed. Reg. pg. 11488-89.
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The Services require the applicant to demonstrate funds sufficient
to carry out the activities under the HCP including conservation
measures, plan administration, and biological monitoring. \121\
However, reviewers have found that many HCPs do not commit sufficient
funds to properly monitor species and habitat and identify problems.
Without funding for the kind of thorough biological monitoring that
makes adaptive management possible, plans cannot be implemented in a
scientifically credible manner. \122\ The conservation organization
Defenders of Wildlife recommends that applicants be required to post a
performance bond or other financial security before they are granted an
incidental take permit, ensuring that funds will be available if a
permit is revoked or additional mitigation measures become necessary.
Such measures would also protect the public if landowners become
insolvent or otherwise terminate the agreement before mitigation steps
are completed. \123\ Other commentators recommend establishing a
Federal trust to provide supplemental support in the event that
landowners comply with the plan but additional measures are needed to
meet biological goals.
---------------------------------------------------------------------------
\121\ 16 U.S.C. Sec. 1539(a)(2)(B)(iii).
\122\ Defenders of Wildlife, supra note 7, pg. 82.
\123\ Ibid.
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Applying the Precautionary Principle to HCP Design
Inadequate information regarding the status of a species or its
habitat and the type and magnitude of take that will occur during
development activities appears to be endemic in the preparation of
HCPs. For 25 percent of species covered by HCP's in one study, the
researchers could not determine whether enough habitat currently exists
to sustain the species. \124\ For only one-third of the species
analyzed in that study were there enough data to evaluate what
proportion of the population would be impacted by the proposed
development. \125\ The data limitations make it difficult to determine
the impacts of future losses or alterations of habitat on the listed
species.
---------------------------------------------------------------------------
\124\ NCEAS, supra note 12, pg. 18.
\125\ When available data were used in preparing an HCP, the NCEAS
researchers found a varying level of quality of their use. For analysis
of status, take, impact, population sizes and habitat availability, the
overall quality of data use was fairly high. However, the use of
existing data regarding extrinsic factors (anticipated human population
growth, likely future pressures on species) was poor, which could
undermine otherwise effective mitigation covered by the HCP. Id. pg.
19.
---------------------------------------------------------------------------
When data are sparse, as they often are for listed species and
usually are for other species covered by an HCP, it is difficult to
confidently design an effective and efficient conservation strategy.
This is why conservation biologists believe that optimal HCP
development should be guided by the traditional scientific method of
using experiments to prove or disprove a testable hypothesis concerning
available conservation strategies. \126\
---------------------------------------------------------------------------
\126\ Williams, supra note 14.
---------------------------------------------------------------------------
The precautionary principle is one method for coping with
incomplete or inadequate information pertinent to habitat conservation
planning. The precautionary principle is used in many fields of
environmental management, as well as fields as diverse as engineering
and economics, where decisions must be made despite uncertainty. The
principle holds that, in the face of poor information or great
uncertainty, managers should adopt risk-adverse practices. \127\
---------------------------------------------------------------------------
\127\ Id. pg. 40.
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In the HCP arena, applying the precautionary principle means
dealing with data deficiencies in a manner that does not place the
target species at risk due to irreversible loss of habitat but also
does not make development impossible. The first step is to assess the
sufficiency of available data. An inventory of available data and
acknowledgement of gaps should be a routine requirement in the
development of every HCP. Where necessary data are not available and
cannot be practicably obtained, the planning process should proceed
with caution commensurate with the anticipated risks and uncertainties.
In extreme cases, an HCP should not be initiated or approved, for it
would be wrong to call the HCP process scientific, or even rational, if
it were not an option to halt the process in the absence of crucial
information. \128\ In general, the precautionary principle counsels
that: \129\
---------------------------------------------------------------------------
\128\ Workshop Findings and Conclusions, supra note 16.
\129\ These points are based on recommendations by NCEAS, supra
note 12, pg. 41.
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The greater the impact of a plan, the fewer gaps in
critical data should be tolerated. For example, the standard of data
adequacy should be higher for irreversible activities such as are
typical in urban development. A lower standard of data adequacy might
be tolerated for activities where impacts can be reversed, as may be
the case for water diversions that are made conditional upon protection
of instream values.
A scarcity of data on impacts of take should be handled by
assuming a worst-case scenario when determining whether approval
criteria have been satisfied.
Take should be quantitatively assessed for large HCPs
covering vast expanses of land.
Mitigation measures should be implemented and assessed
before take occurs where there is a scarcity of information to validate
the effectiveness of mitigation.
Monitoring needs to be very well designed in cases where
the success of mitigation is unproven.
Adaptive management needs to be a part of every HCP
predicated on substantial data shortages, not just to deal with
``unforeseen circumstances.''
In sum, where critical information is scarce or uncertain,
application of the precautionary principle counsels that resulting
plans should:
(1) be shorter in duration
(2) cover a smaller area
(3) avoid irreversible impacts
(4) require that mitigation measures be accomplished before take is
allowed
(5) include contingencies
(6) have adequate monitoring
All of these principles should be enshrined in the HCP approval
criteria in Section 10 of a reauthorized Endangered Species Act.
Review and analysis of HCPs to date has found that these
corollaries of the precautionary principle have not been well applied
in habitat conservation planning. In particular, HCPs based on less
information or less certain information tend to be as long in duration
and a real extent as those based on more adequate information. The
degree of impact avoidance or minimization has not correlated with the
sufficiency of data needed to determine the impacts of the proposed
development activities. Finally, researchers have found that HCPs based
on poor information tend to be more likely to include irreversible
impacts. \130\ These results suggest that HCPs are not generally
structured to be more cautious in cases where applicants are working
with large data gaps.
---------------------------------------------------------------------------
\130\ NCEAS, supra note 12, pg. 41.
---------------------------------------------------------------------------
align regulatory assurances with adaptive management and the
conservation performance of an hcp
Regulatory Assurances: Controversial but Necessary
The Services are convinced that legal assurances are necessary to
induce private rights holders to develop HCPs and to implement the
conservation measures obligated therein. \131\ The increase in HCP
activity in response to such assurances seems to confirm this
assumption. Implicit in this belief is the fear that, unless owners of
non-Federal lands and waters are induced to make conservation
commitments, endangered species habitats will be surreptitiously
destroyed or degraded as such properties are developed. While such take
may be prohibited by the ESA, its occurrence can readily overwhelm the
detection and enforcement capabilities of the Services. In essence,
regulatory assurances provide the necessary inducement for habitat
conservation planning by exempting development activities from new or
additional mitigation requirements beyond those committed in the HCP.
\132\ The major concern of the HCP performance reviewers is that such
regulatory assurances can introduce rigidity in the conservation
strategy that inhibits or precludes adaptive management.
---------------------------------------------------------------------------
\131\ Many commentators concur with the Services that such
assurances are necessary. For example, Robert Thornton believes that
regulatory assurances make HCPs palatable to landowners and can be set
up to be consistent with principles of conservation where the plan is
designed to protect ecosystems rather than listed species. Thornton,
supra note 20, pg. 655-656.
\132\ Dept. of the Interior and Dept. of Commerce. Final Rule,
Habitat Conservation Plan Assurances (``No Surprises''), 63 Fed. Reg.
8859-8860 (Feb. 23, 1998) (hereinafter cited as ``DOI & DOC'').
---------------------------------------------------------------------------
Assurances are also controversial because they tend to shift to the
species, which can ill afford them, the risks associated with our
imperfect knowledge about how complex biological systems respond to
human interventions. Those risks are exacerbated by the practice of
conferring assurances without regard to the quality or duration of the
conservation plan. \133\ The property rights holder typically seeks to
be absolved of further responsibility for the conservation of the
species in exchange for the development concessions made in the HCP,
irrespective of the future population trends for the covered species.
---------------------------------------------------------------------------
\133\ The landowners' desire to reduce risks associated with
economic projections typically determines how long plans apply.
Defenders of Wildlife, supra note 7, pg. 83.
---------------------------------------------------------------------------
Currently, the form of regulatory assurance provided by the
Services is the ``No Surprises'' guarantee. \134\ The policy can be
traced back to a House of Representatives Committee Report on the 1982
Amendments to the Endangered Species Act. \135\ The Report stated that,
in the event an unlisted species is listed after permit issuance,
---------------------------------------------------------------------------
\134\ The ``No Surprises'' rule provides a ``bankable''
understanding that additional land or money will not be required on the
``whim and caprice of the Services''--especially when the additional
requirements derive from events beyond the control of the landowner.
Thornton, supra note 27, pg. 66. Yet, some commentators worry that the
rule could set a dangerous precedent in the way agencies deal with
changing circumstances. For example, polluters should not be protected
from the regulatory effects of new information indicating that a
discharged pollutant is a poison. Similarly, land or water developers
should not be protected from the effects of new information indicating
that certain habitat management techniques interfere with recovery.
Sher and Weiner, supra note 32, pg. 69.
\135\ H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 30, reprinted in
1982 U.S. Code Cong. & Admin. News 2860, 2871-2872.
``no further mitigation requirements should be imposed if the [HCP]
addressed the conservation of the species and its habitat as if the
species were listed pursuant to the Act.'' \136\
---------------------------------------------------------------------------
\136\ Ibid.
The Report also stated that ``circumstances and information may
change over time'' and that the original plan might need to be revised.
To address this situation, the Committee ``expect[ed] that any plan
approved for a long-term permit [would] contain a procedure by which
the parties will deal with unforeseen circumstances.'' Finally, the
---------------------------------------------------------------------------
Report specified that the Services may:
``approve conservation plans which provide long-term commitments
regarding the conservation of listed as well as unlisted species
and long-term assurances to the proponent of the conservation plan
. . .'' \137\
---------------------------------------------------------------------------
\137\ Id.
Today, the ``unforeseen circumstances'' clause is interpreted to
mean that landowners are not responsible for the decline of listed
species covered by their plan if that decline is attributable to events
that the landowner could not have foreseen at the time the plan was
approved. \138\ The Services formally adopted the policy as an agency
rule on February 23, 1998. \139\
---------------------------------------------------------------------------
\138\ FWS & NMFS, supra note 19, pg. 3-29.
\139\ The policy was informally adopted in 1994 and included in the
HCP Handbook in 1996. Ibid., pg. 3-29. Because the policy was adopted
without benefit of public review or comment, conservationists sued the
Services in 1997. Spirit of the Sage Council v. Babbitt, Civ. No. 96-
cv02503 (Dist. D.C. 1997). To resolve the lawsuit, the Services adopted
the policy a formal rule. DOI & DOC, supra note 132, pg. 8860.
---------------------------------------------------------------------------
The ``No Surprises'' policy has had a dramatic affect on the public
perception of the ESA. It has muted political concern that the ESA is
unworkable and too stringent. \140\ Yet, the policy has no shortage of
critics, conservation biologists among the harshest. Some of the
outstanding issues that biologists find problematic include:
---------------------------------------------------------------------------
\140\ Baur, Donald C. The No Surprises Policy: Stepping Away from
Sound Bites and Getting Down to Business. 14 Endangered Species Update:
Habitat Conservation Planning 63 University of Michigan (July/Aug.
1997).
---------------------------------------------------------------------------
Unforeseen circumstances. The rule distinguishes between
``unforeseen circumstances,'' which are events that could not
reasonably have been anticipated, and ``reasonably foreseeable changes
in circumstances,'' including natural catastrophes that normally occur
in the area. HCPs need address only the latter; unforeseen
circumstances do not impose any conservation burdens on the applicant.
\141\ The rule thus requires contingency planning only for stochastic
events rather than the more likely failure of mitigation measures to
work as ``foreseen'' or anticipated, such as the common circumstance in
which the HCP is implemented as agreed but species decline nonetheless.
The risk of such ``unforeseen'' events dramatically increases for HCPs
that last several decades, cover large areas, and cover many species,
such as housing developments or timber harvesting. Yet the plans for
these activities involving long periods of construction or operation
contain the same assurances as do short-term, single species plans.
---------------------------------------------------------------------------
\141\ In the event of unforeseen circumstances, the permittee
``cannot be required to commit additional land, funds, or additional
restrictions on land, water or other natural resources `` FWS & NMFS,
supra note 19, pg. 3-29.
---------------------------------------------------------------------------
In the event of a finding of ``unforeseen circumstances,'' the
Services are free to take additional actions at their own expense to
protect the species, provided that they have the financial means
appropriated by Congress to do so, and provided that the affected
landowners agree to cooperate. Curiously, in an era where the Services
are only able to meet a fraction of their statutory responsibilities,
\142\ the Services maintain that they have ``significant resources'' to
provide additional protection for listed species subject to an HCP.
\143\ The Services also have expressed confidence that many landowners
would willingly consider additional conservation on a voluntary basis.
\144\ However, given the wealth of evidence to the contrary, further
explanation of this assumption is warranted.
---------------------------------------------------------------------------
\142\ For example, an EDF study found that listed species are not
improving on Federal land because the number of species being listed is
out pacing the Services increases in funding. The funding for the
endangered species program has increased nearly threefold since 1976;
however, the number of listed species has increased fivefold during
that same period. Environmental Defense Fund, supra note 6, pg. 6.
\143\ DOI & DOC, supra note 132, pp. 8862, 8869.
\144\ Ibid.
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In addition, the threshold for finding that circumstances are
``unforeseen'' (and that the Service can therefore undertake additional
conservation measures at its own expense and with the permission of the
landowner) is unrealistically high. Under the rule, the Services ``have
the burden of demonstrating that unforeseen circumstances exist, using
the best scientific and commercial data available. The findings must be
clearly documented and based upon reliable technical information
regarding the status and habitat requirements of the affected
species.'' \145\ The rule includes a number of specific factors that
the agency must consider in determining whether it has demonstrated
that unforeseen circumstances exist. \146\
---------------------------------------------------------------------------
\145\ Id., pg. 8868.
\146\ The Services will consider the following factors:
(1) the size of current range of the affected species;
(2) the percentage of range adversely affected by the HCP;
(3) percentage of range conserved by the HCP;
(4) ecological significance of that portion of the range affected
by the plan;
(5) level of knowledge about the affected species and the degree
of specificity of the species;
(6) conservation program under the plan; and
(7) whether failure to adopt additional conservation measures
would appreciably reduce the likelihood of survival and recovery of the
affected species in the wild. Id.
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Adaptive management. Conservation biologists worry that
the ``No Surprises'' policy falsely assumes that we can predict all the
consequences of implementing a particular HCP. Under the rule, the
Services cope with gaps in biological data by either denying the
application for a take permit or requiring that the applicant build an
adaptive management program into the HCP. \147\ However, the rule does
not deal with the situation where new data from the monitoring program
or another source indicates that achievement of the conservation goals
will require a change in the conservation strategy. The ability to
require such modifications is what we mean by ``adaptive management.''
If modification of plans in response to new information is precluded by
the ``No Surprises'' policy, failures to attain biological goals are
inevitable. \148\
---------------------------------------------------------------------------
\147\ Id., pg. 8864.
\148\ Noss, et al., supra note 13, pg. 134.
---------------------------------------------------------------------------
Regulatory assurances for conservation measures covering
nonlisted species. While the ESA does not require landowners to protect
unlisted but declining species on their lands, the Services encourage
landowners to ``address'' any unlisted species in an HCP by conferring
additional regulatory guarantees that further mitigation will not be
required if such species is later listed. \149\
---------------------------------------------------------------------------
\149\ Assurances are only extended to measures covering an unlisted
species if the HCP meets the section 10(a)(2)(B) standards for the
species. DOI & DOC, supra note 132, pg. 8867. This is consistent with
the assurances contemplated in the ESA's 1982 amendments. H.R. Rep. No.
97-835, 97th Cong., 2d Sess. 30, Reprinted in 1982 U.S. Code Cong. &
Admin. News 2860, 2871-2872; Habitat Conservation Planning Assurances
(No Surprises Rule) 63 F.R. 8859 (Feb. 23, 1998).
---------------------------------------------------------------------------
A good example of the risks posed to unlisted species that are
included in an HCP can be found in the Plum Creek timber plan. The Plum
Creek plan allows the take of four species currently protected by the
ESA: northern spotted owl, marbled murrelet, grizzly bear, and gray
wolf. \150\ The HCP also addresses another 281 unlisted vertebrate fish
and wildlife species. The planning area of 419,000 acres provides
habitat for 77 mammal, 178 bird, 13 reptile, 13 amphibian, and 4 fish
species. \151\ While Plum Creek's measures to benefit these species
include greater riparian buffers and wetland protection than would be
required under existing state law, the public is likely to be bound to
these commitments if, in 100 years, one or many of these species need
further protection.
---------------------------------------------------------------------------
\150\ Plum Creek Multi-Species Habitat Conservation Plan on
Forestlands owned by Plum Creek Timber Company in the I-90 Corridor of
the Central Cascades Mountain Range (June 1996).
\151\ Ibid.
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As another example, San Diego County's large-scale NCCP management
plan shields local government and developers from providing additional
commitments of land or money for conservation purposes so long as they
comply with the plan. \152\ Such regulatory assurances apply to some 85
listed and unlisted species and may be applied to additional species in
the future if signatories to the MSCP agree that the species are
``adequately conserved'' by the plan. \153\
---------------------------------------------------------------------------
\152\ The Services may not even impose new mitigation measures that
do not require additional land, land restrictions or money except in
``extraordinary circumstances.'' Extraordinary circumstances are
defined as either: (1) ``a significant, unanticipated adverse change in
the population of any covered species or [its] habitat with the MSCP
Area''; or (2) ``any significant new or additional information that was
not anticipated by the [signatories] at the time the MSCP was approved
and that would likely result in a significant adverse change in the
population of any covered species or [its] habitat within the MSCP
Area.'' Mueller, Tara. Natural Community Conservation Planning:
Preserving Species or Developer Interests? 14 Endangered Species
Update: Habitat Conservation Planning 27 University of Michigan (July/
August 1997).
\153\ Ibid.
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If adequately addressed in an HCP, unlisted species could be
protected from further decline so as to avoid a listing, thereby
guaranteeing that the landowner will not be subject to further
mitigation. \154\ Unfortunately, establishing conservation requirements
for unlisted species is difficult since little is generally known about
the requirements of the species. As a result, an applicant must be
willing to invest in further biological studies to ensure that the HCP
adequately covers unlisted species. In this case, a critical issue in
HCP development is the early identification of those species or
biological communities that the plan is to cover \155\ and a
determination by the Services that enough is known about the species so
that HCP proponents can construct an effective conservation plan.
---------------------------------------------------------------------------
\154\ Defenders of Wildlife, supra note 7, pg. 20. The Services
cite this same advantage in their HCP Handbook. The Handbook states
that there are significant biological advantages when HCPs are
comprehensive planning documents that address species' conservation
needs collectively on a community, habitat-type, or even ecosystem
level. The Services encourage this approach since it avoids
inefficient, piecemeal land-use planning by encouraging landowners to
trust that addressing the interests of wildlife serves their interests
as well. FWS & NMFS, supra note 19, pg. 4-2.
\155\ Thornton, supra note 20, pg. 640.
---------------------------------------------------------------------------
Reforming Assurances
Given the importance of regulatory assurances to create an
environment in which non-Federal property rights holders will make
commitments to conserve habitat, we must explore options that do not
shift to the vulnerable species the risks inherent in uncertain and
untested conservation strategies. Adaptive management permits a
flexible response that improves as results are monitored. However,
adaptive management requires a fundamental change in the way the
regulatory assurances are structured so that HCPs remain flexible and
contingent rather than immutable, as they are now. One solution lies in
converting the assurance package from regulatory immunity to regulatory
indemnity. A policy of regulatory indemnity would mean that, if the
monitoring program indicates that the species will continue to decline
unless additional restrictions are imposed or additional mitigation
measures are applied, these could be implemented without the consent of
the property rights holder but also without economic costs to that
entity. Instead, the biological risks would be absorbed by a
compensation fund.
The use of regulatory indemnity in the HCP process is analogous to
risk insurance in that it converts the problem of how to allocate the
risks associated with the biological uncertainties of HCPs to the
problem of how to allocate the costs of funding the indemnity pool and
how to determine eligibility for compensation. The compensation pool
could be funded from ``premiums'' contributed by the ``beneficiaries,''
a category that includes both HCP applicants and the public at large.
Indeed, most commentators recognize that some, perhaps most, of the
costs of managing adaptively will have to be borne by the public at
large. This is already beginning to happen in the California Central
Valley water system, the Everglades, and other aquatic ecosystems.
\156\
---------------------------------------------------------------------------
\156\ Solving the issue of how to determine compensated loss in a
manner that satisfies the private rights holder is simpler in the
aquatic context than in the terrestrial because lost water supply
reliability is both relatively easy to measure and to compensate for.
---------------------------------------------------------------------------
One commentator notes that biological risks to economic development
are not different in kind from the myriad of other risk factors for
which the construction industry has found insurance coverage to provide
the necessary certainty required by capital markets. \157\ In the
construction context, parties do not argue about the need to provide
certainty since they know from experience that surprises are to be
expected; instead, they figure out how to minimize the risks and
provide sufficient security to afford the lender comfort to finance the
project. \158\ Carried to its logical conclusion, reducing the
financial risks associated with land development under the ESA should
lead to more favorable interest rates for development loans. Thus,
potential also exists to fund a portion of the compensation pool
through reductions in the cost of debt service for covered development
projects on the premise that an indemnity arrangement does reduce the
risks to development under the ESA.
---------------------------------------------------------------------------
\157\ Thornton, supra note 27, pg. 65.
\158\ Ibid. pp. 65.
---------------------------------------------------------------------------
As discussed above, another suggested reform in regulatory
assurances would calibrate the duration or rigor of the assurance to
the quality or expected performance of the HCP's conservation strategy.
Under this approach, the scope or duration of the regulatory assurance
would depend on the magnitude of the HCPs contribution to the recovery
of the target species. Plans that confer a net survival benefit would
get longer and more comprehensive guarantees than those that simply
maintain the current population level or allow some decrease.
Similarly, plans for which the underlying data and analyses are judged
to be superior would be entitled to superior guarantees. Stronger, more
comprehensive, or longer-term assurances would be reserved for HCPs
that have the following features:
(1) Recovery goals;
(2) An effective monitoring program;
(3) An adaptive management program which identifies the significant
risks of unsuccessful mitigation measures, includes a contingency plan
that will be triggered in the event that the conservation measures do
not achieve their goals, and commits sufficient funds to carry out this
program; and
(4) An effective enforcement mechanism in the event that the
commitments in the HCP are not honored.
conclusion
Empirical reviews of the performance of the habitat conservation
planning experience during its first 15 years reveal substantial
opportunities to restructure the process to improve the prospects for
successful outcomes from the vantage points of both imperiled species
and nonFederal property rights holders. These benefits can be
accomplished without amending the statutory framework, although a
modest ``tune-up'' of the Endangered Species Act would help enable
these reforms. A marked change in the Federal administration of this
program and a substantial increase in Federal investments in habitat
conservation are the indispensable ingredients.
In sum, these reforms would entail:
Shaping individual HCPs to contribute to a landscape-
scale, bio-regional conservation strategy. Responsibility for
developing bio-regional conservation strategies would fall to either
the Federal Services or units of government at the state or local
level. Increased involvement of government would shift much of the
burden of gathering adequate scientific data onto the public sector as
well as allow for more involvement by independent scientists and the
interested public. The creation of landscape-scale HCPs would define
objectives and strategies to which conservation efforts on non-Federal
lands would be expected to conform. And it would provide necessary
guidance as to the contribution toward those conservation goals that is
needed from each parcel-specific HCP within the eco-regional planning
unit. In addition, eco-regional planning would facilitate a more
equitable distribution of responsibility for conservation between
Federal and nonFederal rights holders.
Aiming bio-regional conservation strategies at species
recovery. The only biologically defensible goal for habitat
conservation planning is the recovery of the endangered species. The
Federal Government can advance recovery by managing public lands and
waters to a higher conservation standard than the legal minima.
Recovery would also be advanced incrementally by habitat acquisitions
or restoration actions that more than offset the habitat losses (i.e.
mitigation measures that create a net biological benefit). Where
species recovery requires a greater conservation effort by the
individual rights holders than is imposed by the current legal standard
of avoiding jeopardy, Federal resources may be necessary to close the
gap. This may often take the form of purchases of the highest-value
habitats from willing owners. Occasionally, it may also entail
involuntary, but fully compensated, acquisitions should Federal
condemnation authority be eventually conferred.
Reserving the decision on participation in the HCP
negotiations for the Services rather than the permit applicants. If the
Services act as ``gatekeeper'' to the HCP negotiations, highly
qualified independent scientists and other representatives of the
public interest can be included in what is now often a closed process.
Scientific experts should be allowed to ``intervene'' in HCP
negotiations on behalf of local communities and conservation interests
to help shape a conservation program from its formative stages. Habitat
conservation plans developed with independent scientific input are more
likely to succeed in their conservation goals, thus diminishing the
chances that the Services will need to revise development permits.
Through innovative tools such as the HCP Resource Center, all
stakeholders can all enjoy the benefits of expert scientific input in
the HCP negotiation process without the proponent absorbing the cost.
Incorporating adaptive management routinely in HCPs. This
entails including in the chosen conservation strategy a process for
structured learning and adjustment. This, again, will improve the
prospects for success of the conservation venture. If coupled with an
insurance arrangement, necessary adjustments can be accomplished
without financial risk to the permit holder. This would reduce
regulatory risk more effectively than the current ``No Surprises''
assurance, which, in any event, is legally infirm in the event of
imminent extinction of a target species.
Habitat conservation planning must be made to work better in the
interest of all stakeholders. For preventable extinctions in the course
of developing private lands will not long be tolerated by a people who
have affirmed time and again in the political crucible the mandate that
the web of life on which human welfare itself depends shall be
conserved. Experience to date illuminates some of the pathways for
better performance. It is time to harness these lessons and chart a
more certain course.
HABITAT CONSERVATION PLANS
----------
TUESDAY, OCTOBER 19, 1999
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and
Drinking Water,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:04 a.m., in
room 406, Senate Dirksen Building, Hon. Michael D. Crapo
(chairman of the subcommittee) presiding.
Present: Senators Crapo, Thomas, Reid, and Chafee [ex
officio].
Also present: Senator Baucus.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. The hearing will come to order.
Good morning and welcome to the third in a series of
hearings by the Subcommittee on Fisheries, Wildlife, and
Drinking Water, examining habitat conservation plans.
The subcommittee began a listening and learning endeavor in
July of this year to better understand the benefits and
concerns related to habitat conservation plans. We heard from
scientists, academics, forest products companies, and
environmentalists about science and the adequacy of science,
and the challenge of making land management decisions in the
face of scientific uncertainty.
Today, eight witnesses will offer testimony focusing on the
policy questions of HCPs. At present, under the Endangered
Species Act, HCPs are the only flexibility afforded to private
landowners who wish to conduct activities such as forest
management or development, when threatened or endangered
species occupy a piece of their land or use it as habitat.
We are joined today by representatives of the environmental
community, county government, agriculture, homebuilding
industry, the forest product companies and the energy industry
to learn from their experiences and knowledge of HCPs. These
are the people who have been directly involved in developing,
negotiating, implementing, and litigating HCPs.
A growing list of species protected under the Endangered
Species Act and the need for property owners to comply with the
Act while continuing to derive an economic benefit from their
land has resulted in an expediential increase in the use of
this beneficial tool. To date, the Fish and Wildlife Service
has negotiated more than 250 HCPs, and has approximately
another 200 in process.
HCPs sound like the type of ``win/win'' solution that we
would all like to see for threatened and endangered species,
protection of the species, and flexibility for landowners to
carry out activities on their land.
It is unfortunate that the reality of negotiating HCPs has
not tracked more closely with what the law and the subsequent
policies have intended.
While the Fish and Wildlife Service and the National Marine
Fisheries Service have sought to improve the process of
negotiating HCPs through its Habitat Conservation Planning
Handbook and other guidance, the process remains fraught with
obstacles for property owners seeking HCPs.
Landowners involved in negotiations and those who have
completed plans have demonstrated their willingness to conserve
species by coming to the table, ready to engage in
negotiations, and implementing measures on the ground. But all
too frequently, the process has proved to be inadequate in
getting HCPs completed.
This is not a favorable outcome for the species in need of
protection, or for property owners who must continue to make
decisions about the activities that will be carried out on
their land.
I am keenly interested in making HCPs work better.
Americans have a rich conservation history, and we have
demonstrated a commitment to protecting our wildlife and
fisheries resources, particularly those threatened or
endangered.
Private landowners do and can make important contributions
to the endangered species conservation. But we must have
mechanisms in place to allow property owners to make a living
from their land. HCPs are definitely the right idea. But
modifications must be made if they are to achieve their
intended goal.
I believe today's witnesses will provide the subcommittee
with a better understanding of the problems that habitat
conservation and planning present, so that we can consider and
improve this tool, and make it a truly beneficial tool to the
species and to the people.
I will ask the chairman of the full committee, Senator
Chafee, if you wish to make an opening statement.
OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Chafee. Well, thank you very much, Mr. Chairman. I
want to commend you for holding these hearings on habitat
conservation planning under the Endangered Species Act.
I believe they are critical to our understanding of the
important issue that is instrumental in the continued success
of the ESA.
Before exploring the policies we should adopt to protect
endangered species, it seems to me we have got to explore the
scientific foundation supporting these policies. And that, of
course, is what you did when you had your hearings in July. We
heard testimony from a number of witnesses who provided insight
into the science underlying HCPs.
I was particularly impressed by the general agreement among
the scientists that HCPs, by and large, are essential for the
conservation of species. And while improvements are needed, the
basic principles behind the HCPs are sound.
I want to compliment you, Mr. Chairman, on holding these
hearings. And I anticipate that today's hearing will be equally
informative. And I would ask that the balance of my statement
be included in the record.
Senator Crapo. Without objection.
Senator Chafee. Thank you very much.
[The prepared statement of Mr. Chafee follows:]
Statement of Hon. John H. Chafee, U.S. Senator from the State of
Rhode Island
Thank you, Mr. Chairman. I want to commend you for holding these
hearings on habitat conservation planning under the Endangered Species
Act. These hearings are critical to our understanding of an extremely
important issue that is instrumental in the continued success of the
ESA.
Before exploring the policies that we should adopt to protect
endangered species, we must explore the scientific foundations
supporting those policies. With respect to HCPs, the hearings that you
chaired in July accomplished exactly that: we heard testimony from a
number of witnesses who provided insight into the science underlying
HCPs. I was particularly impressed by the general agreement among the
academic scientists that HCPs by and large are essential for the
conservation of species, and while improvements are needed, the basic
principles behind HCPs are sound. I would like to complement you, Mr.
Chairman, on holding those hearings, and I anticipate that today's
hearing will be equally informative.
The need to protect threatened and endangered species on non-
Federal lands could not be greater. (By non-Federal lands I mean those
lands that are either privately or state-owned). Consider these facts:
two-thirds of all listed species have over 60 percent of their habitat
on non-Federal lands, and one-third of all listed species are dependent
entirely on non-Federal lands. The conservation of these species thus
rests largely, if not entirely, on the ability of non-Federal
landowners to take appropriate measures. The primary tool under the ESA
for their activities is the HCP.
At the same time, landowners have long criticized the ESA for being
inflexible and unworkable. HCPs provide liability coverage against the
prohibitions of the ESA, but more importantly, they provide a
management tool for landowners. With the new policies instituted by the
Administration, HCPs have become economically and logistically feasible
for landowners. Since 1994, more than 245 HCPs covering six million
acres have been approved, with another 200 under review.
However, there are still numerous questions regarding the
development and implementation of HCPs. Conservation groups criticize
the HCP initiatives, particularly the no-surprises policy, as
undermining species conservation. Landowners complain that they still
run into obstacles in both negotiating and implementing HCPs, and that
the Administration does not always apply consistent standards.
In addition, critics on both sides believe that the Administration
has exceeded its statutory authority in implementing these new
policies, and are challenging them in court. This morning, we will hear
from two of the lawyers involved in the litigation challenging the no-
surprises policy.
As you know, last Congress we attempted to reauthorize the ESA, and
our bill included a number of provisions to address HCPs. As we
consider new legislative initiatives on HCPs, it is useful to further
explore the science and policy behind the current policies. Your
leadership on these hearings, Mr. Chairman, is both timely and
critical. I look forward to the testimony of our distinguished
witnesses this morning.
Senator Crapo. Senator Reid.
OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR FROM THE
STATE OF NEVADA
Senator Reid. Thank you very much, Mr. Chairman.
Your predecessor, Senator Kempthorne, with the chairman of
the full committee, Senator Chafee, the ranking member, Senator
Baucus, and I, I think, did some of the best legislative work
that I have ever been involved in, in my several decades
involved in the legislative process. We came up with a
Endangered Species Act.
We had the language passed out of this committee. We were
very proud of that. It got on the Senate floor and was not
brought up.
By the time we were ready to bring it up, a lot of darts
had been thrown at it. We were unable to move that legislation.
It was, I think, just a remarkably good piece of work. It is
too bad that we did not move on it when we could.
We have not, and now we are trying to enact bits and pieces
of the Endangered Species Act. It may be the way to go.
I would like to welcome all the witnesses today. Habitat
conservation plans, I believe they are a useful, creative tool
for the protection of both endangered species and private
property rights.
They have not given us a perfect answer, but they have
moved us in the right direction. I think a fresh look at what
we have learned is beneficial.
The largest habitat conservation area in the United States
is in the State of Nevada. People do not realize the State of
Nevada is the most densely populated State in American, the
most urban State in America. Ninety percent of the people live
in two metropolitan areas, Reno and Las Vegas.
We are more urban than Rhode Island, New York, California,
Florida. It surprises some to learn that the largest habitat
conservation area in the United States is in the most densely
populated part of Nevada. That is the Las Vegas area.
That habitat conservation plan for the desert tortoise
encompasses almost 6 million acres, and has allowed for
relatively peaceful coexistence of the threatened desert
tortoise with as many as 10,000 new residents moving into Clark
County every month.
These new residents have brought with them one of the
longest sustained building and economic booms in the history of
the United States. Yet, all of it is taking place despite the
presence of the desert tortoise, a species that was emergency-
listed in August 1989.
Jim Moore, formerly the desert tortoise HCP coordinator for
the Nature Conservancy of Nevada, is here this morning to
describe the process and procedures that were used in Las Vegas
to bring about what has been a very successful solution in
southern Nevada.
I am happy that Jim is here this morning and I certainly do
not want to give away his testimony. I have read his testimony.
It is extremely interesting and precise.
It is safe to say that the HCP process that was followed in
southern Nevada has been successful. The entire process was
time consuming, and at times, very frustrating.
The amount of public participation that went into the final
plan was unprecedented, in addition to the amount of private
money that went into the plan to make it successful. But the
end result was a system that everyone could live with, and one
that protects the species that have been listed.
Earlier this year, when I sat down to discuss the agenda of
this subcommittee with you, Mr. Chairman, I shared with you my
concern that comprehensive reform of the Endangered Species Act
was probably unrealistic this year, and probably in this
Congress, especially given last year's fate of S. 1180.
I think the committee can make substantial progress by
taking an incremental bipartisan approach. As a group, there
are many things we can and should address in the ESA.
This hearing is the latest in a series of forums that this
subcommittee has held this year on specific issues within the
Endangered Species Act. Earlier this year, we held hearings and
drafted up legislation concerning recovery habitat. That
legislation is currently awaiting action on the floor.
Based on what we hear and read, this committee may move
forward to try to improve the procedures and processes
surrounding habitat conservation plans.
While the desert tortoise HCP has been very successful,
other communities have struggled, particularly with issues such
as: what level of assurance is required for both sides; what
level of public participation should be required; and what
happens in the event of a mistake? All of these are valid
concerns, and there are others that we will hear about today.
The things that we, as a group, can come to consensus about
and act on to improve the use of HCPs, I think we should do
that forthwith.
However, before we move too far down the path on habitat
conservation plans, I want to see the fate of our recovery
habitat bill played out a little more.
If the consensus and cooperation that mark this committee's
work on S. 1100 carries through to full Senate consideration of
that legislation, then I will be much more comfortable moving
ahead in other areas of the ESA.
So, Mr. Chairman, I thank you for agreeing to hold this
hearing. Throughout the year, I have been very impressed with
your knowledge of this subject, and your willingness to listen
to different sides. And I look forward to this hearing.
I do apologize, because of the duties that I have in the
Capitol, I am not going to be able to stay for the entire
hearing. My friend from Nevada will be on the second panel.
Senator Crapo. Thank you very much.
Senator Thomas.
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Thank you, Mr. Chairman. I am glad to be
able to participate in this hearing today on conservation
plans.
I think the future of the endangered species is one of the
most important issues that we have to deal with on this
committee. And I agree with my friend from Nevada, that we had
an opportunity last year, but unfortunately, were not able to
put it into place.
There are lots of examples of good intentions to recover
endangered species that have gone astray. A lot of folks in
Wyoming are clamoring for some type of reform.
At the outset, let me say that even though today's meeting
is focused on habitat conservation plans, I think we need to
look at substantially more changes than that. I also have a
bill that deals largely with listing and de-listing.
We have found that the quality of science used in listing
and nominating petitions falls short. They are of postage stamp
petitions. We need to change them, rather than trying to shore
them up.
We need to take a look at HCPs as a tool. Apparently, they
have been a better tool for large landowners than they have for
small landowners. We need to take a long look at that. It is
very costly for a small landowner. The incentives, I think, are
not very high.
In general, I just believe we have to have an Act that is
more effective in trying to protect the local landowners and
public land managers and communities.
Our efforts are sure to fail if there is not some more
cooperation among the Federal, State, and local governments.
Many times, we say we are partners, and we are going to work in
a partnership, but it is kind of a ``one horse, one dog''
partnership.
The city of Douglas, WY, for example, just recently got
caught up in the bureaucratic administration of it. The city's
water main broke. Inside of the break, a Preble's meadow
jumping mouse, was found.
It took 2 months for the agency to issue a permit to fix a
line, which left half the city of Douglas at risk for drinking
water, and the whole city at risk in terms of fire protection.
Now come on. One jumping mouse is hardly an excuse for
doing that. So I think we have a lot of things to do. This,
perhaps is one step, Mr. Chairman, and I appreciate it.
[The prepared statement of Senator Thomas follows:]
Statement of Hon. Craig Thomas, U.S. Senator From the
State of Wyoming
Mr. Chairman, thank you for holding this hearing to examine both
the benefits and the policy concerns related to Habitat Conservation
Plans (HCP). I think the future of the Endangered Species Act (ESA) is
one of the most important issues we'll deal with in the Environment and
Public Works Committee. Unfortunately, the Act has become one of the
best examples of good intentions gone astray. Folks in Wyoming are
truly concerned and are clamoring for some type of reform.
Out the outset, I want to make it clear that even though our focus
today is on Habitat Conservation Plans, we really need to look at
making substantial changes to the entire Act. As you know, I've
introduced a bill S. 1305, the ``Listing and Delisting Act of 1999''
that deals with the core of the Endangered Species Act--sound science--
specifically the quality of science used in the listing and petitioning
process. Right now, it's basically a ``postage stamp'' petition: any
person who wants to start a listing process may petition a species with
little or no scientific support. We are simply going to have to make
some real changes to an act that is not working.
Unfortunately, given the political reality, the Endangered Species
Act is what it is. By that, I mean it is not going to be repealed and
most likely is not even amendable with the significant modifications I
and others have offered. Given that grim scenario, I will discuss
Habitat Conservation Plans. HCP's are tools for some landowners to help
manage their lands once a species has been listed. However, HCP's seem
to be a better tool for very large companies rather than the small
private landowner. For a small landowner, the HCP's could be very
costly--where is the incentive? In many cases, these people depend on
their land for their livelihood.
In general, we need to make the act more effective for the species
we're trying to protect, and more effective for the local landowners,
public land managers, communities and State governments who truly hold
the key to the success of any effort to conserve species. If there's
one lesson to be learned from the failures of the current act, it is
that the only way we can successfully recover a species is through true
partnerships.
Truthfully, our efforts are sure to fail if there isn't cooperation
between Federal, state, and local governments, as well as private
interests. Many times, this is easier said than done. The average
citizen of Wyoming or anywhere for that matter is extremely leery of
Federal agencies and they have a right to be. The city of Douglas,
Wyoming just recently got caught up in the bureacracy of the
administering of the ESA. The city's main water line broke and at the
site of the break, a Prebles Meadow Jumping Mouse was found. It took 2
months for the Agency to issue a permit to fix the line which left half
the city of Douglas at risk in terms of drinking water and the whole
city at risk for fire protection. This example illustrates the
inability of this particular Federal Agency to cooperate and deal with
folks in a real world manner. Mr. Chairman, I look forward to hearing
from our witnesses and working with you as we discuss and ultimately
amend a law that is simply not working.
Senator Crapo. Thank you very much.
Senator Baucus.
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
STATE OF MONTANA
Senator Baucus. Thank you, Mr. Chairman.
I appreciate your holding this hearing. Maybe we can get
something accomplished here on a matter which is extremely
important--a lot of landowners feel hamstrung by the Act. A
well-intended group people are limited by a well-intended law,
and therein lies the problem.
As has been mentioned earlier, we endeavored gallantly in
the last Congress to come up with a basic solution to the
reforms of the Endangered Species Act, which included habitat
conservation plans. I thought it was a very good bill. It was
virtually passed, but not quite.
My main point, Mr. Chairman, is that we have got to provide
cooperation and leadership here. I agree with the comments of
my good friend from Wyoming, that sometimes when we talk about
partnership, the people on the other side do not live up to the
spirit of what is intended.
But we are the Congress, and we make the laws. What we do
here has an effect on what happens in the States whether in
terms of what Federal agencies do, like the Fish and Wildlife
Service or the Forest Service, or what States do.
For me, there is really not much alternative because the
law is the law. We should find a compromise that works, and
provide the leadership for a compromise. If we pass something
here that is effective, then we are going to get the
cooperation of Federal, State and local agencies.
An example that comes to mind, is the Safe Drinking Water
Act. We found a common sense balance, and got the job done.
Another example is a bill that I am introducing. It is a
mining reclamation cleanup bill. The States are cleaning up
hardrock mine sites, abandoned mines, but they are doing
nothing about the water. The water just continues to leak out
and contaminate. They are doing nothing about the water because
of the Clean Water Act. There is virtually no way in the world
a non-mining entity, a city or a town, can find the money to
comply with the standards of the Clean Water Act; they are so
stringent. I must say in my State, and I know it is true in
most other States, polluted water is still running downstream,
even though the abandoned mine site has been cleaned up.
So what is the solution? My idea is to allow States to
submit a remediation plan to the EPA with less than the
standards of the Clean Water Act, but still with some kind of a
cleanup. Either we have some cleanup, or no cleanup of the
water. My view is that some cleanup is better than none.
The same general philosophy applies here to the Endangered
Species Act and habitat conservation plans. Either we do
something or we do nothing. In my view, something is better
than nothing.
Perfection is not the enemy of the good. Let us do
something good here. It is not going to be perfect. It cannot
be perfect. We live in a democratic society. Everybody has got
a different point of view. So, by definition, it is not
perfect.
So, again, I appreciate your holding the hearing, Mr.
Chairman. And I implore all of us to get this problem solved,
and put partisan politics aside. This place is much too
partisan--this Congress, this Senate, this House. It is the
most partisan Senate I have seen since I have served in the
Senate, and it is not helping the country one bit.
We have done a pretty good job on this committee, in some
cases, in passing nonpartisan bills. The highway bill comes to
mind, but nothing gets accomplished in this Congress unless
there is agreement. Whenever there is partisanship, nothing
gets accomplished. There is a lot of breast beating and a lot
of complaining about the Government and a lot of finger-
pointing. But that is not why the people elected us. They
elected us to solve problems; not to find problems, but to
solve them. I hope that we solve this one.
Thank you.
Senator Crapo. Thank you very much.
We will now move to the first panel. And as I call your
names, we would ask you to come forward and take a seat at the
table.
Panel No. 1 is composed of Mr. Eric Glitzenstein, counsel
for the Spirit of the Safe Council, the Defenders of Wildlife
and Other Environmental Organizations; Mr. Rob Thornton,
counsel for the Orange County Transportation Corridor Agencies
and Other Intervenor-Defendants in the Spirit of the Safe
Council versus Babbitt litigation; and Mr. William Pauli,
president of the California Farm Bureau.
I would like to explain, not only to this panel, but also
to the panel that will come forward following this panel, that
we do have a 5-minute time limit requirement. And I can assure
you that your time will run out before you are done saying what
you want to say.
[Laughter.]
Senator Crapo. And we ask you to watch the time limits,
because we are all very busy, and we like to maintain the
opportunity for some give and take in questions and answers
between this panel here and you.
And we do read your written testimony very carefully, and
it will be made a part of the record. So if you do not get a
chance to go through your entire written testimony in your 5
minute presentation, do not feel that it has been lost or
wasted. And please follow the time requirements.
Mr. Glitzenstein, we would like to start with you.
STATEMENT OF ERIC GLITZENSTEIN, COUNSEL, SPIRIT OF THE SAGE
COUNCIL, DEFENDERS OF WILDLIFE AND OTHER ENVIRONMENTAL
ORGANIZATIONS
Mr. Glitzenstein. Thank you, Mr. Chairman and members of
the subcommittee. I appreciate the opportunity to be here and
talk about these very important issues.
My name is Eric Glitzenstein. I am a member of a public
interest law firm, Meyer & Glitzenstein, which represents many
environmental organizations on issues relating to
implementation of the Endangered Species Act, and HCP issues,
in particular.
I am providing my own views, based upon rather extensive
involvement in litigation, including litigation over what has
come to be known as the ``No Surprises'' Policy which, as I am
sure all members of the subcommittee know, has become a rather
controversial subject in implementation of section 10 of the
Endangered Species Act.
I think it is important at the outset for me to say that I
believe that the underlying intent of the whole HCP process was
a sound one, when it was enacted in 1982.
And as I read the legislative history, and some here may be
far more conversant with it than I am, but as I read the
legislative history, the basic concept was that there would be
a tradeoff, in exchange for permission to take members of an
endangered or threatened species, which I think all would
agree, is a rather extraordinary kind of permission to give
someone with regard to a species already deemed to be on the
verge of extinction, the applicant for that permit would have
to prepare a habitat conservation plan.
And the word ``conservation,'' as defined in the Endangered
Species Act, has very specific meanings. These are activities
which must promote the recovery of the species, help bring the
species to the point where it no longer requires the protection
of the Endangered Species Act.
So I think the concept underlying the HCP process was a
sound one. We fear that when we look at some of the HCPs which
have been, in fact, adopted and approved, especially by this
Administration over the last number of years, many of these
HCPs, regrettably, do not meet that basic set of requirements
which we think was included in the 1982 amendments.
I have one quick comment on a point that was made by
Senator Baucus involving the balance and how we strike a
balance on these kinds of issues. Certainly, trying to strike a
balance is always desirable. And reaching an appropriate
compromise is always a desirable policy objective.
The problem, of course, as you all are intimately aware,
when you are dealing with endangered species, the room for
maneuverability and flexibility is, by definition, much smaller
than it would be in other kinds of circumstances. These are
species which already have been determined by scientists to be
facing the prospect of becoming extinct in the foreseeable
future.
So I think one of the things for this subcommittee to keep
in mind is, one of the objectives has got to be to prevent
species from getting to the point where they actually have to
be put on the list of endangered or threatened species. Because
that is where opportunities for compromise and dialog and
coming up with flexible solutions will be much greater than
after a species is already in the emergency room, so to speak,
and the opportunities for that kind of flexibility are, by
definition, much smaller.
In my testimony, I give some examples of what I think are
HCPs which have not accomplished the objectives that Congress
originally set out. One of them involved a species known as the
Alabama beach mouse, which was listed in 1985, because its
habitat had already been drastically reduced.
Since it was listed as endangered in 1985, the Fish and
Wildlife Service proceeded to approve at least five or six
additional incidental take permits and HCPs, which allowed much
more habitat to be destroyed, leading a Federal Judge, the
Chief Judge of the Alabama District Court, to conclude that
several of the most recent HCPs were, in that Judge's words,
devoid of rationale basis, because they did not provide for the
actual conservation of the species in exchange for the take
that was being permitted.
The mitigation measures ranged from what we would submit
are truly laughable mitigation measures such as warning
children not to run across sand dunes where there is an
endangered mouse--and suggesting that that is actually going to
help prevent that species from being harmed, to what the Judge
decided was an extraordinarily paltry sum of money to
compensate for a rather substantial loss of habitat.
So I think that while there may be success stories which
are worth learning lessons from, we also need to learn lessons
from the very poor HCPs, which scientists and Federal Judges
have now agreed have been approved.
In terms of a couple of the policies that I have focused on
in the written testimony, obviously, as I mentioned, ``No
Surprises'' is a big concern of many in the environmental
community and the scientific community.
I think if you want to put that policy in perspective, it
is useful to imagine the following scenario. Tomorrow, the Food
and Drug Administration announces that henceforth, anyone who
has received a license to market a drug or a medical device
will receive an unprecedented guarantee that for the entire
life of that license, even if we learn things about that drug
or that medical device that threaten people in ways never
previously anticipated, the recipient of the license will
receive a guarantee that the license conditions will never be
changed, no matter how much of a risk that may pose to the
health of the public.
Or with the Nuclear Regulatory Commission, we guarantee to
nuclear permittees that for the next 50 years, even if we learn
new concerns about the design of the nuclear power plant, we
will never change the conditions under which that plant is
permitted to operate.
I think it is fair to say, however you come out on the ``No
Surprises'' issue, it is a drastic departure from the set of
assumptions that go into most Federal permitting and licensing
approaches.
If you look at what the Administration has done, the lesson
to learn here is, if you are going to provide for any kind of
``No Surprises'' assurance to the holders of incidental take
permits, at least ensure that when surprises occur--and
scientists say they will occur all the time, because nature is
inherently variable and changeable--when they occur, ensure
that there is some mechanism by which changes to the plans and
the permits can take place. And that means providing a
guaranteed supply of funding, so that, in fact, those kinds of
changes can occur.
And, also, we should recognize that there is variability in
nature, and that you have to ensure that there can be different
kinds of guarantees for different kinds of permits and
different kinds of species.
In the written testimony, I also talk about problems with
public participation in the process, and how that has broken
down. And, obviously, we would strongly suggest that any
approach to this issue take into account the need to involve
the public and independent scientists.
Thank you.
Senator Crapo. Thank you very much, Mr. Glitzenstein.
Mr. Thornton.
STATEMENT OF ROBERT THORNTON, COUNSEL, ORANGE COUNTY
TRANSPORTATION CORRIDOR AGENCIES AND OTHER INTERVENOR-
DEFENDANTS IN SPIRIT OF THE SAGE COUNCIL V. BABBITT, IRVINE, CA
Mr. Thornton. Mr. Chairman and members of the committee, I
am pleased to be here. My name is Robert Thornton. I am
appearing today as counsel to the Orange County Transportation
Corridor Agencies, which are two regional transportation
entities in Orange County, CA, that have played a leading role
in the Southern California Natural Community Conservation Plan.
I had the privilege of accompanying Senator Chafee a year or so
ago on a tour of the nature conservation planning areas.
I have labored most of my professional career to try to
make the Endangered Species Act work. I am proud of the fact
that I was the original advocate for what became the HCP
provisions of the Act. And I have represented small landowners,
large landowners, farmers, energy companies, timber operators
on a variety of HCPs over the last 20 years.
I have been coming back here now to Washington, after
having worked here several years, for 20 years. And I am always
struck by the ebb and flow of the testimony regarding the
Endangered Species Act.
I remember testifying before the House committee in 1992.
And the concern on the part of the environmental community at
the time was, how do we bring landowners to the table, because
the Endangered Species Act, section 9, the hammers in the Act
were not working to promote habitat conservation on private
lands.
We could not bring landowners to the table to deal with, as
Mr. Glitzenstein commented, dealing with the problem before the
species are in the emergency room.
And the consensus, at that point in time--and, of course,
that was a period of time when, politically, the Act was under
attack--the consensus within the environmental community was
what we need to have regulatory incentives. We need to have
financial incentives. We need to encourage landowners to do the
right thing, and to come to the table and engage in proactive
planning.
Habitat conservation plans and the ``No Surprises'' Rule
are absolutely essential, in my experience, to bring landowners
to the table.
Now I want to deal directly with Mr. Glitzenstein's comment
and the criticism that one hears of HCPs and the ``No
Surprises'' Rule. And that comment is, ``Well, gee, biological
systems are full of surprises. How can you have a so-called `No
Surprises' rule?''
The issue has been mischaracterized. We acknowledge--I
certainly acknowledge that biological systems are full of
surprises. That is not the issue. The issue is, who pays for
those surprises?
Fundamentally, the assurances rule is a mechanism to share
the risks and burdens of habitat conservation between the
Federal Government and, ultimately, the Federal taxpayers and
private landowners. And it is an arrangement that is struck
that in exchange for voluntary consensual conservation that a
landowner commits to now, he will receive certain regulatory
assurances that in the future, the deal will not be changed.
As Secretary Babbitt has said it best, I think eloquently.
I can not do any better. ``Take a bite at the apple. Take one
good bite, and then a deal is a deal.''
The problem that we have is, if you want landowners to
engage in multi-species planning and address unlisted species,
species that are not protected by the regulatory protections of
the Endangered Species Act, if you want landowners to commit to
conservation of corridors or linkages, which are not occupied
with endangered species and, therefore, are not subject to
regulation under section 9, you have got to provide them
incentives. And regulatory incentives are the most powerful
incentives that can be provided.
The problem that we have with our legal systems--it is not
a problem; it is a reality--is that we have private property
rights in this society. We have the fifth amendment to live
with. We know, as a matter of law, that when that landowner
signs that grant deed over to a conservation agency or to a
public agency, that his property rights are transferred. They
are extinguished.
And so the problem is, how do you rationally tell a
landowner that you want him to sign that grant deed. You want
him to provide funding for long-term conservation of endangered
species, but you also want the ability to come back in 5 years
or 10 years or 15 years and say, you know we have just
discovered something new about this species and we have changed
our mind. You have got to give us more property.
It is not realistic. If you want landowners to participate
in the endangered species conservation activities, and you want
to keep species out of the emergency room, then regulatory
assurances are essential.
Now in the limited time, Mr. Chairman, that I have
available, I have provided some graphics that sort of take you
from the macro to the micro, to talk about what is going on in
California, an area that I am very familiar with. I will just
hold some of these up.
The bright pink graphic tells the State of the issue in
California. These colors represent basically the extent of the
conservation needs in California. I see I am running out of
time.
The next graphic shows the conservation planning efforts
that are under way in California. I have to say, these are
driven almost entirely by the HCP policies of the Babbitt
administration and, in particular, the ``No Surprises'' Rule.
Finally, the last graphic I want to show is the
conservation efforts that are emerging out of what has come to
be called the Southern California Natural Community
Conservation Plan.
The green shown on this map represents several hundred
thousand acres of private land that is in the process of being
put into conservation status, with little or no cost to the
Federal Government or the Federal taxpayer.
And, again, the essence of the ``No Surprises'' Rule is, if
you want to get that level of conservation commitment now, up
front--and Senator Chafee saw these areas with me--then you
have got to be prepared to provide regulatory assurances to
these landowners.
With that, I would be happy to answer questions. Thank you,
Mr. Chairman.
Senator Crapo. Thank you very much.
Mr. Pauli.
STATEMENT OF WILLIAM C. PAULI, PRESIDENT, CALIFORNIA FARM
BUREAU, SACRAMENTO, CA
Mr. Pauli. Good morning, Mr. Chairman and members of the
committee.
I am Bill Pauli. I grow wine grapes and Bartlett pears and
Douglas Fir timber in northern California, which is in
Mendocino County. I am president of the California Farm Bureau,
and I am here today on behalf of the American Farm Bureau and
the California Farm Bureau.
I welcome the opportunity to present testimony on the
practical implications of the HCP progress in agriculture. We
have submitted a long written testimony that I hope you will
have an opportunity to review and digest.
This is extremely important as HCPs, in general, simply do
not work for farmers and ranchers. In fact, our experience in
California with the regional multi-species HCPs is that they
are tools for encouraging urban sprawl and magnifying the loss
of good farm land by forcing productive land into public
habitat preserves.
Generally HCPs fall under two types: single HCPs and multi-
species HCPs, like we have in California. The first, as shown,
works for large, industrial or institutional landowners, hardly
applicable to many small farmers.
The second type of HCP is expensive and is time consuming,
two factors that this type of program can not be used in
agriculture. Only those changes in the use of the land can
afford both the time and the money needed to participate.
Land developers can use this program as they develop part
of the land and mitigate for the rest. It is a speculative use
of the land that has nothing to do with the present activity on
that land. The costs are passed on to the purchasers of the
property that have been developed. Farmers and ranchers can not
do the same.
Additionally, HCP authority also imposes permitting
requirements on agriculture for activities that do not
currently require permits. Often, such activities are normal
farming practices that are necessary to continue the use of the
land for farming purposes and for a family farming operation,
that can not afford the cost nor deal with the paperwork
requirements for the permitting process. It is no wonder that
this land then becomes available for mitigation, development,
or for sale.
We would like to emphasize that given the proper protection
and incentives, farmers and ranchers can play an important role
in the protection and recovery of species. In fact, the
agencies must have the cooperation of farmers, ranchers, and
private property owners if the Endangered Species Act is going
to work.
We do a better job of protecting species than the
Government. And we contribute to the local tax base, provide
jobs, and are productive, while still supporting wildlife.
Farmers and ranchers who own most of the suitable species
habitat are especially important if ESA is to succeed.
We hope that this committee would recognize the wide range
of interest and agree that incentive-based programs work. When
both the Farm Bureau and the Environmental Defense Fund can
agree that we solve problems for species and landowners when we
take this approach, we have a situation that begs for
congressional action.
The Farm Bureau has testified before this committee no less
than six times in the last four Congresses, seeking such
incentive programs as the Critical Habitat Program. Everyone,
it seems, agrees that such a program will help species and tap
into the conservation ethic of all farmers.
Our rural communities reel under the regulatory excesses of
the Endangered Species Act. Developers develop land that
farmers can no longer afford to farm.
Mr. Chairman, I know that your State is starting to get the
taste of what California has gone through for the last 10
years. I hope that you can learn from the mistakes made in
California. Lawyers, bureaucrats, technicians, and politicians
do not save endangered species. Farmers and ranchers can and
want to. We are hoarse with telling Congress this fact.
Take away the regulatory disincentives that create
financial ruin in our rural areas. Provide funding and the
commitment to put in place programs that work on the ground for
not only the people, but the species.
In the few seconds that I have left, let me say a couple of
quick things. You know, you have got two concepts here. You
have got industrial farming versus rural farming, agriculture
as we have always known it.
We provide habitat on our fence lines, around our creeks,
around our streams. If you want us to destroy that, then
continue with the kind of regulation you are talking about
here.
The easiest way for me to destroy habitat and to protect
myself is to eliminate those areas along my fence lines and my
creeks. Because if I protect the species that live there, some
regulatory comes in says, ``Look, you have got these species.
Now you are going to have to broaden that.''
Why are the species there? Because they like where they
are. They like what I have been doing. I have been protecting
those species.
Thank you, Mr. Chairman.
Senator Crapo. Thank you very much, Mr. Pauli.
I will ask the first series of questions. And I will just
start out with you, Mr. Glitzenstein.
From your written and your oral testimony, it is my
understanding that one of your concerns with the ``No
Surprises'' rule is that it essentially shifts responsibility
for the funding, or for the maintenance and protection, of the
species from the private landowner to the Federal Government.
And the question I have is that if endangered species is a
significant national priority, what is the philosophical
objection to having the Federal Government participate in the
recovery of species?
Mr. Glitzenstein. I do not think there is any objection to
having the Federal Government participate. And it does in a
number of different ways, under the Act.
I think the concern with shifting that responsibility under
section 10 is that it really reverses decades, literally, of
environmental regulation precedent, in which the basic concept
is that the person who receives a permit to, in some fashion,
harm the environment--and that is what an incidental take
permit is--is responsible for paying for the damage associated
with that, including paying for changes that might be
necessary.
In my testimony, I point out that that is basically the
State of the law under the Clean Air Act, under the Clean Water
Act, under the Resource Conservation and Recovery Act, and
virtually every other field of Federal environmental law. So
this is truly a revolutionary change in a historical approach.
Having said that, if I could just add, I think there is an
important philosophical question there. But I think the
practical question is the greater one.
Under the current scenario, where the burden for surprises
is shifted to the Federal Government, we have a Fish and
Wildlife Service and a National Marine Fisheries Service, which
are woefully incapable, financially, of paying for the changes
that might be necessary.
We have Jamie Clark going in and filing affidavits in
Federal court--and I can provide numerous examples to the
subcommittee--saying we do not have enough money even to meet
our mandatory, nondiscretionary duties under the Act. We do not
have enough money to list species and designate critical
habitat.
So how in the world could we expect the Federal Government,
under the current scenario, to take on the very obviously
substantial burden of dealing with all of these unforeseen
circumstances?
So however you resolve the philosophical question--and it
is a good one--the more important question is, if you are going
to resolve the issue in favor of the Federal Government taking
on that burden, at least make sure that there is an adequate
source of funding, so that the Federal Government can do what
it claims it should do, under the ``No Surprises'' approach.
Senator Crapo. Are you aware of, or do you have any,
information indicating what the cost would be to the Federal
Government, if the funding were made available to implement the
``No Surprises'' policy, and have the Federal Government
participate as it should?
Mr. Glitzenstein. That is a very good question. I have
never seen that. I think, obviously, one of the problems is,
these are, by definition, unforeseen circumstances.
I would imagine the almost insurmountable difficulties in
aggregating all of the unforeseen developments that could take
place and affect incidental take permits.
Senator Crapo. That is what I suspected. However, I also
took from your answer, and I think I would agree with it, that
the cost could be conceivably extremely high. We are talking
about a very expensive cost here, in terms of recovery of
species.
Mr. Glitzenstein. Well, I think one of the things to keep
in mind is--and I think Mr. Thornton would probably agree with
this--the way in which the policy has currently been evolving,
there has been a distinction drawn between what are called
changed circumstances, which are different conditions which can
be anticipated.
They may not necessarily happen. But in an area which is
hurricane prone or subject to various kinds of natural
fluctuations, under the existing policy, the incidental take
permit holder can be held responsible for those.
If you look down the road in, say, 10 or 20 years, the
plight of the species can change. Therefore, we should have
what are called--and I know the scientific panel testified on
this--adaptive management provisions.
The ``No Surprises'' rule is intended to deal with what I
think we all agree has become defined as a somewhat narrower
set of circumstances--unforeseen developments, which even
scientists who are familiar with the area and familiar with the
species can not anticipate.
So I think that the amount of money, cumulatively, may be
much less than if you were dealing with responding to all kinds
of changes which could take place, both changed circumstances,
as they have been defined, and unforeseen circumstances. It may
not be quite as expensive as you might surmise.
Senator Crapo. All right. Mr. Thornton, what is your
response to the argument that this is a different concept than
is pursued in any of our other environmental laws; namely,
having the Federal Government pay for the consequences of the
recovery or the action required?
Mr. Thornton. Well, I do not think that there is any
Federal environmental statute that asks a landowner to give up
property rights over a long period of time in order to address
an issue that is not mandated under the Federal law. And that
is what HCPs are all about.
The essence of Mr. Glitzenstein's argument is, why don't
you just leverage these requirements out of landowners, in
return for obtaining a permit?
The fallacy of that argument is that HCPs address what the
environmental community said they wanted addressed; that is,
they want large-scale, habitat-based plans that address species
that are not on the Endangered Species list in addition to
those that are.
They want corridors. They want linkages. They want all of
the things that the National Academy of Scientists and the
conservation biologists tell us constitutes good conservation
planning, good preservation design. In order to obtain those
kinds of commitments, then you have got to provide certain
incentives.
Now we have a representative from the Farm Bureau. I have
represented farmers. You have a different problem that exists
with farm operations. A number of farmers in California, quite
frankly, because of the Endangered Species Act, make sure that
their property remains tilled from stem to stern, year after
year, without regard to whether they are growing crops on it;
why? Because they do not want to have the regulatory burdens of
the Endangered Species Act imposed on them.
So if we want to encourage farmers to engage in the kind of
activities that will provide conservation benefits, then you
have got to provide them regulatory assurances. That is what
the HCPs are all about.
Senator Crapo. Thank you. And Mr. Pauli, I know my time is
running out here for my questioning period. But I think the
essence of your testimony is that the HCPs, as they are being
implemented, simply are not beneficial to agriculture.
Can you see a way in which HCPs could work in a beneficial
manner, that would provide incentives or encourage farmers to
participate?
Mr. Pauli. Well, you know, one of the things that we have
been trying to do is to find solutions to protecting the
species. I do not think that anybody is opposed to the concept,
how do we effectively do it, recognizing the amount of
urbanization we have in so many parts of the country; and how
can we be effective in doing it.
It has to be through an incentive-based program that does
not put farmers in jeopardy such that when they get one lizard
or one kangaroo rat, even though they are providing a lot of
habitat, will lose the farm or the ranch.
And how do you do that? It is going to have to be with a
balanced, multi-species approach that tries to improve the
habitat for all species. Where some of us have this problem
under ESA, we want to try to protect as much habitat as we can.
Ultimately, we all have to try to collectively do that.
By the same token, there seems to be a drive on the part of
many of the regulators, particularly from the Fish and Wildlife
Service, to find a reason to put us out of business. Their real
objective here is to take the land; not just let us continue to
farm, find a way to farm, to balance off what it is we are
doing; but really trying to extract our property from us.
In the West is where we have such a conflict. These species
have been there for years and years, and they are still there,
but suddenly, everything we are doing is wrong, and they want
to take our ground from us.
In the West is where we have this real conflict. If what we
are doing is so totally wrong, then why do the species still
exist there? Yet, we are finding ways to improve the habitat,
improve the balance of the species, overall.
We are going to have to recognize, however, that some
species may become extinct. We have been good stewards, but
there are a lot of other impacts, from urbanization and growth
around the country.
Senator Crapo. Thank you. My time has expired.
Senator Chafee.
Senator Chafee. Thank you, Mr. Chairman.
Mr. Thornton, you listened to Mr. Pauli when he gave his
testimony. And it was kind of a discouraging presentation. He
indicated that, in his view, the Endangered Species Act, and I
am paraphrasing him a little bit, worked exactly contrary to
its given purposes. Is that a fair summation of what you said,
Mr. Pauli?
Mr. Pauli. It certainly has not achieved its overall
objectives of protecting species.
Senator Chafee. Yes, and then he gave the illustration of
the growth along river banks, stream banks, where endangered
species were surviving.
But now there is every incentive, as I understood what Mr.
Pauli said, for the farmer to get rid of that protective
growth, because they might find an endangered species there.
And then all kinds of problems arise.
Although I do think he is going a little far when he
indicated that what the Government really wants is to take the
farmers' land, I do not think that is quite fair.
What do you say to all that? Here you are embracing, as I
understood your testimony, the ``No Surprises'' policy. Why
would that not work for Mr. Pauli?
Mr. Thornton. Well, Senator, in my view, it can work,
properly implemented. I think that farmers have some unique
problems that clearly they have a setting that is different
than an urbanized HCP. The HCPs in agricultural areas are
different. I have worked on some agricultural HCPs.
I completely agree with his testimony that the cost of
processing a separate individual section 10 permit for a small
farmer is prohibitive. Therefore, you have to do it on a
municipal or regional basis.
I have been working in Kern County, CA, for the last 10
years, which is a major agricultural area, working with farmers
and with energy companies, to put together a plan that is more
of a market-based plan that just does not lock land up and not
use it, but rather tries to provide various forms of assurances
to encourage farmers to manage their land to retain habitat
values.
The problem that I have seen is that the Act, as it is
currently structured and implemented, tells farmers if they get
a Tipton kangaroo rat on their property in Kern County, they
will not be able to put a crop in next season. It is not a good
statute because the message to that farmer is, make sure there
are no Tipton kangaroo rats on your property.
But I think the HCP process can work. Clearly, agriculture
presents a set of issues that are different from the urbanizing
area.
Senator Chafee. It is apparent that we will not be able to
pass on the Senate floor and by both legislative bodies, a
radical reform of the Endangered Species Act. We tried that
under Senator Kempthorne's leadership, and we just did not
prevail.
But it seems to me that there is great merit, I believe, in
the ``No Surprises'' policy. Are you a ``No Surprises''
supporter?
Mr. Thornton. Absolutely, Senator.
Senator Chafee. And how about you, Mr. Glitzenstein?
Mr. Glitzenstein. I would certainly disagree with the
current rule.
If I could just make one comment about that. I think that
one of the important areas in your question is that there are
many different kinds of HCPs and many different kinds of permit
applicants. The current rule says, ``thou shalt give ``No
Surprises'' guarantees to each and every permit applicant, no
matter who you are, whether you are a small farmer or a large
multi-billion dollar timber company, no matter what species is
affected, no matter how long the permit, whether it is for 2
years or 100 years.
The one thing I would really urge this subcommittee to take
a look at, at an absolute minimum is at least give the Fish and
Wildlife Service some flexibility to negotiate when ``No
Surprises'' guarantees may be appropriate, to a particular
farmer or someone else, and how long the guarantee should be.
Some of the environmental groups have suggested you can
give a guarantee in one situation, that a permit will not
change for 5 years; but because of variability in nature in an
area and a big landowner, 20 years would not be appropriate.
But the current rule, which I am absolutely opposed to, as
is every environmental group who commented on it and virtually
every conservation biologist says that you must give ``No
Surprises'' guarantees for every permit for the entire length
of the permit, no matter how long it is. That, I submit, is a
totally irrational policy.
Mr. Thornton. Senator, if I might just quickly comment.
This is the difference between the view from Washington and the
view down in the trenches, as I like to call it, the ESA
trenches.
Believe me, every HCP that I have been involved in, and I
have been involved in over 2 dozen major HCPs, are very heavily
negotiated, and the Fish and Wildlife Service does not provide
blanket assurances.
There are negotiations over what species are covered. There
are negotiations over the extent of the mitigation and
minimization measures. There are negotiations over the term of
the conservation agreement.
There is a whole scope and variety of negotiations that go
on. And believe me, that rule is not being interpreted down in
the field to provide blanket assurances to landowners.
Mr. Pauli. Can I make one comment? I think, Senators, one
of the things we have to keep in mind here, and sometimes it is
an over-simplification, but I do not really think it is. We
have got very small versus very large. We have very different
geographical locations in terms of the type of landscape and
setting.
If you go to my State, California, in the southern part of
the State in the Imperial Valley are 600,000 or 700,000 acres
of irrigated land. It is high desert with 2 inches of rainfall,
a very different kind of problem. But when you go up into the
north coast, we have 40 to 80 inches of rain every year, very
unstable soils. It is completely different. Yet, we have this
one big plan. Then, we have big property owners and little
property owners who cannot deal with the regulatory process,
where the best lands really are, and some of the best species.
So you have got to keep in mind, it is not a one-kind-of-
thing-fits-all. And there are two other things. You have got
the small and the big----
Senator Chafee. Well, we are on my time here, so if you
could summarize quickly.
Mr. Pauli. OK, you know, Fish and Wildlife Service has lost
the respect of the property owners. Because as you make an
agreement, through all these negotiations, expense, and time,
and the next week, you have got a different person, a different
interpretation, and a whole other problem. So you need to try
to look at that issue. I mean, you talk about an agreement, but
it can not keep changing every week and every year and every 6
months. That is a real problem.
Senator Chafee. OK, thank you. Thank you, Mr. Chairman.
Senator Crapo. Thank you very much.
Senator Thomas.
Senator Thomas. Thank you. First let me just say, Mr.
Chairman, that I do not think what we tried to do is a radical
change to ESA. It does need to be reauthorized, but I think it
can be changed without being radical. What is radical in Rhode
Island is not radical in Wyoming, I might add.
[Laughter.]
Senator Thomas. Mr. Glitzenstein, is this your list of
about 150 Ph.D.s and so on?
Mr. Glitzenstein. That is one letter that was submitted. I
think actually Ms. Hood in her testimony in July referred to
another letter, which had many others.
Senator Thomas. Would you think that all the nominations
and listings are a result of full and complete scientific data?
Mr. Glitzenstein. I think in the listing process, certainly
there are examples where it may not comport completely with
what scientists would prefer. These days, I think many species
are not being listed that should be, because of what scientists
would suggest.
Senator Thomas. Do you think through a windshield, driving
through a county and doing it on State and county lines is
scientific?
Mr. Glitzenstein. I am not familiar with that particular
example.
Senator Thomas. I am, and that is what has been done.
You point to everything being scientific. The fact is that
nominations are not in the least scientific.
Mr. Glitzenstein. I am sure you mean petitions.
Senator Thomas. Petitions, yes, sure.
Mr. Glitzenstein. Well, the petitions that I am familiar
with, with the groups I work with, I must unfortunately
disagree with you.
Senator Thomas. OK.
Mr. Glitzenstein. Because the ones that I have seen, and I
am not saying every petition that has ever been submitted has
been scientifically sound, but the ones I am familiar with,
with the groups I work with, are very thoroughly researched,
and supported by as much science as possible.
Senator Thomas. Well, the ones I work with are not. My
point is, I do not think you can make the generalization that
the scientific end does everything, and that we ought to just
live with that. There are lots of things that go into this
besides the scientific end, as a matter of fact.
Mr. Glitzenstein. Well, I agree.
Senator Thomas. Do you consider that a listing of jumping
mouse changes for a number of years is the same as a nuclear
listing, a nuclear power plant?
Mr. Glitzenstein. Well, what I am trying to show with that
example is, the basic way in which we have approached
environmental regulation in this country.
I think it is the same in the sense that if you are going
to establish a set of criteria for getting a permit to take an
action which would otherwise be unlawful, and it is critical to
stress that the taking of an endangered species, under Federal
law, is unlawful.
And Congress, when it passed that requirement, said that it
regarded endangered species as being of the highest possible
priority, that the loss of any species would be incalculable.
And some of these species which people----
Senator Thomas. I understand. It is the idea that you do
not mow your ditches or you do some things, that is hardly
equal to a nuclear change.
Mr. Pauli, have you had any experience with the 4(d) Rule?
Have they used that at all with farmers and ranchers?
Mr. Pauli. Yes, Sir, they have attempted to, in California.
And I am not as familiar as I would like to be on that. I would
prefer not to comment on that.
Senator Thomas. But that is an opportunity, I think, is it
not, to make it more acceptable, to make it more workable?
We have one pending, as a matter of fact, that has not been
completed now for a number of months that could make it
workable, but has not been used.
Mr. Pauli. One of the problems that we continue to find
comes back to the relationship with the people, back to your
windshield kind of view.
The people on the ground do not have the kind of experience
that many of us who farmed that ground or lived in that
community for years and years have. And they simply do not
understand the biology.
One of the real problems is the credibility of the
biologist. We talk about science. We say, ``Well, we should not
have a contract for more than 5 years because, gee whiz, the
science might change.'' Well, the science might change in a
year or a month, but it also takes a long time for these things
to trend.
In California, we will have a drought for 5 or 7 years, and
things are completely contrary to where they were before, when
you were in rainy sessions for 5 or 7 years.
Senator Thomas. Mr. Thornton, you have generally
represented larger users, is not that correct, by the look of
your maps and so on?
Mr. Thornton. Well, no, Senator, I have represented public
agencies. I have represented small landowners, large
landowners, small developers, small farmers.
Senator Thomas. Well, is not it easier for Chevron to do
something or a Weyerhaeuser for 100,000 acres, than it is for
someone with 250 acres?
Mr. Thornton. Absolutely, clearly, large landowners have
greater flexibility and more of the ability to work within the
system.
What has worked well, in my experience is, instead of a
small landowner to attempt to process his own permit, but
rather to work through a larger regional conservation plan.
That is what we have done in Kern County. That is what we have
done in various parts of southern California. And that is
really more efficient. So then the local governmental agency
takes on the processing chore of processing the plan.
Now that does not make it an easy process. Some of these
efforts literally have taken a decade or more to reach the
sufficient consensus and wherewithal to get the plan together.
But that is the way the small landowners have to do.
The point that I try to make in my testimony is, we have
got to come up with incentives. And regulatory incentives are
just part of it. There has got to be financial incentives.
Landowners, especially small landowners, have to see some
reason to keep their property in conservation status.
Senator Thomas. Thank you, Mr. Chairman.
Senator Crapo. Thank you.
Senator Baucus.
Senator Baucus. Thank you, Mr. Chairman.
Mr. Thornton and Mr. Glitzenstein. Let us assume the two of
you were to go out. Do you drink beer?
Mr. Glitzenstein. I do. I have been known to.
[Laughter.]
Senator Baucus. Let us assume the two of you were to, this
evening, just go out and have a couple of beers together, and
just sat down someplace, out of the spotlight of this hearing,
away from your clients, just two guys that know each other
pretty well, and looked at this issue pretty well.
You are two fellows that are well meaning. I mean, you are
doing what you think is right for this country. You are red-
blooded Americans.
Where would you two agree on how you deal with ``No
Surprises'' in habitat conservation plans? Because there is
obviously a tension here. Landowners, appropriately, are
concerned about all these Feds coming down. They are always
changing their minds all the time. And most landowners are good
people. They want to do what is right.
On the other hand, we have got a very important national
policy. It is protecting endangered species. It is extremely
important. Because we do not want a society where we wake up
one day and find the species gone, or at least a significant
deterioration, as is the case in a lot of other countries.
So there is an inherent tension between preserving species,
you know, and adaptive management, say, on the one hand, and
``No Surprises'', on the other.
So where would you two start? You know, you are talking to
each other. What is your first name?
Mr. Glitzenstein. Eric.
Senator Baucus. Eric. What is yours?
Mr. Thornton. Rob, Senator.
Senator Baucus. Rob?
Mr. Thornton. Rob.
Senator Baucus. OK, so Rob, you say, ``Eric, what do you
think about this?'' And Eric says, ``Yes, Rob, that is a good
idea. Yes, you know, I hear what you are saying.'' So Eric and
Rob are having a couple beers together, alone.
Mr. Thornton. Senator, I am not sure where Eric and I would
come out.
Senator Baucus. Well, I am asking just the two of you.
Mr. Thornton. Right.
Senator Baucus. Please answer my question.
Mr. Thornton. But, actually, it is an interesting question,
because I went through that exercise, 2 years ago, with
representatives of the World Wildlife Fund, the Environmental
Defense Fund, the Center for Marine Conservation, the National
Wildlife Federation. And we spent about a year, along with
representatives of the National Realty Committee----
Senator Baucus. That is a lot of beer.
[Laughter.]
Mr. Thornton. That is a lot of beer. A lot of beer was
consumed, Senator, I assure you.
And there was a consensus reached. And it was ultimately
articulated in what came to be known as the Endangered Species
Working Group. Unfortunately, that particular proposal did not
seem to get legs here on Capitol Hill.
Senator Baucus. I am sorry, I am not worried about the
process, here. I am just asking about substance.
Mr. Thornton. Well, the substance, I would say----
Senator Baucus. We do not have a lot of time here. So just
cut to the quick. Where do the two of you tend to agree?
Mr. Thornton. I would say that the consensus would emerge
around the quality of the planning that is done. The level of
public participation, which the environmental community is
concerned about, although I think it is adequate in the
existing process. Some commitments regarding some funding
commitments in the future, to address unforeseen circumstances.
And that might mean setting up a mechanism in Congress to
establish some form of trust fund to fund unforeseen
circumstances.
Senator Baucus. Eric, what do you think?
Mr. Glitzenstein. I can not disagree with what Mr. Thornton
has said. I think, critically, we both agree that there has to
be some guaranteed form of funding, when these changes are
necessary.
We have this philosophical concern that we talked about.
But putting that to one side, somebody has got to pay for these
things. And under current law, there is no clear answer to how
that is going to happen.
I think public participation is critical. I agree
completely with that. I think independent scientific input on
the validity of plans is critical. I agree with that. I would
hope that the one other thing we could reach agreement on is
that one-size-fits-all does not make any sense.
Senator Baucus. OK, let us put the funding aside for a
second. Do you agree with the concept of more public
participation?
Mr. Thornton. I, philosophically, Senator, am not opposed
to it. And when I hear this criticism, and I offer my response
to my environmental friends, which is to say----
Senator Baucus. Slow down, we are not talking about
criticism, here.
Mr. Thornton. OK.
Senator Baucus. Our goal here is to come together.
Mr. Thornton. I think these planning processes have to have
significant public participation for them to work.
Senator Baucus. So more than currently is the case?
Mr. Thornton. I think there is a lot of public
participation in the plans that I am working on, but to the
extent you want to codify and make them more formalized, I
would not oppose that.
Senator Baucus. OK, besides money and public participation,
how are you going to deal with some of the changes that may
occur? How do you deal with that, or what do you think?
Mr. Thornton. I think you deal with it through adaptive
management.
Senator Baucus. What does that really mean?
Mr. Thornton. Well, adaptive management means that the plan
can change within certain parameters. And, ultimately, these
negotiations, in my experience, get down to a place where the
plan can change; how can it change, putting sideboards or
parameters on the changes that can occur that are going to be
paid for by the landowner.
Senator Baucus. Do you think that you can agree with people
in the conservation community as to what those parameters are?
Mr. Thornton. Well, in my experience, you can reach
agreement with components of the conservation community who
have, in fact, endorsed a number of these plans. You can not
reach agreement with everybody. That is clear.
Senator Baucus. Well, my time is up. Eric, if you could
just comment in 15 seconds on what Rob said.
Mr. Glitzenstein. I think trying to come to an agreement on
those points up front is critical.
Senator Baucus. On the parameters.
Mr. Glitzenstein. On the parameters, and what kind of
adaptive management there should be. But the critical feature,
also, which I hope we could come to agreement on, is that the
small farmer gets different kinds of assurances than the multi-
billion dollar timber company.
Senator Baucus. Well, that is clearly a problem.
Mr. Glitzenstein. And those things can be negotiated, as
well; how much of an assurance is appropriate, given the size
of the HCP, the nature of the species, the length of the
permits. Those things should be subject to some, I think, case-
by-case analysis. And I would hope that we could, if we sat
down, come to some understanding of that, as well.
Senator Baucus. I encourage you two to help us out here.
Congress does not lead. Congress follows. Congress does what
the people want done. So the more you guys are together, the
more we are going to solve this. The more you are apart, the
more we will not.
I am asking you participants, the experts, who know this
subject, to work this out together. Go have a couple of beers.
I do not care what it takes. Just find some way to get some
agreement here, because the more you are divided, this is not
going to be solved here.
Members of the House and Senate are going to follow their
own constituent groups and special interest groups. Money gets
spent on campaigns and you know what, and nothing happens.
Congress follows. Congress does not lead. You have got to
remember that.
So if you want this solved, you have got to get together.
You may not want it solved. If you do not want it solved, it is
not going to be solved. But if you want it solved, you are
going to have to do more than 50 percent of it yourselves, or
it is not going to happen.
Thank you.
Senator Crapo. Thank you very much.
Senator Chafee and I have no further questions at this
point. Did you want to ask any more, Senator Baucus?
Senator Baucus. No, thank you, Mr. Chairman.
Senator Crapo. We do have more questions. And we will
probably submit a series of questions to you in writing. But in
the interests of time and keeping ourselves on schedule, we
will dismiss this panel at this time. And we thank you very
much for your appearance here.
Our second panel, and please come forward, is Mr. Rudolph
Willey, president of the Northern California Presley Homes; Ms.
Brooke Fox, director of Open Space and Natural Resources of
Douglas County, Castle Rock, CO; Mr. Jim Moore, director of
Public Lands Conservation of the Nature Conservancy; Mr. Steven
Quarles, counsel for the American Forest & Paper Association;
and Mr. Don Rose, manager of the Land Planning and Natural
Resources, Sempra Energy, of San Diego.
We welcome you all. Were all of you here when I gave my
admonition at the beginning about the fact that we are going to
be seeing a red light before you are done saying what you want
to say? And please keep your eye on the light, so that we will
have time for interaction between the members of the panel here
and yourselves.
With that, we will start out with you, Mr. Willey.
STATEMENT OF RUDOLPH WILLEY, PRESIDENT, NORTHERN CALIFORNIA
PRESLEY HOMES, MARTINEZ, CA
Mr. Willey. Thank you, Mr. Chairman and members of the
subcommittee.
Before Presley purchased land in San Jose in 1997, we were
aware that the property once had been occupied by the
threatened Bay checkerspot butterfly.
We contacted the nationally recognized Stanford
conservation biologist, Dr. Dennis Murphy, who addressed this
subcommittee on July 20 on science and habitat conservation
planning. We contacted Dr. Murphy, because he was the
petitioner of the butterfly. And no scientist is more committed
to this species than he.
Stanford researchers who studied the species for decades
told us that the butterfly had abandoned the site in the mid-
1990's, and that weedy exotic grasses had virtually replaced
the host plants on which the butterfly survives, making it
impossible to recolonize the site.
Dr. Murphy worked with Presley to develop a plan to bring
the butterfly back. Even though there were no animal species on
the property, and thus, no incidental take permit required,
Presley chose to pursue a section 10 habitat conservation plan,
because it was prudent to obtain the No Surprise Assurance, and
it was the right thing to do.
We used the best scientific data available to produce a
plan with extraordinary conservation commitments, with specific
biological goals to achieve a 71-acre butterfly habitat, with
17 acres of host plants, 20 dedicated plant conservation areas,
the first agency sanctioned man-made tiger salamander pond, and
an environmental trust, to which Presley will deed over 50
percent of the 575 acres, and provide initial funding of $1.6
million for recovery and restoration, and annual funding of
$200,000 in perpetuity for professional management and
monitoring.
Given the voluntary nature and the progressive scope of the
HCP, we expected the plan to be embraced by the Service.
Senator Chafee. By the Service, you mean Fish and Wildlife?
Mr. Willey. Fish and Wildlife Service, yes, Sir.
But when we presented our draft at a large meeting, a
Service-staffed biologist simply asserted that nearly the
entire property constituted habitat for the butterfly, but did
not offer any empirical or scientific evidence to support this
assertion.
It did not matter that annual surveys confirmed a complete
4-year absence of the butterfly; nor, that the habitat was so
degraded, the species could no longer re-colonize, without
heroic restoration efforts.
The Service then failed to comment in writing on the HCP.
For nearly 4 months, we waited, called, and wrote, and even a
letter to the Chief of California Operations went unanswered.
Finally, we met with the supervisor in Sacramento, who said
he had something in writing, but wanted to talk to Dr. Murphy
before giving it to us.
He listened to Dr. Murphy. And we pointed out that unless
the Service engaged in a dialog to move this process along, we
could legally proceed anyway, without an incidental take
permit. He said he understood, and had told his staff that
unless they cooperated, they would lose their opportunity to
contribute to this project.
He said he was powerless to override or direct his
subordinates' actions, because he feared lawsuits from third
parties' special interest groups. In the end, he gave us
nothing in writing.
We secured the appropriate permits from California
Department of Fish and Game, Army Corps., and got a waiver from
the Regional Water Quality Control Board.
At every step of the way, the Service contacted these
agencies, demanding they deny the permits. But each concluded
the Service had no jurisdiction.
In June, the city issued a grading permit, allowing for
clearing the site, and work began. The Service had passed on a
section 10, was denied a section 7 by the Army Corps., and had
no grounds for a section 9. So now they elected to step outside
the regulatory process altogether.
First, they sent documents to private interest groups,
which were used to sue another Federal agency, the Army Corps.
Then, they sent the city of San Jose threatening letters and e-
mails claiming, without substantiation, that grading the site
would cause illegal take of butterfly, for which the city would
be held liable, under section 9. They demanded the city
withhold any more permits.
The city capitulated, explaining they could not upset the
Service, because it was holding up $3.5 million in Federal
funds for city projects.
So we have been at a costly dead stop for 3 months now, and
have lost a chance to construct any type of habitat, man or
butterfly, until the dry season next Spring.
We have contacted every level of the Service to get this
resolved. And, at last, 2 weeks ago, they acknowledged there
was no take, no grounds for a section 9 action.
I asked for a simple letter to give to the city of San
Jose. It arrived just this last Friday, and it was a qualified
letter, at that.
I ask you, where is the certainty in the regulatory process
for me, as an applicant? The Administration promotes HCPs. Yet,
mine was insufficient, with the species absent.
And, finally, on behalf of all endangered species, is not
this sending the wrong message, not to get involved in HCPs or
restoration efforts? The butterfly has lost. And there is no
escaping the irony, here. The developer attempts to protect and
restore the species. And the Services blocks that effort.
Thank you. I would like to make the committee aware that I
will have James Meek, Project Manager available for technical
questions, if any.
Senator Crapo. Thank you very much, Mr. Willey.
Ms. Fox.
STATEMENT OF BROOKE FOX, DIRECTOR, OPEN SPACE AND NATURAL
RESOURCES, DOUGLAS COUNTY, CASTLE ROCK, CO
Ms. Fox. Thank you.
Mr. Chairman and members of the subcommittee, my name is
Brooke Fox, and I am the Director of Open Space and Natural
Resources for Douglas County, CO.
I am honored to be here today on behalf of the Douglas
County Board of Commissioners and the Coalition for Responsible
Species Conservation to testify about our experience with the
federally listed Preble's meadow jumping mouse, and our habitat
conservation plans.
Specifically, I would like to talk a bit about Douglas
County, our HCP and ESA issues, and I will finish with just a
few thoughts.
Douglas County is located between Denver and Colorado
Springs, the two largest cities in Colorado. We are
conservative politically, and at the same time, our voters and
elected officials are committed to protecting our beautiful,
diverse landscapes and wildlife habitat. In fact, our voters
have voted consistently three times since 1994 to tax
themselves to preserve open space.
Our county's master plan, zoning regulations, and open
space preservation programs implement the county's commitment
to preserve wildlife habitat. These documents, regulations, and
programs consider wildlife, in general, and are not aimed at
one specific species.
Douglas County has successfully preserved over 26,000 acres
through our open space preservation program, and through our
development review process.
I am sure you have heard numerous stories about the time
and expense it takes to deal with the ESA. Briefly, here are a
few of ours.
The Fish and Wildlife Service in Colorado lacks the
sufficient resources to review every day and long-term ESA
issues in a timely manner. This affects us in two ways. Simpler
issues needing attention before our regional HCP is approved
take too long.
For example, Douglas County recently purchased 150 acres to
preserve Preble's meadow jumping mouse habitat and to provide
some limited public access. Of the 150 acres, the trail could
not avoid 400-square feet of mouse habitat. The required low
effect HCP took 8 months to be approved.
Second, we think given this experience, it is probably
going to take us between 2 and 3 years, just to get our
regional HCP approved.
Because the Fish and Wildlife Service's goals and direction
tend to change, everything takes longer. For example, many have
relied on the proposed guidance provided in the Fish and
Wildlife Service's proposed 4(d) Rule for the mouse.
The 4(d) Rule was issued to provide clarity on what is and
is not considered a take of mouse habitat during the period
before the regional HCPs are approved. Well, the rule is about
to be re-proposed. And we have heard that some of the
guidelines such as extent of habitat will also be changed.
I have outlined in my written testimony what we have and
what we expect to spend to develop our HCP. I would like to
make the point now that we are expected to spend upwards of a
half a million dollars all to put our successful programs into
a language that the Federal Government understands.
My last issue is common sense. First, focusing on the
``species du jour'' does not make good sense. Our efforts, the
county's efforts to work toward preserving landscapes and
wildlife habitat as a whole does make sense.
Second, by the Fish and Wildlife Service imposing arbitrary
mitigation ratios, they may actually create disincentives to
preserve high quality, occupied habitat. The Fish and Wildlife
Service's proposed mitigation ratios for the mouse actually
provide incentives to restore or enhance marginal habitat that
may yield questionable benefits for the mouse.
To me, it makes more sense to provide incentives to ensure
that the really good habitat, occupied habitat is preserved.
And in conclusion, I have just a couple of quick thoughts.
In our situation, the Fish and Wildlife Service must be
provided with adequate resources to fulfill its legal
obligations.
We are faced with the scenario where we are going to be
spending at least a half a million dollars to put in place just
a plan. But we also may be required to pay for the Fish and
Wildlife Service's NEPA requirements. We think that is an
unfunded mandate.
Second, we also encourage Congress to consider streamlining
the HCP process. Third, we would like you to consider keeping
the species preservation decisions as close to the local level
as possible, to allow for common sense solutions.
And fourth, and finally, I totally agree with a lot of what
has been said today. We need to work on providing incentives
for landowners to become partners in this preservation effort.
I would be happy to answer any questions that you may have.
Senator Crapo. Thank you very much, Ms. Fox.
Mr. Moore.
STATEMENT OF JIM MOORE, DIRECTOR, PUBLIC LANDS CONSERVATION,
THE NATURE CONSERVANCY, LAS VEGAS, NV
Mr. Moore. Thank you, Mr. Chairman and members of the
committee. Good morning, my name is James Moore. I formerly
served as the Desert Tortoise HCP coordinator for the Nature
Conservancy of Nevada.
As you have heard from my colleague, Michael O'Connell in
July of this year, the Nature Conservancy has been involved in
conservation planning under the Endangered Species Act since
section 10 was authorized in 1982.
I was requested to come before you today to discuss a
successful case study of an HCP, which began in 1989 in the
unlikely setting for conservation of any kind, Las Vegas, NV.
In the late 1980's, the economy of southern Nevada was
booming, with an average of between 5,000 and 6,000 people
moving into Las Vegas Valley every month.
In August 1989, the Mojave population of the desert
tortoise was listed by emergency rule as endangered, and by
final rule as a threatened species in April 1990.
Under section 9 of the 1973 Endangered Species Act, no take
of the desert tortoise or its habitat could occur on private
lands. Much of the private land in the Las Vegas Valley was and
is to this day desert tortoise habitat.
The surging Las Vegas economic train threatened to derail
over an innocuous herbivorous reptile on the tracks. Numerous
construction plans and commitments for large-scale projects
such as school construction, flood control projects, and
master-planned communities were delayed, while awaiting the
outcome of court cases and appeals of the emergency listing.
It was in this atmosphere of conflict that a little known
provision of the ESA was brought into play. The Nature
Conservancy had recently participated in a similar setting in
the rapidly developing resort area of the Coachella Valley
outside of Palm Springs, CA, when the fringe-toed lizard was
listed as endangered.
We assisted State and Federal agencies and private
landowners to create and implement a successful conservation
program under the auspices of section 10(a)1(B) amendment of
the ESA.
And following this example, Clark County, NV took the lead
on resolving the desert tortoise listing conflict, and enlisted
the aid of the Nature Conservancy to provide recommendations
and environmental input into the development of an HCP to solve
the needs of private landowners in the Las Vegas Valley. It was
at this time I was hired as the Desert Tortoise HCP
Coordinator.
The first order of business was to assemble a steering
committee of affected parties; stakeholders representing a
diverse array of land uses and landowner issues in tortoise
habitat.
Livestock ranchers, miners, off-road vehicle enthusiasts,
hunters, hikers, tortoise advocacy groups, national
environmental groups, together with private property owners,
representatives from four cities, State and Federal land and
wildlife management agencies convened for some tension-filled,
early, get-acquainted sessions.
Land use rhetoric and entrenched bureaucratic positions
abounded on all sides while the group sought a common
direction. This seemingly impossible task fell to the skilled
facilitator, Paul Selzer, also involved in the Coachella Valley
HCP, to set the legal sideboards for the discussions and to
mold this dynamic oil and water group into a coordinated,
constructively engaged body.
The uncertainties inherent in embarking on this relatively
new provision and untested provision of the ESA attracted much
scrutiny from environmental activists groups, who wished to
ensure that a low standard was not set by this HCP.
The projected lengthy timeframe required to develop a
conservation plan for 20 or 30 years led the group to submit an
application for a short term, 3-year HCP. During this time, the
long-term plan would be developed using lessons learned from
the short-term experience.
The shorter timeframe of the 3-year HCP also provided more
skeptical environmental groups with some assurances that take
would be very restricted and would be commensurate with the
conservation mitigation.
In exchange for the limited take provided, mitigation would
occur on public lands, where a majority of the best examples of
viable and protectable tortoise habitat remained at a ratio of
roughly 20 to 1. This was an extraordinary ratio of
conservation to take, proposed under this provision.
Some of the more notable accomplishments of the short term
HCP were the purchase and retirement of livestock grazing
permits from willing seller ranchers, encompassing over a
million acres of public lands; the transfer of competitive off-
highway vehicle racing out of priority conservation areas and
into areas less ecologically sensitive; the initiation of a
tortoise relocation program to place tortoises removed from
developing lands back into previously depleted areas of the
Mojave Desert; and the reliable funding of public land
management activities for the benefit of the desert tortoise.
An additional byproduct of this process was the development
of trust among the stakeholders involved in the conservation
planning. This led to the successful negotiation of
transitioning the short term into a long term desert
conservation plan, which is now, as Senator Reid pointed out,
the largest conservation plan in the United States.
The subsequent successful transition from short term to
long term also led to the now developing multi-species HCP,
which is proposing to address the conservation needs of an
additional 78 species.
Many uncertainties exist for those additional species. And
the multi-species plan proposes to integrate a strong adaptive
management component into its conservation recommendations.
It relies heavily on trust that the monitoring program will
be sensitive enough to detect when management assumptions go
awry for one or more of the covered species. And the appetite
of landowners for these future adaptations of conservation
provisions and mitigation measures is, as yet, untested.
The jury is still out, in conclusion, as to whether or not
this multi-species plan will pass what I consider the
environmental smell test; that is, are the species proposed for
coverage under this plan better off in the presence of a
coordinated, well-funded conservation planning process than
they would be in the absence of it? And I believe the answer
will be yes, but that remains to be seen.
Thank you.
Senator Crapo. Thank you very much, Mr. Moore.
Mr. Quarles.
STATEMENT OF STEVEN P. QUARLES, COUNSEL, AMERICAN FOREST &
PAPER ASSOCIATION, WASHINGTON, DC.
Mr. Quarles. Thank you, Sir. I am Steve Quarles. I am
counsel for and appearing today representing the American
Forest & Paper Association.
AF&PA believes that habitat conservation planning is an
extraordinarily valuable tool to elicit from the private
landowner support for species protection.
A massive amount of private land has been enlisted in the
cause of species protection as a result of the habitat
conservation planning process. AF&PA's members alone have 15-
to 20-million acres of land in HCPs for which incidental take
permits have already been issued.
We have strongly supported legislative reform to provide a
more solid, statutory basis for habitat conservation planning,
and to remove some of the more recent problems that have arisen
in habitat conservation planning.
More even than the amount of land including within
incidental take permits is the quality of management on that
land resulting from habitat conservation planning. Remember
that the only obligation of a private landowner is to avoid
take of individual members of the species. That typically means
that a private landowner that is not engaged in a habitat
conservation planning simply avoids or perhaps puts buffers
around discrete pieces of the landscape, where identified
members of the species are nesting, breeding, or otherwise
conducting behavior important to their survival.
And even this minimal habitat is usually not protected long
term from fire, disease, insect, or simply growing out of the
appropriate habitat conditions. It is only with HCPs that
landowners agree to grow and replace habitat. It is only
through HCPs that landowners are willing to invest the money,
the time, and the effort to, in fact, ensure additional new
habitat consistently.
You know the statistics. Over 70 percent of all listed
species have 60 percent of their habitat on private land. Over
35 percent of endangered and threatened species have all their
habitat on private land. Clearly, habitat conservation planning
is important for species protection.
It is also of importance to landowners. The landowner
obligation absent habitat conservation planning is simple: to
avoid take. But the consequences are severe: injunctions,
imprisonment, penalties. Clearly, a landowner would like to
avoid those consequences, and the habitat conservation planning
process is the best way to do that.
Landowners are under no illusion that the process is easy,
timely or inexpensive. I refer you to a chart in my written
testimony, I submitted to this committee 5 years ago, in which
I compared how much more costly, lengthy, and procedure-laden
is the process for private landowners to obtain incidental take
protection under section 10, than the process for Federal
agencies to obtain incidental take protection under section 7.
But this Administration is to be complimented. It has
invested significant energy, policies, and resources to make
the HCP process work better. And the process has become a good
business investment for landowners who can afford it.
That is enough of the positive. My task today is to discuss
the problems that our members have recently and more frequently
encountered. We really do see a loss of focus and momentum in
the habitat conservation planning process.
A number of our members' HCP preparations have come to a
standstill, with no prospect of obtaining a permit. In other
cases, HCPs have been abandoned by the companies. And, finally,
many more of our members are seriously considering whether they
can justify participation in the habitat conservation planning
process.
We see six categories of problems, which I discuss in some
detail in my written testimony, but I will only summarize here.
First, are procedural problems that are escalating the costs
and delays beyond the capacity of even the largest landowners
to absorb. The Services' habitat conservation planning
handbooks say that even the most complicated HCPs are supposed
to be processed within 10 months. Today, we are finding 2-year
processing time to be precipitous agency actions. We are
looking at processing times of anywhere from 3 to 6 years. You
heard Rob Thornton speak of a 10-year period.
Second, the Services originally encouraged and now they are
undermining multi-species HCPs by their demands.
Third, we see the Services sacrificing science to
administrative efficiency, by seeking boilerplate provisions
for all HCPs addressing the same species, even though there are
particular habitat conditions for each landowner, and by
requiring arbitrary mitigation ratios.
Fourth, we see threats in the courts and from the Services
to the linchpin for landowner participation--the certainty that
a deal is a deal. This, of course, is the certainty that is
embodied in the ``No Surprises'' rule.
Fifth, we see the imposition by the National Marine
Fisheries Service of an inappropriate and unlawful standard of
recovery as a condition of approval of HCPs--a standard that no
landowner can meet, and is a principal reason why a great
number of HCPs are now at a standstill.
Sixth, and finally, we see a failure of the Services and
Congress to provide an effective mechanism that allows small
landowners to pursue the same incidental take immunity attained
through HCPs.
This obviously sounds like quite an indictment. It is. We
are seriously concerned that the HCP program is faltering. But
you have no greater fans of that program than the American
Forest & Paper Association. We believe it is the strongest hope
for species preservation on private lands.
Thank you.
Senator Crapo. Thank you, Mr. Quarles.
Mr. Rose.
STATEMENT OF DON ROSE, MANAGER, LAND PLANNING AND NATURAL
RESOURCES, SEMPRA ENERGY, SAN DIEGO, CA
Mr. Rose. Good morning, Mr. Chairman and members of the
subcommittee. My name is Don Rose. I work for Sempra Energy.
My staff and I are responsible for the siting and route
selections for transmission lines, gas and electric, and the
siting of other facilities, like substations, and regulator
stations. We also get the permits and the environmental
clearances, so those facilities can be developed.
Sempra is the parent company for San Diego Gas and Electric
and Southern California Gas, which serves a great deal of
Southern California.
I appreciate the opportunity to appear here today on behalf
of Sempra and the Edison Electric Institute, which is the trade
association for shareholder-owned electric utility companies.
We commend the subcommittee for conducting these hearings. We
are very interested in the hearings. We are especially
interested in the outcome of the hearings.
Gas and electric systems are complex. And like lots of
complex systems, they need constant care and maintenance.
Without that care and maintenance, there are outages.
Outages can have serious consequences, which can be
economic. They can be serious to health. There can be fire. The
environmental consequences can be quite serious. Because of
that, the State and Federal Governments on which we must be
permitted by require and mandate certain maintenance.
To perform this maintenance, it frequently puts us in a
conflict situation with the Endangered Species Act.
Maintenance, typically, must be performed during, weather
permitting, the nesting season for most of the protected
species, that being Spring and Summer and Fall.
During the bad weather, we can not do the maintenance. The
maintenances for maintaining access roads, et cetera, has to be
done during the good weather. Therefore, complying with one
regulation puts us in conflict with another regulation. So the
regulatory conflict is one of the biggest issues we have with
the Endangered Species Act. HCPs help resolve that, to a
degree.
San Diego County, more than most places in the United
States, is in this conflict situation. There are more listed
species in San Diego County than any other county in the
continental United States. So it is very difficult to go out
into the natural environment, without encountering that kind of
a situation.
HCPs seem to be the solution, so we went for it,
enthusiastically. We spent $1.2 million on a mitigation bank
and about another $800,000 on training and all the things
necessary to process an HCP.
And it worked very well for about 3 years. We are able to
do new construction without obtaining additional endangered
species permits. We are able to do our maintenance year around,
even during the sensitive time of the year. And we were able to
maintain our access roads.
Now the access roads are the most important part of that
maintenance activity. Because it is the access roads that
allows us to do all the other maintenance. We must have access
to the facilities in order to do that.
Well, along came the Quino checkerspot butterfly. Even
though we had 110 species covered, that was not on the list. It
was believed to be locally extinct. It was resurrected, and
what do you know. It just seemed to love the plant life that
would gravitate to our access roads. So we were not allowed to
regrade our access roads.
We talked about possible environmental consequences. The
two main activities, at least the ones we do the most
frequently are what we call insulator washing and line
clearing. We must wash the insulators. If you do not, they will
collect dust, and they will conduct electricity, and cause what
is called a flashover. Tree trimming or line clearing does
something similar, put out lines or starts fires.
This is a flashover on a low-voltage line, 26,000 volts.
The lines we are talking about are the lowest voltage
transmission lines on our system of 69,000. Three times that,
138,000 and 230,000 are the two most frequent lines that cross
the country, and we have a 500,000-volt line.
Now the ball of fire gets bigger. And I do not know if it
is arithmetic or what, but it is bigger as the voltage goes up.
This is not a wolf cry. This is real. We lost 20-square miles
of very valuable habitat in San Diego County, due to a fire
from poor maintenance.
Our HCP is avoidance-based and it is habitat-based. It is
not species-based like the act, itself. We put aside large
numbers of acres. We have put our rights-of-way into preserves.
Concerning our protocols, we completely changed the corporate
culture, adopted new protocols for people who work in the
field. They have to do things differently than they have
historically.
And I would say, at this point, I think SDG&E is probably
the most environmentally-sensitive electric utility company in
the United States, in the way that they do their maintenance
and their new construction. I have a list of these kinds of
protocols they must comply with, if you are interested.
Certainty and comprehensive are the two key words. There is
no certainty with your HCP. The Quino checkerspot came along.
Our HCP is now nearly useless. We can not use our access roads.
We can not wash our insulators. We can not trim the trees.
It is not comprehensive. If another species comes along,
even though it is habitat-based, it should be protected, as
long as it lives in that habitat, but it is not.
So what kind of things could we do to change that? One is
that if you have a habitat-based HCP, anything that lives in
there is afforded the same protection. And it ought to be
included, unless it can be proved otherwise that there is
special danger to it.
But more important would be a separate career path for the
Fish and Wildlife Service personnel that are managing HCPs, not
the field biologists. Their charge is to go out and heroically
protect those things that are on the brink of extinction, not
to issue a take permit, as philosophically opposed to that.
People with the broad view and the long view are needed to
manage HCPs.
Can I keep going on? I have a red light. But I would love
to go on.
Senator Crapo. Well, we probably should conclude with that.
Your written testimony has been carefully reviewed.
I will ask a few questions of the panel at this point. We
thank you all for your testimony.
I would like to start with you, Mr. Willey. You mentioned
during your testimony that you hired Dr. Dennis Murphy to
develop your HCP. And Dr. Murphy, of course, testified before
this subcommittee in July on the question of the science of
HCPs. I am assuming that your plan has been through a rigorous
scientific examination, by not only Dr. Murphy, but others.
The question is, is the Fish and Wildlife Service's basis
for not approving your plan based on a problem with the
science, or have they elaborated a reason for why they have not
approved the plan?
Mr. Willey. They did not elaborate a reason. And as I
mentioned in the testimony, they never gave us any comments in
writing, whatsoever.
The comments that we did get from them were verbal and
sporadic. They ranged from, ``this entire hill is habitat,'' to
Dr. Murphy, ``you do not know how to count butterflies.'' This
literally was said to Dr. Murphy.
Senator Crapo. So at this point, you do not really have an
understanding of exactly why the delays have occurred or why
the approval has not been received?
Mr. Willey. No. I have suspicions, but I have never been
told. But, yes, our plan, which is right here and costs
$300,000 to produce, before we even rang the doorbell over at
Fish and Wildlife, was put together by H.T. Harvey and
Associates and Sycamore Associates, and reviewed by Dr. Murphy
and Dr. Ray White and Alan Lonner, the real experts on this
species in the world. And it was good science. It was a good
plan.
Senator Crapo. Can you tell me how much it has cost Presley
Homes to this point to develop the HCP?
Mr. Willey. Half a million dollars, so far.
Senator Crapo. And review with me, again, the amount of
delay you have incurred.
Mr. Willey. Well, we have made our formal application and
submitted the draft HCP in October 1998, and presented it in a
formal meeting in November 1998. We began grading this summer
and were stopped after just a couple of weeks of grading. But
the Service waited until we were out there actually doing work
before they stopped us.
Senator Crapo. Mr. Willey, many builders are small volume
builders. They build between 10 and 25 homes a year or less. Do
the concerns that you have outlined in your testimony apply
across the board to small operations like that?
Mr. Willey. Oh, absolutely. I could not imagine myself
being a small volume builder, or worse yet, a private landowner
who has had some land in the family for a few generations, and
want to develop my property. I can not imagine somebody having
to go to the Fish and Wildlife Service and go through the maze
there.
The private landowners, would not only have the money to do
the types of mitigations that are demanded these days, but they
would not be able to afford the scientific help to even get
started.
Senator Crapo. Thank you very much.
Ms. Fox, as you stated, Douglas County is making enormous
investments in a county-wide HCP. Would the county consider
these investments without the assurances provided in the ``No
Surprises'' rule?
Ms. Fox. That is something that we have been concerned
about, all along. I think that it would be very difficult for
us to move forward without those assurances.
Senator Crapo. You also indicated in your testimony that
the NEPA costs were in the context, as you viewed them,
essentially as an unfunded mandate. The cost of the agency's
compliance with NEPA is being borne by the county.
Could you elaborate on that?
Ms. Fox. I think our biggest fear is that after we have
spent a lot of money, to get to a point where we are
negotiating our habitat conservation plan with the Fish and
Wildlife Service, and that if we get to a place where we are
agreeable, and the Fish and Wildlife Service says, ``Well, this
is great, but we can not issue your permit, because we can not
afford it.'' They do not have the money or the resources to pay
for NEPA compliance. Then the county will have to come up with
the additional funds.
The county commissioners would have a pretty hard time
justifying that, after we have already gone through an
extensive amount of time and negotiation and cost to our
taxpayers.
Senator Crapo. I think that is understandable.
I happen to have a constituent in Idaho who owns a ranch in
Colorado, where his elderly mother resides. And that ranch is
on the market and happens to be habitat for the Preble's meadow
jumping mouse.
A few months ago, an offer was made on the ranch, and
subsequently withdrawn, because the buyers were concerned about
the presence of the mouse.
And although I do not know whether this ranch is located in
Douglas County, I am wondering if the HCP that your county is
developing would provide assurances to potential buyers that
they would not be required to undertake burdensome conservation
measures to protect the mouse, increasing their level of
confidence in purchasing the property.
In other words, if this ranch were in Douglas County, would
the HCP that you are working on help them to be able to provide
the necessary assurances to a buyer?
Ms. Fox. One of the things that the county commissioners
were very concerned about when we launched into this process
was to do some things that not only covered the county's
activities, such as building roads and bridges and trails. We
have a significant amount of rural landscapes in the county and
ranches. The county commissioners have a strong ethic toward
agriculture. We wanted to include agricultural activities into
our habitat conservation plan.
So we are working with private entities, developers and
others to work on the development of our habitat conservation
plan, to make it acceptable to a wide variety of people, and
take into account other activities besides just our county
activities.
Senator Crapo. OK, good.
Mr. Moore, could the Clark County Desert Conservation Plan
be used as a model for HCP species in other parts of the
country, or is this also uniquely different in terms of the
circumstances that we can not identify model aspects of
projects such as this?
Mr. Moore. That is a good question. The term model HCP has
been used and thrown around quite freely by many of the
different plans that have been successful in the past.
The Clark County plan is unique in that the funding
mechanism for the plan, very early and up front, was the same
issue, if you will, that caused the listing in the first place.
That is the rapid development and loss of habitat, also created
the successful funding mechanism for the development of the
plan. That is the imposition of impact fees on the private
property owner that wanted to develop his or her land.
On the whole, the Clark County HCP, I think, is somewhat
unique in that both the species requirements, the fact that
most of the species, the desert tortoise, existed on public
lands, not private lands, allowed for a pretty flexible
negotiation process with the Fish and Wildlife Service in terms
of the mitigation would not be placed on the backs, if you
will, of the private property owner, but would take place on
public lands; that is, largely BLM owned and managed landscape.
So there are components of the Clark County HCP, I think,
that can not be duplicated elsewhere. But there are lessons
learned, I think, that can be. And that is the fact that the
Clark County HCP is recognized as one of the leaders in terms
of public participation early and up front, which takes away a
lot of the resistance at the latter part of HCP development.
It definitely lengthens the process. And if you do not have
the luxury of a funding mechanism to pay for that process, then
a lot of public participation is probably not a desirable
aspect of HCP development, especially for a smaller private
property owner.
Senator Crapo. I was interested in the lessons learned
section of your written testimony and your presentation today
with that point.
You indicate that the resistance to the proposed mitigation
measures was effectively diffused by the large amount of public
input. Could you elaborate on that?
I am interested in finding a common approach that could be
modeled in other areas. Public participation is an area in
which I have a significant amount of interest because I am
concerned about the way we go about it under our environmental
laws today.
How did you do it there, and what made it so effective?
Mr. Moore. Well, we did it by identifying not only those
stakeholders that would be impacted by desert tortoise habitat,
a take on tortoise habitat--those whose private property is
actually within the critical habitat designation, but also
those stakeholders that would be affected by the proposed
mitigation strategies on public lands, which was not private
property.
So we adopted essentially a ``y'all come'' scenario. The
meetings were open to everybody. The only requirement was that
if you come in, you come in informed. Do your homework; read up
on what has taken place before. Still, there was a lot of
venting up front, a lot of tension.
The meetings were frequent. We tried to distribute the
meetings throughout the day, so that people that worked during
the day could attend some meetings at night because the Las
Vegas Valley or Las Vegas community is essentially a 24-hour
town. There are three shifts of people operating at all times.
We had to make sure that the key landowners or key stakeholders
in the process had the opportunity to participate.
One of the difficulties in that scenario, however, is the
cost associated with participation over a long period of time.
The thing that brought people to the table and kept them there
was essentially the balance of terror. It was the belief, or
the fear, that if they were not there, that something was going
to be negotiated that they would not have a say in.
So a lot of people, especially the smaller landowners, the
small miners, OHV recreationists, who did not actually own the
private property that affected livelihood or their recreational
interests, all participated as much as they could.
In fact, at times, the livestock ranchers dropped out of
the process, because they did not see a benefit to themselves
early on.
Clark County essentially went out and hired an attorney
known for her adoption of western land use issues, Karen Budd-
Falen. They hired her to represent the livestock interests. It
was incumbent upon her to go out and solicit input from the
ranchers and miners and other people that could not participate
on a daily basis or on a monthly basis, and bring those
interests to the meetings.
Senator Crapo. Who was in charge of handling the meetings?
Mr. Moore. Paul Selzer, the facilitator for Clark County,
was hired by Clark County because of the success that he had
had in negotiating the Coachella Valley, development.
Senator Crapo. And did the Federal agencies involved
attend?
Mr. Moore. Yes, definitely, they were all ex officio
members, from the State, Federal, and local government levels.
Senator Crapo. How were decisions made? Was a consensus
process followed?
Mr. Moore. It was a consensus-based process. Many times,
you know, we just talked issues out until either people were
just brain dead or could not argue any more, or did not feel
strongly enough or impassioned enough in their opposition to
continue the arguments against a particular direction that we
were taking.
Senator Crapo. Then once those decisions were reached--
which Federal agency were you dealing with, in terms of the
HCP?
Mr. Moore. It was the Fish and Wildlife Service.
Senator Chafee. Fish and Wildlife?
Mr. Moore. Yes, Sir.
Senator Crapo. How was Fish and Wildlife convinced to agree
with the consensus that was reached in the meetings?
Mr. Moore. Well, we were somewhat lucky in our scenario, in
that the Service was an active participant. They still were
straddling the NEPA regulations--they cannot pre-decide a
policy or a decision, based on an application for an incidental
take permit.
They could provide the sideboards during the process and
kind of tweak the process along the way, and let people know if
they were heading off in the wrong direction.
Also, we had the benefit of a recovery plan, which took
kind of the big-picture approach of habitat-based conservation
planning. So the service was engaged.
For the development of the short-term plan, there was a
consistent representation, not only in terms of the staff that
were participating, but also in terms of the policy that was
being forwarded by the Service to the committee.
I have heard a continous strain throughout the discussions
of various HCPs today--consistency in representation and
consistency in commitment to policy guidelines that the Service
representatives bring to the table is essential to negotiating
an agreement that works.
Senator Crapo. But if I understand it correctly, though,
the Service effectively let the process work, and to the extent
consistent with the legal requirements it was working under,
accepted the recommendations or the consensus that was
developed.
Mr. Moore. Absolutely, and I think the reason behind that
was that they had enough foresight to see that if they did not
let the process run its course, if they did not let all the
stakeholders have their say and have some input in terms of
deciding how this negotiation was going to occur, and what the
provisions in terms of the conservation proposal and the
mitigation requirements was going to be, that they would get
hammered at the end product. A big document would be produced
at considerable cost, but it would lay on a shelf, because it
would not be accepted by the key stakeholders involved.
So they realized that the process, while lengthy and costly
and tedious, was essential to getting a successful product at
the end.
Senator Crapo. Now do you have a ``No Surprises'' element
in this plan?
Mr. Moore. Yes, the ``No Surprises'' rule or guidelines
came about late in the game. And I think it was in 1994 or
1995, when we had already had a successful short-term plan, and
had already submitted our long term 30-year desert conservation
plan.
But ``No Surprises'', I think, was operating at a constant
level throughout the process. So it was not something that
everybody insisted would be a new policy, integrated into the
process, because it had been consistent throughout.
Senator Crapo. It had basically been achieved in the
consensus already.
Mr. Moore. Yes, because it was such a high-profile HCP, the
largest in the Nation, it attracted the attention of a lot of
people at the upper levels. We needed the assurance to get
especially the more politically powerful stakeholders and
private property owners to sit at the table and agree to the
mitigation.
Senator Crapo. Do you think you could have achieved this
consensus without that kind of agreement on ``No Surprises''?
Mr. Moore. I think it would have been difficult if we had
not had it kind of operating at a de facto level throughout. I
do not think if the Service had changed courses during the
development of the short term plan to the long term plan or the
transition, then I think we would have lost some key
constituents.
Senator Crapo. All right, thank you.
Mr. Quarles, you have raised an issue that I think is
pretty important. Would you elaborate on your view that it is
inappropriate to impose recovery standards on private
landowners in the habitat planning process? And would you
describe how you see this standard being imposed presently?
Mr. Quarles. Certainly. If there is probably any principle
of law that there is more agreement on, under the Endangered
Species Act, it is that recovery is a responsibility only of
the Federal Government, and not a responsibility of the private
landowner. The private landowner has a much more modest
responsibility, and that is to avoid take.
You can find this principle both in the language and in the
legislative history of the Endangered Species Act, the Interior
Department's Solicitor's opinions, preambles to the rules of
the Service, court opinions, even the Solicitor General's
briefs to the U.S. Supreme Court in Sweethome, and in the
Service's own Habitat Conservation Planning Handbook. That is a
principle that has guided the Service until very recently in
the administration of the law.
ESA section 10 does have two additional requirements for
landowners seeking incidental take permits that also are much
more modest than the recovery standard. One of them is
virtually identified to be not likely to jeopardize the
continued existence of the species standard that is in the
section 7 process for Federal agencies to obtain incidental
take immunity.
And the other standard is that the landowner, to the
maximum extent practicable, is to minimize or mitigate the
direct impacts of the incidental takes. This standard is very
similar to the proportionality requirement of the Supreme Court
in the Dolan decision, that government can not require more of
landowners than to address the impacts of their own actions.
These standards have been made irrelevant by the NMFS in
particular salmon HCPs on the West Coast. NMFS now is requiring
fully functioning or properly functioning habitat which the
landowner must provide during the term of the HCP.
That means that the landowner does not just mitigate the
results of his or her own actions. The landowner has to
mitigate all the impact upon the habitat that may have occurred
long before the landowner acquired the property.
This new NMFS standard is, by definition, not
proportionality. By definition, it is recovery. You have to
recover that land, that habitat, and recover it to the point
that the species can recover on that land.
The simple fact of the matter is that if this new standard
were to prevail, there would be virtually no HCPs. Landowners
cannot provide recovery. Their land usually does not cover
enough of the landscape for that purpose. Even if they take all
the necessary actions to supposedly provide a fully functioning
habitat and the species do not come, then it is not a properly
functioning habitat. The landowner can not bring the species.
There may be all sorts of natural or human-caused reasons why
they do not come.
It is not an exaggeration to say that HCPs will not occur
under this standard. Because to my knowledge, there is not a
single HCP that, once NMFS has demanded fully functioning or
properly functioning habitat, has proceeded to an incidental
take statement. Each and every one of them has reached a
standstill.
Senator Crapo. If I understand you correctly then,
essentially your position is that there is no legal
justification for the imposition of this standard, but
nevertheless it is being imposed in the HCP process?
Mr. Quarles. Yes, by one agency. Interestingly enough, as
far as we can tell, this is a fundamental disagreement between
the Fish and Wildlife Service and the National Marine Fisheries
Service.
The Solicitor's opinions in the Department of the Interior
and, as I say, the Solicitor General of the United States, are
clearly on record as saying that conservation is not a standard
to be applied--recovery is not a standard to be applied to
landowners.
Senator Crapo. And it is the National Marine Fisheries
Service that is applying this recovery standard.
Mr. Quarles. Yes, it is.
Senator Crapo. One other aspect that you covered in your
testimony is the difference between section 10 and section 7,
and the question of whether Congress intended that HCPs
developed under section 10 should undergo a section 7
consultation.
Would you evaluate or explain a little further your
approach to that issue?
Mr. Quarles. I will. First of all, there are two lawsuits
that say that because you have to do section 7 consultation on
an HCP whenever a new species is listed or new information
arises the Services, either NMFS or the Fish and Wildlife
Service, have the a right to re-initiate consultation on that
original HCP, and make all sorts of additional demands for
expenditures and set-asides of land. That completely
contravenes the ``No Surprises'' policy.
Second, there is another lawsuit, which simply says that
under section 7(d), during the course of consultation, you can
not make any irretrievable commitment of resources that could
frustrate options for the incidental take permit. This would
mean that landowners would not take any actions that would
alter habitat during the entire course of the negotiations of
the HCP which, as I said, can take anywhere from 2 to 6 years.
Developers may be able to avoid that, because they do not
disturb the ground until all the permits are in place. But
farmers, forest land operators cannot forego land management
entirely for years.
And the final reason why it is of real importance is
because section 7 gives the Services an excuse to consider
issues and apply conditions in HCPs that Congress specifically
decided not to apply to private landowners. One is the
protection of critical habitat. Another is the protection of
listed plants. So we believe that that is really a problem.
In fact, we believe that the law states that section 7
should not apply to HCPs, and that there are two separate
processes--the section 10 process for incidental take permits
and the section 7 process for incidental take statements.
There are a number of proofs in the pudding. But perhaps
the greatest one is that when Congress enacted both those
processes in 1982, it took the principal standard of Section 7,
the ``do not jeopardize'' standard and inserted it in the
Section 10 process, clearly indicating they expected those to
be two separate and mutually exclusive processes.
Senator Crapo. Good, well, thank you, I appreciate those
observations. They are helpful.
Mr. Rose, in your statement, you recommended the
development of a new career track at Fish and Wildlife. And I
find that an interesting proposal. We are looking for solutions
here that can work. And perhaps we need to look at the
structural operation on the agencies.
Why do you think a new career track is needed, and what
would you propose there?
Mr. Rose. Well, I have dealt with few agencies or
organizations of any kind, that is so top heavy with a single
discipline.
About 90 to 95 percent--and this is casual observation from
the regional offices that I am familiar with, but also just
discussing with other people--of the professionals in the
wildlife agency, the service, are biologists. They do not have
the other disciplines necessary, in my opinion, to carry out
what is needed for a comprehensive HCP.
For the long term and the broad view, I think you need
people like land planners. You need people maybe with some
economic backgrounds and several other disciplines.
And I will give you an example of what I mean. The wildlife
biologists are very focused on implementing how they interpret
the Endangered Species Act, to conduct heroic efforts to save
these things on the brink of extinction.
In San Diego and along most of the California coastline, we
have a bird called the least tern. The least tern is protected,
and it should be. There were only 600 known mated pairs left in
the world. They are back to about 2,000 now. They nest in the
open sand. When it is faced with less and less open sand, it
has fewer places to nest.
Some chose to nest on the runway of the San Diego Airport.
It was open. They could see their enemies coming, so they
nested there. Then more followed close by. They did not all
nest on the runway. But some chose the runway, and there were
some deaths. The service issued a biological opinion, saying if
you kill three least terns, we have got to shut down the
airport.
In the biological opinion was a proposed mitigation. They
wanted the airport to cut grooves in the runway and fill them
with sand and shells, because that is what the least terns like
to nest in. So they wanted to attract more least terns to the
airport, so that more would get killed, and they would have to
shut it down.
It seems that decisionmaking and planning and discretion is
not compatible with the comprehensive HCP, which is supposed to
accomplish more than just the heroic efforts to bring something
back from the extinction. It is supposed to expand things, do
more.
So I believe you need other disciplines and other focuses,
and maybe even other philosophies.
Mr. Willey. May I add to that, please, Mr. Chairman?
Senator Crapo. Certainly.
Mr. Willey. Mr. Rose, I think you understated that. That
would not even be compatible with common sense.
My experience with the Service is that--and maybe, Mr.
Rose, you can back this up--sometimes it is very difficult to
find anyone who can make a decision; or, if they do, they will
be in conflict with other ones. They will even change their
minds again, before you leave.
We found we could find no one who would take
responsibility; no one who would make a decision. The
biologists, who like to refer to themselves occasionally as
``combat biologists,'' make the decisions. No two are the same.
But I think that this leads to complaints of having
different mitigation for the same situations, of people being
treated differently, and projects processed differently,
depending upon what day you take them in or what person you
talk to.
So I agree with Mr. Rose, there does need to be a variety
of different disciplines working at the Service. And someone
needs to be in charge.
Senator Crapo. Ms. Fox.
Ms. Fox. In Colorado, that 8-month low-effect HCP, that I
just mentioned in my testimony was the first habitat
conservation plan issued in the State of Colorado.
And we feel like we are hoeing entirely new ground. But,
yet, we know that there are all these other HCPs that have been
negotiated throughout the country.
But our representatives at the Fish and Wildlife Service
are new to all of this. So it would be great to have a little
bit of cross-fertilization, because we feel like we are going
through a whole new process.
Senator Crapo. I think these are all good suggestions. I
suspect that there is probably frustration within the agencies
themselves with regard to the structures and the requirements
they are required to face.
Maybe we can find, as we look to build a reform, some way
to suggest some institutional and structural changes to help
decisionmaking occur and to have some consistency, and to have
some timeframes within which it will be made, and some
responsibility there.
Mr. Rose, I also note that last year, in the Senate's
comprehensive Endangered Species Act Reform bill that was
reported out by the committee, there was a provision that
provided for a ``low-effect activity incidental take permit''.
What do you think of that kind of an approach, and how well
would that address some of your problems; in other words,
creating sort of a new category for very low-effect activities?
Mr. Rose. I think the concept is OK, like the whole concept
of HCPs. How would it be administered? Who would determine what
is low effect?
I think right now it would be back to that field biologist
that wanted to shut down the airport. So the risk is high. But
the concept sounds good.
If it has rigid standards for some kind of application so
that there is no discretion given to the field biologists on
how it would be applied, I could look more favorably on it. But
right now, I would be very concerned about the risks involved,
and I would need to know a lot more about the specifics.
Senator Crapo. Fair enough.
Mr. Quarles.
Mr. Quarles. Yes, if I may, that was one of my criticisms,
and let me expand on that just a bit.
All of us have the good intentions of trying to find a way
to make this work for the smaller landowner. But I do not think
we have found the answer yet.
For example, the small-effects language in the committee's
bill last year, still required a potentially expensive case-by-
case analysis.
And the result is, even though the Service's handbook says
that those small-effects HCPs, I believe, are supposed to be
completed in 3 months, you heard something like 6 to 8 months.
And, obviously, the high-effects ones were supposed to be
completed within 10 months, and we are hearing 2 to 6 years.
The Services, to their credit, have experimented with a
number of other mechanisms, such as no take letters, for birds
in Austin. They have also developed the Safe Harbor concept.
But none of those has really received broad acceptance or use
by smaller landowners. And many in the Services are opposed to
the use of those mechanisms.
AF&PA suggested to this committee last year, and we would
love to have it considered again, that we authorize general,
incidental take permits, like the general permits issued under
the Clean Water Act, as a means of getting away from the case-
by-case process, and wrap in small landowners in a way that
will allow them to obtain this incidental take immunity without
significant cost.
Senator Crapo. That is a good suggestion, also. Thank you.
One last question for you, Mr. Rose. It seems to me as I
read and listen to your testimony that what happened in your
case is that you had a pretty extensive HCP, under which you
managed your rights-of-way in a successful way to develop and
maintain habitat.
And then your efforts were trumped by the post-
implementation listing of a species, that essentially
interfered with your ability to achieve the objectives of what
you were seeking to do.
But it also seems to be that it is very possible that that
new species came there because of the habitat development
efforts and the activities that you were undertaking.
Was that ever an issue of discussion between you and the
regulators?
Mr. Rose. Yes, Senator, it was, but it was dismissed.
Our contention is that the butterfly is, in fact, attracted
to the plants that grow on our access roads. But it is
attracted to other areas in our rights-of-ways that are not
access roads. So the butterfly is there, and we are saving it.
The plants and the road would be regraded every other year,
but they come back. So the Service says, ``Well, it is a magnet
for the butterfly.''
Well, we say, ``It is good that it is there.'' Because if
we cease to grade the access roads, that plant would not come
back. It must have sun. If the sagebrush grew over the road,
there would be no sun and the plants would not come back.
So we felt that the butterfly has come back and is using
our roads to do so. So that should be part of the Service's
recovery plan. But they did not want to see it that way--
another shortcoming of the whole HCP.
But that plan does not apply on Federal lands, and our
facilities go for miles. They cross Federal lands; they cross
wetlands. It does not apply there, only on the private
property.
So when we are talking about how that works for us, we are
only talking about the private property aspects of our lines,
not the miles on military reservations, forest service, et
cetera.
Senator Crapo. I understand.
Well, I have a lot of other questions, and I also have run
out of time. And I want to thank this panel for your written
and your oral testimony, today.
And I would just say to you and to everyone, here,
obviously, we think this is a very critical issue that needs to
be addressed, and is one of the issues that we hope has the
potential for being able to be resolved, or we can find that
consensus, if possible, to move forward on some meaningful
reforms.
We are in a political climate where, as I think Senator
Baucus indicated, if we do not find an ability to move forward,
we simply find ourselves at loggerheads and unable to move.
But we also see real potential in some of these areas. And
your efforts in helping us identify what is happening on the
ground, so to speak, as we see difficulties in implementing the
process will help us hopefully to find the way to build a path
forward out of this difficulty.
I would encourage all of you, not only those of you who are
on the panel, but others who are interested in the issue, to
continue to provide us information and observation and
suggestions, as we move forward to try to identify a solution
to this issue, and because we are going to be working on it
very aggressively.
With that, again, I thank everyone for your participation
in the hearing. And this hearing is adjourned.
[Whereupon, at 12:16 p.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Eric R. Glitzenstein, Counsel, Spirit of the Sage Council,
Defenders of Wildlife and Other Environmental Organizations
I appreciate this opportunity to testify on the benefits and policy
concerns associated with Habitat Conservation Plans (``HCPs''),
especially as those HCPs have been employed by the present
Administration. I am a partner with the public-interest law firm Meyer
& Glitzenstein which has brought lawsuits on behalf of a wide spectrum
of national and grassroots conservation and animal protection
organizations, including the Spirit of the Sage Council, Defenders of
Wildlife, the Center for Marine Conservation, the Biodiversity Legal
Foundation, the Sierra Club, the Fund for Animals, the National Audubon
Society, the Humane Society of the United States, the Alliance for the
Wild Rockies, the Earth Island Institute, the Center for Biological
Diversity, the Environmental Defense Fund, and the Natural Resources
Defense Council. I am also the President of the Wildlife Advocacy
Project, a non-profit organization assisting grassroots organizations
in advocacy on behalf of wildlife and other animals. In this testimony,
I am providing my own perspective on the benefits and problems
associated with HCPs, based on my extensive experience in litigating
over these issues in Federal court.
hcps are legal requirements, not voluntary ``deals''
Before turning to some of these issues, it is important to
understand precisely what role an HCP plays in the legal and regulatory
structure established by the Endangered Species Act. As a matter of
Federal law, an HCP is not, as some have suggested, a voluntary
agreement reached by the Federal Government and a non-Federal party in
which a compromise ``deal'' is struck that provides protection for
endangered and threatened species. Rather, under section 10 of the ESA,
the development of an HCP is a necessary quid pro quo for private
parties who wish to engage in an activity that would otherwise be
flatly unlawful under Federal law, i.e., the incidental ``taking'' of
an endangered or threatened species through killing, harassing,
harming, or adverse habitat destruction. Simply put, if a private party
wishes to engage in the extraordinary and presumptively unlawful action
of killing or harming members of a species that is already on the brink
of extinction, that party must, under the ESA, prepare a Habitat
Conservation Plan which, as the name implies, adequately offsets the
permitted ``taking'' by promoting the ``conservation'' of the species--
defined by the ESA to mean that which is ``necessary to bring any
endangered species to the point at which the measures provided pursuant
to this chapter are no longer necessary.'' In brief, under section 10,
the Federal Government is allowed to permit the killing or harming of
some members of the species, in exchange for measures that will enhance
the protection of the species as a whole.
That Congress initially intended HCPs to actually promote the
recovery of endangered and threatened species is made clear by the
legislative history accompanying the 1982 amendments to the Act. The
requirement that those seeking permits to ``incidentally take''
imperiled species (``ITPs'') must prepare a ``conservation'' plan was
expressly ``modeled after a habitat conservation plan'' which had been
developed for the San Bruno Mountain area of San Mateo County. 1982
Conference Report at 30-31. That plan sought to address the
conservation needs of endangered butterflies which ``face[d] threats to
their existence[] even in the absence of any development,'' including
`encroachment on the species' habitat by brush and exotic species.''
Id. at 32. In particular, according to Congress, the plan ``preserves
sufficient habitat to allow for enhancement of the survival of the
species,'' including by ``protect[ing] in perpetuity at least 87
percent of the habitat of the listed butterflies.'' Id. at 32 (emphasis
added). Based on that ``model,'' Congress made clear that the Federal
Government could issue ITPs for many years, but only if those permits
were accompanied by HCPs which were ``likely to enhance the habitat of
the listed species or increase the long-term survivability of the
species or its ecosystem.'' Id. at 31 (emphasis added).
Regrettably, in its rush to approve ``deals'' which are far better
for developers than the imperiled species the ESA was designed to
protect, the present Administration has perverted Congress's original
intent in enacting the HCP requirement. In effect, that provision has
been converted from one intended to facilitate the recovery of species
into one under which the wholesale ``taking'' of endangered species is
authorized in exchange for woefully inadequate ``mitigation''--not
``conservation''--plans which do little, if anything, to offset the
extensive damage to the affected animals and plants.
an administration ``success story'': the woefully inadequate alabama
beach mouse hcps
One notable example--in which several recent high-profile HCPs were
declared illegal by a Federal judge in Alabama--is illustrative of the
problems which plague many of the recent HCPs/ITPs approved by the
Administration. That case involved ITPs issued to developers, which
allowed the direct ``take,'' and destruction of habitat, of the Alabama
beach mouse, a critically endangered species which plays a vital
ecological role in combatting beach erosion, but whose coastal habitat
has been ``drastically destroyed by `residential development and
commercial development, recreational activity, and tropical storms.' ''
Sierra Club v. Babbitt, 15 F. Supp. 2d 1274, 1280 (S.D. Ala. 1998).
Although the species had been listed as endangered precisely because of
the catastrophic loss of its habitat, the Interior Department decided
to issue several ITPs for massive beachfront developments which will
destroy large chunks of the scant occupied habitat that remains.
In exchange for this severe damage to a species already on the edge
of oblivion, the Service did not even require the developers to
implement plans which would actually promote the conservation of the
species in any meaningful manner, e.g., by conserving habitat that
would otherwise be destroyed and which was vital to the species'
survival and recovery. Instead, the HCPs approved by the Service relied
on ``mitigation'' measures which ranged from the truly laughable--
including the placement of signs warning young children that they
should stay off sand dunes occupied by endangered mice--to the patently
inadequate--such as meager cash payments for ``offsite mitigation''
which, the record showed, would not be sufficient to purchase even a
fraction of the amount of habitat obliterated by the projects.
In fact, even the FWS's own biologists concluded that these
measures were totally inadequate to compensate for the grievous injury
inflicted on the endangered species--a fact which the Chief Judge of
the Federal District Court in Alabama stressed in declaring the ITPs/
HCPs to be contrary to the ESA:
``Remarkably, the FWS simply ignored the clearly expressed
concerns of the experts Congress intended the agency to rely
upon in making such discretionary decisions . . . [T]he Court
finds that the Administrative Record is devoid of any rational
basis upon which the FWS could have reasonably relied in
deciding to issue the ITPs for these two projects.'' 15 F.
Supp. 2d at 1282 (emphasis added).
Regrettably, the Alabama Beach Mouse HCPs are typical, not
aberrational, examples of the Administration's recent approach to HCPs/
ITPs. Indeed, these very plans--which a Federal judge declared to be
``devoid of any rational basis''--have even been trumpeted by Secretary
Babbitt as HCP ``success stories,'' including in ``The Quiet
Revolution,'' the Interior Department's glossy but thoroughly
misleading advertisement for the scientifically bankrupt HCPs which
have becomes the Administration's stock in trade. Plainly, with
``success stories'' like these, species such as the beach mouse--and
its critical role in the coastal ecosystem--will soon be consigned to
the pages of history.
Making matters even more bleak for imperiled species are two
sweeping policies which the Administration has adopted--one of which
has been codified in a Federal regulation, and one which has not been
formally adopted, but which is just as obvious to anyone who observes
the Federal Government's ITP/HCP approval process. The former is the
so-called ``No Surprises'' policy which ensures that awful HCPs like
those driving the Alabama Beach Mouse to extinction will remain
immutable for decades, and the latter is the Administration's unspoken,
yet unmistakably clear, policy of avoiding meaningful public input on
ITPs/HCPs, and instead negotiating back room ``deals'' with ITP
applicants. If Congress wishes to seriously grapple with the problems
plaguing ITPs/HCPs, it must squarely address both of these seriously
misguided policies.
``no surprises''
Imagine the Food and Drug Administration announcing that,
henceforth, companies which receive licenses to market drugs or medical
devices will receive ``regulatory assurances'' that, even if the drugs
or devices are found to suffer from unanticipated dangers--such as a
risk of serious unexpected side effects--the licenses will still not be
modified for as long as a century. Or imagine the Nuclear Regulatory
Commission announcing that utilities operating nuclear power plants
will, from now on, receive ``regulatory assurances'' that, even if
their plants are found to be suffering from a previously unknown design
defect which increases the risk of a nuclear accident by a factor of
ten, the license to operate the nuclear plant cannot be changed for
decades or longer.
Imagine further that when the FDA's or NRC's policy is greeted by
the inevitable public outrage, the agency explains its policy by saying
that these ``regulatory assurances'' are necessary in order to give the
drug company or nuclear licensee an ``incentive'' to comply with the
law.
There is no functional difference between these facially absurd
scenarios and the ``No Surprises'' policy adopted by the Clinton
administration, which guarantees ITP holders that significant changes
will never be made in their decades-long permits, even if such
modifications are essential to avoid the extinction of the species
harmed by the permits. In plain terms, the ``No Surprises'' policy
provides that, when conditions unexpectedly change to the detriment of
an endangered species, the species loses and the developer wins every
time. As hundreds of conservation groups and independent conservation
biologists have argued, it is difficult indeed to imagine a policy more
antithetical to the core purposes of the ESA.
The ``No Surprises'' approach represents an extreme departure from
the manner in which other environmental laws are implemented and,
indeed, from virtually every sphere in which the Federal Government
regulates third party activities that are deemed potentially harmful to
societal interests. For example, when the Environmental Protection
Agency issues permits for the discharge of emissions into the water and
air, or for the storage of hazardous wastes--which would otherwise be
unlawful under the Clean Water Act, Clean Air Act, and Resource
Conservation and Recovery Act--it does not give dischargers an
additional ``incentive'' to comply with these laws by promising them
that their permit conditions will never change, even if the permitted
activities turn out to be far more detrimental to the public health and
environment than previously believed. To the contrary, although those
permits are issued for far shorter periods of time than ITPs (only 5
years for Clean Water and Clean Air Act permits, and 10 years in the
case of RCRA permits), the EPA nonetheless retains explicit authority
to modify the permits in response to new information.
Yet in the case of species on the brink of extinction--where law
and logic dictate an exceptionally cautious approach--the
Administration has adopted a truly radical regulatory regime, which
affords permittees unprecedented guarantees they receive literally
nowhere else in Federal environmental law--or any other area of the law
for that matter. Yet the Administration has never offered the public
even a plausible--let alone convincing--rationale for why those who
seek permits to kill or otherwise ``take'' imperiled species should
receive far greater ``assurances'' than those who wish to discharge
pollutants, operate nuclear power plants, market prescription drugs, or
take any other action which is unlawful without Federal approval.
This drastic policy was first announced by the Departments of the
Interior and Commerce in 1994, without the benefit of any advance
public notice or comment. When a coalition of grassroots conservation
groups--led by the California-based Spirit of the Sage Council--
subsequently filed a lawsuit arguing that it was unlawful for the
government to adopt this drastic change in the law without any
consideration of the public's views, the government belatedly agreed to
expose the policy to public comment, including the scrutiny of
independent scientific experts.
When the Interior and Commerce Departments subsequently proposed
codifying the policy as a formal rule, the rule was opposed by every
national conservation and animal protection organization which
commented on it, as well as a host of regional and grassroots
environmental groups from every part of the country, religious
organizations, Native-American tribes, and ordinary citizens who
expressed deep concern that the proposal would, if adopted, subvert the
nation's longstanding commitment to endangered species conservation
(Attachment A* lists the types of commenters who opposed the policy).
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*Retained in committee file.
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The proposal was also severely criticized by hundreds of
conservation biologists and other scientists, including those in
academic institutions, as well as those performing field research on
endangered species. These commenters opposed the proposal on many
grounds, including that it would make it impossible to prevent the
extinction of species under innumerable circumstances--i.e.,
``surprises''--that occur in the natural world all the time, and hence
that there must be some mechanism by which HCPs/ITPs that are approved
for many decades can be modified in response to ``surprises such as new
diseases, droughts, storms, floods, and fire.'' Statement on Proposed
Private Lands Initiatives from the Meeting of Scientists at Stanford
University (April 1997) (``Stanford Paper'').
Thus, a letter signed by 168 scientists with experience in
endangered species conservation--including 122 with Ph.D's in wildlife
conservation, ecology, and related fields--warned that the proposed
rule would ``greatly increase the risk of extinction of rare,
threatened and endangered species in the wild,'' and hence that the
proposal is ``antithetical to the Endangered Species Act.'' (Attachment
B*) (emphasis added). These scientists further explained that adoption
of the ``No Surprises'' policy as a final rule would:
---------------------------------------------------------------------------
*Retained in committee file.
``disregard a large body of scientific evidence, along with the
professional opinions of many scientists, that surprises are
inherent in the distribution and abundance of both common and
rare species, as well as in our interpretation of nature
---------------------------------------------------------------------------
generally.''
Id. at 1 (emphasis added).
Hundreds of other scientists have described the ``No Surprises''
approach in similarly ominous terms. For example, as many commenters
noted, leading conservation biologists denounced the ``No Surprises''
approach following a meeting at Stanford University, opining that such
a policy:
``runs counter to the natural world, which is full of surprises
. . . Surprises will occur in the future; it is only the nature
and timing of surprises that are unpredictable. Furthermore,
scientific research produces surprises in the form of new
information regarding species, habitats, and natural processes
. . . Unless conservation plans can be amended, habitats and
species certainly will be lost.''
Similarly, Dr. Gary Meffe, author of the nation's leading college
textbook on conservation biology, and Editor of the international
journal Conservation Biology explained in his comments that the ``No
Surprises'' approach ``runs counter to everything we know about natural
systems and their management,'' and that the ``policy makes no sense
from an ecological perspective and cannot help but put species in
further jeopardy of extinction.'' (Attachment C*). Along with his
comment, Dr. Meffe submitted a letter signed by over 160 leading
conservation biologists from throughout the country, who again urged,
in no uncertain terms, that the ``No Surprises'' approach:
``does not reflect ecological reality and rejects the best
scientific knowledge and judgment of our era. It proposes a
world of certainty that does not, has not, and will never
exist.''
These scientists catalogued the many kinds of unforseen
developments which can and do routinely affect endangered species, and
explained that ``[e]very ecosystem of which we are aware changes over
time: in species composition and abundance, in structural complexity,
in nutrient dynamics, in genetic composition, in virtually any
parameter we choose to measure.'' Id. at 1 (emphasis added). The
scientists concluded that:
``the only thing certain about ecological systems is their
uncertainty. Because we will always be surprised by ecological
systems, the proposed `No Surprises' amendment flies in the
face of scientifically based ecological knowledge, and in fact
rejects that knowledge . . . `No Surprises' . . . not only
ignores all present scientific knowledge of ecological
systems[] but denies the ability to manage in an adaptive way
that welcomes and incorporates new information and allows and
encourages improvement.''
One would hope that, when confronted with this vehement opposition
by hundreds of independent conservation biologists, the
Administration--which, under the ESA, is supposed to make decisions
based on the best available science--would have reconsidered the wisdom
of the ``No Surprises'' policy. But that was not the case because, as
has become painfully apparent--and as respected scientists such as
Peter Kareiva, Laura Hood, and Stuart Pimm testified to this
Subcommittee in July--the Administration's approach to HCP policy is
driven largely by politics, not objective science. Accordingly, the
Interior and Commerce Departments codified the ``No Surprises'' policy
as a formal rule in February 1998, stressing that, once an ITP is
issued, ``no additional land use restrictions or financial compensation
will be required of the permit holder with respect to species covered
by the permit, even if unforseen circumstances arise after the permit
is issued indicating that additional mitigation is needed for a given
species covered by a permit.'' 63 Fed. Reg. 8859 (emphasis added).
Under the rule, such assurances are automatically extended to the
permit holder for as long as the permit is valid, which may be for as
long as a century.
In exchange for making these unprecedented assurances to permit
holders, the final rule does not even require that HCPs actually
promote the recovery of species--which, as noted above, was the
original Congressional expectation for all HCPs. In other words, under
the Clinton Administration's bizarre regulatory scheme, ITP holders get
extraordinary, unprecedented ``regulatory assurances'' even where their
actions confer no net benefits for endangered species but, instead,
leave such species at even graver peril than before the permits were
issued.
Equally perplexing, the Administration's ``No Surprises'' rule does
not even afford government officials any discretion whatsoever to
decline to include a ``No Surprises'' guarantee in any particular ITP,
or even to use it as a bargaining chip in exchange for additional
conservation measures. Rather, the rule irrationally requires the
Services to make ``No Surprises'' guarantees to all ITP holders for the
entire duration of the permits, regardless of the degree of imperilment
of the species affected, the length of the permit, the amount of
habitat destroyed, or any other variables. The Administration has never
furnished a coherent explanation for this ``one-size-fits-all''
approach, which simply disregards the inherent variability of nature,
and strips government negotiators of the ammunition they need to secure
the best possible result for endangered and threatened species.
The farfetched premise underlying the ``No Surprises'' rule is
that, when unexpected changes occur to the detriment of species, the
Federal Government--i.e., Federal taxpayers--will be able to address
those developments, rather than the ITP holders themselves, who have
received extraordinary permits to kill, harm, or otherwise drive
endangered species closer to extinction. As suggested previously, that
premise reverses decades of Federal environmental policy, which is
predicated on the assumption that those responsible for causing harm to
the environment--and not Federal taxpayers--are obligated to pay for
those damages.
But even aside from that sharp break with precedent, the
Administration's premise that it will have sufficient funds to respond
to all unanticipated developments affecting species--e.g., by
purchasing additional habitat for species harmed by ITPs--has no basis
in reality, especially since high-ranking Administration officials
(such as the Director of the Fish and Wildlife Service) have repeatedly
sworn in affidavits filed in Federal courts that they lack the
necessary resources even to meet non-discretionary statutory deadlines
because of insufficient appropriations. On the other hand, many of the
ITP holders who have received decades-long ``No Surprises'' assurances
are multi-million dollar companies which obviously could afford to make
necessary changes in their HCPs. For example, in 1998, the Plum Creek
Timber Company had revenues of $669.4 millions, with a net income of
$75.4 million. Another major beneficiary of the government's ``No
Surprises'' policy--the Weyerhauser Corporation--had sales of $10.8
billion in 1998 and earned $339 million. There is no sound reason why
companies such as these cannot and should not be fully liable when
their HCPs prove to be inadequate to compensate for the harm that the
companies' actions are doing to endangered and threatened species.
lack of meaningful public input
The Administration's false characterization of HCPs as ``deals''--
instead of legally required permits conditions, which is what they are
under Federal law--has inexorably led to another devastating, albeit
tacit, government policy. As recently set forth in a study of the HCP
process by the University of Michigan School of Natural Resources, the
Administration is failing to ``provide[] meaningful opportunities for
public involvement in the HCP process'' because it has far ``higher
priorities than public participation, including streamlining the HCP
planning process, maintaining congressional support for the ESA,
providing flexibility to landowners, and enticing landowners to pursue
HCP agreements.'' University of Michigan School of Natural Resources &
Environment, Public Participation in Habitat Conservation Planning 4
(1998). Consequently--as occurred with the ``No Surprises'' policy--
even legitimate public and scientific concerns are completely ignored
in the mad rush to approve HCPs at all costs. The University of
Michigan report quotes one FWS biologist working on numerous HCPs as
saying that:
We have been bombarded from above with this sort of can-do
attitude--to get out there and work with the applicant and get
some product on the market. Anything that delays that or makes
it more difficult is not viewed favorably. The whole concept of
customer service has been really stressed with the applicant
being considered the only customer.
Id. at 23.
My firm is currently litigating a case, on behalf of Defenders of
Wildlife and a Maryland conservationist, which reflects all to well the
Administration's jaundiced attitude towards public involvement in the
HCP process. The case involves an effort to build a housing project in
the habitat of another desperately endangered species, the Delmarva fox
squirrel. That species has been reduced to about 10 percent of its
former range, with most of the remaining fox squirrels located in only
four counties of Maryland's Eastern Shore which is experiencing rapid
development. Many of the populations of fox squirrels that exist today
are located in small, isolated groups which are directly threatened by
the ongoing loss and fragmentation of their habitat. Collisions with
cars associated with human development are the main cause of fox
squirrel deaths, along with predation by pets and other human-caused
disturbances.
Despite these severe, ongoing threats to the species, the Fish and
Wildlife Service has done virtually nothing to stem the destruction of
fox squirrel habitat on private lands. Instead, the Service recently
issued an ITP to a developer which expressly authorizes the razing of
still more fox squirrel habitat, and allows the direct ``take'' of at
least 15 endangered fox squirrels, out of a local population of only
10-40 individuals. As compensation for this loss, the Service stated
that it was requiring extensive ``mitigation,'' which consisted largely
of the developer's commitment to preserve some offsite area which the
FWS asserted was ``optimal'' fox squirrel habitat.
Yet when the FWS solicited public comment on the ITP/HCP, it failed
even to inform the public about the location of the offsite mitigation
area, although it knew about the proposed location at the time it
solicited public comments. And when a representative of Defenders of
Wildlife--which has been very involved in fox squirrel conservation
issues--informed the Service that it and other members of the public
obviously could not provide meaningful comments without even knowing
the location of the offsite mitigation area, the Service flatly
conceded that the documents it had made available for public review had
``not adequately defined'' the offsite area which is the centerpiece of
the HCP. Incredibly, however, the Service then delayed providing
identifying information about the offsite location until after the
close of the comment period, so that the concerned public never had the
opportunity even to submit comments on this critical feature of the
HCP. Despite Defenders' repeated requests, the Service has refused to
reopen the comment opportunity and, even in response to a Federal
lawsuit, it is steadfastly insisting that it could approve the HCP
without even hearing environmentalists' concerns regarding the value of
the offsite mitigation area to fox squirrels.
This case also shows that meaningful public input is not merely
window dressing, but can be extremely valuable to the scientific
integrity underlying the HCP/ITP process. As it turns out, the offsite
mitigation area is not ``optimal'' fox squirrel habitat. To the
contrary, according to the world's leading expert on the species, Dr.
Vagn Flyger--who has studied the fox squirrel for the past 50 years and
who, incidentally, was FWS Director Jamie Clark's masters advisor at
the University of Maryland--the offsite area is ``exceptionally poor
[fox squirrel] habitat'' and hence is of ``no conservation benefit to
the subspecies.'' Of course, the public never even had the opportunity
to submit such vital information to the Service because of the
Administration's practice--as described in detail in the University of
Michigan study--of treating public input as, at best, a minor
inconvenience to be dispensed with as rapidly as possible.
recommendations
In drafting any legislation addressing HCPs, I respectfully suggest
that the Subcommittee consider the following:
1. While there is no convincing policy rationale for making Federal
taxpayers, rather than ITP holders themselves, pay for changes in HCPs
which are necessary to address new circumstances, if there is any
consideration to legislatively codifying some permutation of the ``No
Surprises'' rule, Congress must at least ensure that there is an
adequate, guaranteed source of funding to deal with such developments.
The current scenario--under which ITP holders are let off the hook,
while totally inadequate funds are appropriated to the Departments of
the Interior and Commerce--will obviously doom many species to
extinction.
2. Any legislation should expressly require that all ITPs/HCPs
contain detailed adaptive management provisions which make the ITP
holders responsible for addressing all reasonably foreseeable
developments which might adversely affect species whose taking is
authorized by the ITP. While the Administration has, in response to
criticism from the scientific community, acknowledged the importance of
adaptive management provisions, it has never issued a regulation
actually requiring them. Nor has the Administration required that all
ITPs/HCPs include the kinds of comprehensive monitoring programs
without which adaptive management requirements are useless.
3. Congress should, under no circumstances, endorse the
Administration's policy of automatically extending ``No Surprises''
guarantees to each and every ITP holder for the duration of the permit,
irrespective of the size of the area affected by the permit, the nature
of the endangered species impacted, who the ITP holder is, and other
significant variables. As discussed above, such an approach erroneously
assumes that all ITPs/HCPs should be treated in identical fashion, and
also precludes government scientists from extracting, in negotiations,
the best possible conservation measures for imperiled species.
4. To ensure that the public has meaningful input into the ITP/HCP
approval process, Congress should require that the public be involved
sufficiently early in the process so that such public input does not
come only after a ``deal'' has already effectively been struck between
the ITP applicant and the Service. One way to accomplish this result is
by requiring that the proposed ITP/HCP--and all underlying scientific
documentation--be made available for public review before any
substantive discussions occur between the developer and the Service.
That way, the Service will receive the benefit of public and scientific
input when it actually makes the critical decision of whether to
approve the permit and, if so, on precisely what terms.
conclusion
According to a nationwide survey of biologists recently announced
by the American Museum of National History, ``seven out of ten
biologists believe that we are in the midst of a mass extinction of
living things, and that this loss of species will pose a major threat
to human existence in the next century.'' Unlike prior extinctions,
this crisis is ``mainly the result of human activity and not natural
phenomena.'' These scientists ``rate biodiversity loss as a more
serious environmental problem than the depletion of the ozone layer,
global warming, or pollution and contamination.'' Indeed, the vast
majority of scientists polled believe that ``during the next 30 years
as many as one-fifth of all species alive today will become extinct,
and one third think that as many as half of all species on the Earth
will die out during that time.'' (A copy of the press release
announcing these results is Attachment D*).
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*Retained in committee file.
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When confronted with what scientists agree is a ``mass extinction''
of living creatures, the last thing the U.S. Government should be doing
is approving HCPs which harm, rather than help, endangered species;
giving unprecedented regulatory guarantees to those who wish to
``take'' such species; and going out of its way to exclude the public
and independent scientists from the process by which HCPs are
considered and approved. Sadly, though, that is precisely what this
Administration is doing. Before it is too late for the Alabama Beach
Mouse, the Delmarva Fox Squirrel, and countless other species for which
time is rapidly running out, I urge this Subcommittee, and Congress as
a whole, to consider and adopt legislation which restores scientific
integrity to the HCP process, and reaffirms this nation's commitment to
do what it can to stem the accelerating loss of animals and plants in
this country and throughout the world.
______
Statement of Robert D. Thornton, Counsel, Orange County Transportation
Corridor Agencies
i. introduction & summary
I am Robert Thornton, general counsel to the Orange County
Transportation Corridor Agencies--two regional transportation agencies
in Orange County, California who have played a leading role in the
Southern California Habitat Conservation Planning Program. These
agencies are developing 68 miles of new regional transportation
facilities. Since 1987, these agencies have spent well over $100
million for the conservation of wildlife habitat and other
environmental protection measures.
I have labored most of my professional career to make the
Endangered Species Act work on the ground--in the real world. I am
proud of the fact that I was the original author and advocate for what
eventually became the habitat conservation plan (``HCP'') amendments to
the ESA in 1982. I have represented public agencies, landowners,
developers, farmers and forest products companies in the negotiation of
two dozen habitat conservation plans, including the first HCP approved
by the Fish and Wildlife Service (San Bruno Mountain), one of the
largest regional HCPs (Metropolitan Bakersfield), and one of the first
habitat-based HCPs (Orange County Central/Coastal Natural Community
Conservation Plan). Most recently, I acted as counsel to the Pacific
Lumber Company with regard to the Headwaters Forest transaction and the
related HCP concerning the Company's 200,000 acres in Humboldt County,
California.
The views expressed today are mine alone, though I believe they
fairly reflect the views of many of the private landowners who I have
represented on endangered species matters for the last 20 years.
In Summary:
1. Habitat Conservation Planning is at a crossroads. Whether
landowners will continue to cooperate in conservation planning depends
on the continued viability of the assurances (or ``no surprises'') rule
and the other Babbitt reforms of the ESA. But certain elements of the
environmental community are attempting to kill the Babbitt reforms
through a concerted litigation strategy;
2. Fundamentally, the assurances rule is a device to allow the
Federal Government to share risks and burdens between the Federal
Government and private landowners. The policy allows landowners and the
Services to enter into consensual agreements under which the landowners
agree to commit to significant investments in endangered species
protection now, in return for the Federal Government assuming the risk
and burden of future protection measures in the event of unforeseen
circumstances;
3. It is now widely accepted that habitat conservation plans are
essential if the goals of the ESA are to be achieved. The National
Academy of Sciences has commented favorably on HCPs because such
regional conservation approaches are more consistent with principles of
conservation biology than project-by-project, species-by-species
regulatory approaches;
4. Emerging underground interpretations of the ESA within the
agencies will seriously undermine landowner cooperation in habitat
conservation planning efforts. These underground interpretations
include attempts to impose a recovery standard on HCPs and efforts to
define ``jeopardy'' by reference to impacts on sub-populations;
5. The authority in the ESA to prepare ``habitat-based'' HCPs
should be solidified. One of the great potential advantages of the HCP
process to the development community is the opportunity, in one
planning effort, to resolve conflicts involving both listed and
unlisted species through a single HCP. But the wildlife agencies and
the environmental community are reluctant to agree to plans that
absolve developers from the need to provide additional mitigation in
the event that the unlisted species are subsequently listed--especially
if the biological studies did not specifically survey for and study the
species; and
6. New market-based approaches to HCP planning are needed. Most of
the HCPs developed to date have relied on command and control
regulatory mechanisms. Typically, biological consultants identify areas
that are the highest priority for future preservation. Lines are drawn
around these areas prohibiting or greatly restricting development in
the proposed preserve areas. Landowners developing habitat outside of
the preserve areas are required to contribute to the acquisition of the
preserves--usually through the payment of development fees. This model
can work fine as long as the owners of land within the preserve areas
are willing participants. Often, this is not the case. We need to
develop market-based approaches, which provide economic incentives to
landowners to engage in conservation planning.
ii. habitat conservation planning is at a crossroads
Secretary Babbitt breathed life into Section 10(a) through the
adoption of the ``assurances'' policy, candidate conservation
agreements, the ``safe harbor'' policy, and various other measures to
encourage landowners to participate in habitat conservation planning.
Secretary Babbitt's initiatives have exceeded beyond anyone's wildest
dreams. Four hundred HCPs have either been approved or are under
development. Beginning in the early 1990's, landowners and local
governments initiated so-called ``habitat-based'' HCPs. These new form
of HCPs attempt to move away from the ``species-by-species'' approach
of the early HCPs and resolve conflicts with development activities
through an ecosystem or habitat-based approach. Collectively, these
plans will address tens of millions of acres of land and the habitat of
hundreds of endangered or threatened species.
It is now widely accepted that habitat conservation plans are
essential if the goals of the ESA are to be achieved. The National
Academy of Sciences has commented favorably on HCPs because such
regional conservation approaches are more consistent with principles of
conservation biology than project-by-project, species-by-species
regulatory approaches.\1\ The former general counsel of the National
Wildlife Federation has also recently documented the conservation
benefits that are being realized through HCP planning efforts.\2\ The
National Academy of Sciences has identified six tenets of conservation
biology:
---------------------------------------------------------------------------
\1\ Committee on Scientific Issues in the Endangered Species Act,
Science and the Endangered Species Act, at 78-93 (National Academy of
Sciences 1995) (hereinafter ``National Academy of Sciences Report'')
\2\ O. Houck, On The Law of Biodiversity and Ecosystem Management,
81 Minn.L.Rev. 869, 953-974 (1997).
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1. Species well distributed across their range are less susceptible
to extinction than species confined to small portions of their range.
2. Large blocks of habitat containing large populations of a target
species are superior to small blocks of habitat containing small
populations.
3. Blocks of habitat that are close together are better than blocks
far apart.
4. Habitat that occurs in blocks that are less fragmented
internally is preferable to habitat that is internally fragmented.
5. Interconnected blocks of habitat serve conservation purposes
better than isolated blocks, and habitat corridors or linkages function
better when the habitat within them resembles habitat that is preferred
by target species.
6. Blocks of habitat that are roadless or otherwise inaccessible to
humans are better than roaded and accessible habitat blocks.\3\
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\3\ National Academy of Sciences Report, at 88-89.
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The record of the last 20 years under the ESA strongly indicates
that tenets are more likely to be achieved through regional
conservation planning efforts than through project-by-project, species-
by-species approaches.\4\ This is the case because it is only through
comprehensive, regional conservation programs that entire ecological
systems can be effectively conserved.
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\4\ For a review of decisions under Section 7 of the ESA see, O.
Houck, The Endangered Species Act and its Implementation By the U.S.
Departments of Interior and Commerce, 64 Col.L.Rev. 63 (1993).
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Initially, the environmental community endorsed the notion of
regional planning to conserve endangered species habitat and resolve
conflicts with development.\5\ The endorsement appeared to be driven by
a sincere realization that the traditional regulatory mechanisms of the
ESA could not address effectively the immense challenge of habitat
conservation on private land. As a leading environmental advocate has
stated:
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\5\ Bean, M.J., S.G. Fitzgerald, and M.A. O'Connell, Reconciling
Conflicts Under the Endangered Species Act: The Habitat Conservation
Planning Experience (World Wildlife Fund 1991).
Given that the ESA's only current tool to affect the behavior
of private landowners--the taking prohibition--does not
effectively address many of the most serious threats to rare
species, and given that fear of that tool has sometimes
prompted landowners to act against--rather than for--the best
interests of such species, other conservation tools are clearly
needed. Simply deterring harmful conduct--as the taking
prohibition seeks to do--is not enough. It is necessary to
encourage and reward beneficial conduct.\6\
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\6\ M. Bean, The Endangered Species Act on Private Land: Four
Lessons Learned from the Past Quarter Century, 28 Envtl. L. Rep. 10701,
10707 (Dec. 1998).
Certain segments of the environmental community--including groups
that previously endorsed multi-species conservation planning--are
increasingly critical of HCPs and Secretary Babbitt's administrative
reforms. A coalition of environmental groups have challenged the ``No
Surprises'' rule under the ESA and the Administrative Procedure Act.\7\
Lawsuits challenging the San Diego Multi-Species Conservation Plan have
been filed as have 60-day notices to challenge the Pacific Lumber HCP.
Challenges to pending HCPs in other parts of the west are very likely.
The outcome of this litigation will largely determine the future of
habitat conservation planning on private land.
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\7\ Spirit of the Sage Council v. Babbitt, District of Columbia
District Court No. 1:98CV01873(EGS).
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A number of innovations have emerged in recent years in the HCP
process including the following:
1. The emergence of multi-landowner regional habitat conservation
plans;
2. The development of multi-species and ``habitat-based''
conservation plans;
3. The issuance of the ``no surprises'' policy by Secretary Babbitt
and the emergence of workable interpretations of the policy in several
HCPs;
4. The use of free market mechanisms to conserve wildlife habitat;
and
5. New funding sources.
Whether any of these new initiatives survive depends on the
political debate in Washington, litigation over the ``No Surprises''
rule, and the fate of other attempts to undermine the Babbitt reforms
of the ESA.
ii. the assurances rule is essential to obtain the cooperation of the
private landowners and local public agencies in habitat conservation
planning
None of the Babbitt reforms have generated as much interest, or as
much controversy, as the ``assurances'' or ``no surprises'' policy. In
simple terms, the policy provides that once the Federal wildlife
agencies have approved a HCP, they will not seek more land or more
money from the HCP parties beyond the land and money committed through
the HCP. Secretary Babbitt has eloquently described the rationale of
the policy:
[W]e need to codify the success stories that I've told you
about. The habitat conservation idea, signing these agreements
that say we can accommodate resource use and development with
protection guarantees. . . . With it comes a concept that we
call ``no surprises.'' It's a very important idea. We once
again learned this not here in Washington but out on the ground
in Southern California where the developers, after we had gone
through months of the intense difficult negotiations on the
ground, as we were nearing closure on the design of these
preserves, . . . the developers were saying, ``Now what happens
if we sign onto this and a year or two from now the Fish and
Wildlife Service comes back and says, `[W]e want a second
bite.' ''
If we're going to make this Act work on the ground in the
real world, and ask timber companies and developers to make
those kinds of concessions, . . we've got to establish one
simple common-sense principle, and that is one bite at the
apple--take a good one--thrash it out, then say to the
developer, ``OK, a deal's a deal.''\8\
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\8\ Address by Bruce Babbitt, Secretary of the Interior to the
National Press Club Luncheon, at 5 (July 17, 1996).
Although some environmental groups have derided the policy as a
radical new idea, the policy was explicitly contemplated by Congress in
1982. The legislative history of Section 10(a) indicates that Congress
contemplated that a Section 10(a) permit approval would also encompass
the FWS agreement not to impose additional mitigation, except as
contemplated by the approved HCP. The conference report to the Act's
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1982 amendments stated the following in this regard:
The Committee intends that the Secretary may utilize this
provision to approve conservation plans which provide long-term
commitments regarding the conservation of listed as well as
unlisted species and long-term assurances to the proponent of
the conservation plan that the terms of the plan will be
adhered to and that further mitigation requirements will only
be imposed in accordance with the terms of the plan.\9\
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\9\ H.R. Rep. No. 835, 97th Cong. 2d Sess. 31, reprinted in 1982
U.S. Code Cong. & Admin. News 2860, 2872.
This legislative history reflected the structure of the San Bruno
Mountain HCP. The landowners and agency participants in the San Bruno
Mountain HCP entered into an agreement which set forth the terms and
conditions of the Section 10(a) permit. The agreement included
covenants by the public agencies that they would not impose additional
mitigation measures beyond the terms of the agreement.
The policy emerged out of the southern California NCCP plans. In
the southern California NCCPs, the parties to the planning processes,
including the FWS, have agreed to ``no surprises'' language in the
implementing agreements that would preclude the imposition of
additional mitigation requirements that would require the contribution
of additional land or more money. The effect of this approach is to
shift a certain amount of the risk of ``unforeseen circumstances'' to
the government. Given the disproportionate share of the burden of
endangered species protection that is borne by the private landowners,
this shift is entirely appropriate.
In late 1996, several organizations challenged the ``No Surprises''
policy alleging that the policy was issued in violation of the
Administrative Procedure Act and the ESA.\10\ The plaintiffs alleged
that the APA required the policy to be adopted after notice and comment
procedures. In early 1997, the government settled the litigation by
agreeing to promulgate the rule through a noticed and comment
rulemaking proceedings. The agencies promulgated the rule February 23,
1998 with certain modifications.\11\ The plaintiffs in the earlier case
have filed a new action challenging the rule on its face as a violation
of the ESA and APA.\12\
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\10\ Spirit of the Sage Council v. Babbitt, District of Columbia
District Court No. 1:96CV02503 (SS)(D.D.C.).
\11\ 63 Fed. Reg. 8859-8873 (Feb. 23, 1998).
\12\ Spirit of the Sage Council, et al. v. Babbitt et. al. District
of Columbia District Court No. 1:98CV0187s (EGS). Cross motions for
summary judgment are anticipated to be decided in late 1999.
---------------------------------------------------------------------------
The ``No Surprises'' rule provides that an incidental take permit
holder will not be required to provide more land, water, natural
resources or financial commitments in the event of ``unforeseen
circumstances'' if the HCP is being properly implemented. The term
``unforeseen circumstances'' means a change affecting a species or area
covered by an HCP that could not reasonably have been anticipated and
that results in a substantial and adverse change in the status of the
covered species. If the Services determine that additional mitigation
is required due to unforeseen circumstances, such action must be
provided on Federal land to the maximum extent possible. If those
protective measures are insufficient, the Services may seek additional
mitigation from the permit holder. Such additional mitigation must be
limited to modifications of the HCP's operating conservation program
for covered species, while maintaining the original terms of the HCP to
the maximum extent possible.
The rule makes a distinction between ``unforeseen circumstances''
(events which are not reasonably foreseeable) and ``changed
circumstances'' (events which are reasonably foreseeable). Unlike
unforeseen circumstances, HCPs are required to include measures to
address the effect of changed circumstances. In the event of changed
circumstances the Services may require the incidental take permit
holder to undertake additional mitigation, but only to the extent
described in the HCP.
The defense of the rule is founded on the legislative history of
Section 10. It is also founded on the principle of judicial deference
to the interpretations of the administrative agency enunciated in
Chevron U.S.A. Inc. v. Natural Resources Defense Council:
When a challenge to an agency construction of a statutory
provision, fairly conceptualized, really centers on the wisdom
of the agency's policy, rather than whether it is a reasonable
choice within a gap left open by Congress, the challenge must
fail. In such a case, Federal judges--who have no
constituency--have a duty to respect legitimate policy choices
made by those who do.\13\
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\13\ 467 U.S. 837, 865-66.
Plaintiffs' argument that the rule violates the Services' Section 7
``no jeopardy'' obligation has been seriously undermined by the FWS
promulgation of new standards governing the revocation of ITPs. In the
regulation, FWS indicated that where use of their other authority would
not avoid jeopardy, FWS will revoke an ITP to avoid violating the
Section 10 permit issuance standards (which include the ``no jeopardy''
requirement).\14\ While the ITP revocation rule will likely assist in
turning back the challenge to the ``No Surprises'' rule, it may
diminish the level of assurances that can be obtained by landowners
through a HCP and, in turn, deter landowners from participating in
regional conservation planning efforts.
---------------------------------------------------------------------------
\14\ 64 Fed. Reg. 32706 (June 17, 1999)
---------------------------------------------------------------------------
Fundamentally, the ``no surprises'' rule is a device to allow the
Federal Government to share risks and burdens between the Federal
Government and private landowners. The policy allows landowners and the
Services to enter into consensual agreements under which the landowners
agree to commit to significant investments in endangered species
protection now, in return for the Federal Government assuming the risk
and burden of future protection measures in the event of unforeseen
circumstances.
Antagonists to the policy in the environmental community argue that
the policy is flawed because surprises are inherent in natural systems
and because the Federal Government may not elect to spend sufficient
resources to address unforeseen circumstances--even if the government
has a legal obligation to do so. Ultimately, this is a policy debate
over the extent to which Federal taxpayers should shoulder the cost of
endangered species protection, or whether the lion's share of this cost
should continue to be borne by affected landowners and their customers.
iii. emerging underground interpretations of the esa will undermine
landowner cooperation
A. Attempts to Impose the Recovery Standard on Section 10 Permits
The statutory standards for issuing a Section 10(a) permit are
relatively simple. The applicant needs to demonstrate that the plan
will minimize and mitigate the impacts of the development activity and
that the taking will not reduce the likelihood of the recovery and
survival of the species in the wild. This latter standard is the
regulatory definition of the ``jeopardy'' standard applicable to inter-
agency consultations on Federal agency actions under section 7(a)(2) of
the ESA.\15\
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\15\ 50 C.F.R. 402.02.
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In several recent HCP negotiations, the Fish and Wildlife Service
(``FWS'') and National Marine Fisheries Service (``NMFS'') are
attempting to require the HCP applicants to do more than minimize and
mitigate and avoid jeopardy. They are seeking conditions in the HCP to
achieve the recovery\16\ of the species. For example, in several
pending HCP on the west coast addressing the recently-listed coho
salmon, NMFS biologists are seeking to impose restrictions on timber
operations that NMFS asserts are necessary to achieve the recovery of
the coho salmon. In other HCPs involving the marbled murrelet, the FWS
is seeking to define ``jeopardy'' by reference to the impacts of the
HCPs on sub-populations of murrelets within ``conservation zones'' in
order to achieve certain recovery goals identified in the draft
recovery plan.
---------------------------------------------------------------------------
\16\ In contrast the minimization concept in section 10, the ESA
defines ``conservation'' to mean improving or recovering the status of
a listed species ``to the point'' that the protections of the ESA are
no longer necessary and the species can be de-listed. 16 U.S.C.
Sec. 1532(3).
---------------------------------------------------------------------------
These agency demands are well beyond the requirements of the ESA.
The section 7 regulations define the term ``jeopardy'' narrowly. The
term ``jeopardy'' is defined to mean:
[T]o engage in an action that reasonably would be expected .
. . to reduce appreciably the likelihood of both the survival
and recovery of a listed species in the wild. . . .\17\
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\17\ 50 C.F.R. Sec. 402.02.
The preamble to the regulations explained that the word ``both''
was added to the definition to make it clear that ``to find that an
action is likely to jeopardize a listed species . . . the Service must
identify detrimental impacts to `both the survival and recovery' of the
listed species.'' \18\ The FWS and NMFS explicitly rejected proposed
definitions of jeopardy that would have expanded the definition to
include actions where the impact did not jeopardize the survival of the
listed species. For example, FWS and NMFS rejected a definition of
jeopardy that would have required a jeopardy finding when there was
``injury to recovery for an already depleted species.'' \19\
---------------------------------------------------------------------------
\18\ 51 Fed. Reg. 19926, 19934 (June 3, 1986).
\19\ Id.
---------------------------------------------------------------------------
The agencies' suggestion that HCP applicants are required to
achieve recovery standards also ignores clear distinction in the ESA
between the obligations of private parties and those of Federal
agencies. A fundamental precept of the ESA is that the Federal
Government in general and the Departments of Interior and Commerce in
particular have special obligations under the ESA which are above and
beyond the obligations of the private sector and State and local
governments. Under section 7(a)(1), the Secretary is required to take
actions in furtherance of the purposes of the ESA.\20\ The courts have
interpreted this provision to impose special burdens on Interior and
Commerce which do not apply to other Federal agencies--let alone non-
Federal entities.\21\
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\20\ 16 U.S.C. Sec. Sec. 1531(a)(1).
\21\ See, Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d
257 (9th Cir. 1984) [holding that Section 7(a)(1) of the ESA required
the Department of the Interior to administer programs to further the
conservation purposes of the ESA].
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B. Attempts to Define ``Jeopardy'' With Reference to Sub-Populations
The Services' formal interpretation of the jeopardy standard (as
enunciated in the section 7 regulations) is in sharp contrast to the
assertion of certain Service representatives that it is appropriate to
define jeopardy by reference to the impact on a sub-population of a
listed species. If ``injury to recovery for a depleted species'' does
not constitute jeopardy (as the FWS concluded in the section 7
regulations), then it is difficult to understand the basis for a claim
that jeopardy can be defined by reference to injury to a sub-
population.
The attempt to define ``jeopardy'' by reference to impacts to sub-
populations is also contrary to the clear Congressional directive to
limit the regulatory reach of section 7 of the ESA to distinct
population segments and higher taxonomic units. During the
consideration of the 1979 amendments to the ESA, Congress debated
extensively an amendment recommended by the General Accounting Office
to eliminate the authority to list separate populations. Although
Congress ultimately retained the FWS authority to list ``distinct
population segments'' of vertebrate species, it made it clear that it
was retaining this authority in the ESA to provide the Services with
greater (not less) management flexibility. Congress further emphasized
that the population listing authority should only be utilized in very
limited circumstances. The Report of the Senate Committee on
Environment and Public Works on the 1979 amendments stated the
following:
[T]he General Accounting Office recommended that the
subcommittee consider an amendment . . . which would prevent
the FWS from listing geographically limited populations. . . .
[U]nder the GAO proposal FWS would be required to provide the
same amount of protection for the bald eagle population in
Alaska, which is healthy, as for the bald eagle population in
the conterminous states, which is endangered.
[T]he committee is aware of the great potential for abuse of
this authority and expects the FWS to use the ability to list
populations sparingly and only when the biological evidence
indicates that such action is warranted.\22\
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\22\ S. Rpt. No. 96-151, 96th Cong. 1st Sess. at 6-7.
---------------------------------------------------------------------------
In other words, Congress authorized the listing of distinct
populations in limited circumstances and only because it wanted to
provide the FWS with greater management flexibility under the ESA.
Throughout the lengthy ESA debate preceding the 1978, 1979 and 1982
amendments, no one suggested that the section 7 ``no-jeopardy''
standard could be applied to sub-populations. As the above legislative
history indicates, Congress considered eliminating entirely the
authority to list distinct populations.\23\ It intended that the
listing of separate populations should be a rare event. It never
intended or contemplated that the jeopardy requirement would be applied
to units below the population level.
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\23\ The effect of this amendment would have been to require
section 7 jeopardy determinations to be made with regard to the effect
on the biological species as a whole. In the case of the murrelet, the
amendment would have required the evaluation of the each HCP to
consider the very large murrelet populations in British Columbia and
Alaska.
---------------------------------------------------------------------------
The above agency demands, if they become established agency policy,
will almost surely put the brakes on the recent increase in regional
habitat conservation efforts. If the FWS proposed standard were to be
applied to other HCPs, it is extremely doubtful that landowners and
local agencies would agree to participate in conservation planning for
unlisted species.
iii. esa authority to prepare ``habitat-based'' plans should be
solidified
Over the last decade, HCPs have become increasingly complex and
sophisticated. They have grown from the relatively small scale of the
San Bruno Mountain HCP (3,000 acres; three species) to large scale
regional plans (such as the Metropolitan Bakersfield HCP) which
addressed dozens of species over hundreds of square miles of habitat.
The movement toward the development of large scale, multi-species
HCPs is driven by two primary factors:
1. The recognition that regional conservation issues often can only
be effectively addressed on a regional basis; and
2. The reluctance of private landowners to commit to permanent
restrictions on development and other costly conservation measures in
the absence of protection against additional regulatory restrictions as
a result of future listings.
One of the great potential advantages of the HCP process to the
development community is the opportunity, in one planning effort, to
resolve conflicts involving both listed and unlisted species through a
single HCP. The inclusion of unlisted species in a plan is important
because it provides some level of certainty that the FWS will not
impose additional obligations on the permit applicant in the future in
the event of the listing of a species.
The conference report to the 1982 amendments expressed the
congressional intention that HCP's not be limited to resolving
conflicts involving only listed endangered and threatened species.\24\
But the wildlife agencies and the environmental community have been
reluctant to agree to plans that absolve developers from the need to
provide additional mitigation in the event that the unlisted species
are subsequently listed--especially if the biological studies did not
specifically survey for and study the species.
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\24\ H.R. Rep. No. 835, 97th Cong. 2d Sess. 30.
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The Stephens' kangaroo rat HCP in Riverside County, California is a
good example of the folly of focusing a long-term HCP on a single
species. Acquiring the proposed kangaroo rat reserves has cost tens of
millions of dollars, yet there is no assurance that public acquisition
will protect other species in the area sufficiently to obviate their
listing under the ESA. Subsequent to the initiation of the Stephens'
kangaroo rat HCP, the FWS listed the coastal California gnatcatcher and
the quino checkerspot butterfly which are also found in Riverside
County. There is very little enthusiasm in the development community
for the imposition of development fees, and the expenditure of enormous
resources, necessary to protect the kangaroo rat only to turn around
and confront the same problem with the gnatcatcher and the quino
checkerspot.
The HCP process underway for the habitat of the gnatcatcher in
Southern California have broken new ground on this issue. Certain of
these so-called ``Natural Community Conservation Plans'' (or ``NCCPs'')
have been developed using ``target'' or ``indicator'' species as
planning surrogates for a larger list of species that occupy the
coastal sage scrub ecosystem. A committee of nationally-recognized
conservation biologists endorsed the target species approach.
Secretary Babbitt approved the first NCCP plan--the plan for the
Central/Coastal portion of Orange County, California--in July 1996. The
FWS approved a second plan, for the southern portion of San Diego
County, in late 1997. The Orange County plan establishes a reserve of
over 37,000 acres and comprehensively resolves conflicts involving
development within the coastal sage scrub habitat of the California
gnatcatcher and a large number of other species.
The biological rationale for the NCCP approach is that the
gnatcatcher and the other target species are strongly associated with
coastal sage scrub habitat in southern California, and thus, the
adequacy of the protections for the target species will be a test of
whether the HCP has adequately addressed the conservation of the
coastal sage scrub system. The target or indicator species approach now
being utilized in the NCCP process has also been advocated for HCP
planning efforts in other parts of the country.
In order to provide the kind of assurances typically required by
banks in order to obtain project financing, Congress may need to amend
the ESA to authorize explicitly the use of ``target'' and ``indicator''
species in the preparation of HCPs, and to authorize the issuance of a
Section 10(a) permit for all species found within the habitat types
addressed in the HCP, whether or not such species are specifically
identified in the HCP.\25\ In the winter and spring of 1996, a
coalition of environmental, real estate, timber, urban water, and State
fish and game agency interests negotiated a set of amendments to the
ESA to codify the NCCP approach in the ESA and explicitly to authorize
the use of ``indicator'' species in habitat conservation planning.\26\
This effort failed--in part due to the continuing ESA gridlock in
Congress, but also due to opposition from certain segments of the
environmental community who are antagonistic to any form of regulatory
assurances for private landowners.
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\25\ This concept is discussed in greater detail in R. Thornton,
Searching for Consensus and Predictability: Habitat Conservation
Planning Under The Endangered Species Act of 1973, 21 Environmental Law
605, 654-656 (1991).
\26\ For a discussion of these amendments see, C. Williams, Finding
Common Ground: Conservationists and Regulated Interests Pursue ESA
Reform Together 13 Endangered Species Update No. 6 (1996).
---------------------------------------------------------------------------
iv. new conservation planning approaches are needed to stimulate pro-
active conservation planning
Most of the HCPs developed to date have relied on command and
control regulatory mechanisms. Typically, biological consultants
identify areas that are the highest priority for future preservation.
Lines are drawn around these areas prohibiting or greatly restricting
development in the proposed preserve areas. Landowners developing
habitat outside of the preserve areas are required to contribute to the
acquisition of the preserves--usually through the payment of
development fees.
This model can work fine as long as the owners of land within the
preserve areas are willing participants. Often, this is not the case.
Unless the agencies are prepared to acquire all private parcels within
the preserve areas at fair market value without deducting for
constraints imposed by the ESA, the HCP soon devolves into a zero sum
game with distinct winners and losers. In the case of the one HCP in
which the preserve areas include thousands of landowners--the HCP for
the Stephens' kangaroo rat in Riverside County, California--many of the
landowners questioned the benefits of the HCP and, for some time,
opposed it.
The HCP process needs a new approach to address this problem--an
approach that eliminates the zero sum game problem by allowing
landowners that own valuable habitat to realize economic value from the
conservation and enhancement of that habitat. One approach, proposed in
Kern County, California, is a market-based system that would allow
landowners to create conservation credits by dedicating or enhancing
habitat and then sell those credits to developers as mitigation for
impacts on wildlife habitat. Using this approach, the preserve system
would emerge from market-based transactions rather than command and
control zoning regulations.
The plan under consideration in Kern County includes elements of a
traditional regulatory component and a market-based system. Market
driven transactions will determine the size, shape, timing and location
of the preserves within broader ``conservation zones'' identified by
the agencies. But the plan also includes a ``safety net'' that
prohibits development receiving authorization under the HCP from
exceeding a limit or ``cap'' on development in the conservation zones.
A market-based system relies on the efficiency and creativity of
the marketplace, rather than a command and control planning system to
ensure the conservation and enhancement of natural resources for the
protection of endangered species. A market-based approach has a number
of important potential advantages. First, it avoids the zero sum game
and resulting political and legal problems. Second, it ensures that the
conservation plan that emerges will in fact reflect a deliberate
conservation strategy rather than simply a politically feasible
planning arrangement. Market-based strategies hold out this promise
because the transactions using habitat credits would be required to
conform to the underlying conservation strategy of the plan.
Third, the market-based approach could be structured to provide
strong incentives to landowners to restore habitat on their property to
make money. Encouraging restoration holds out the promise of expanding
the balance of wildlife habitat and alleviating emotional fights over
the development of the last remaining endangered species habitat in an
area.
The approaches to market-driven solutions are potentially numerous.
Over the last few years, we have seen the emergence of increasingly
sophisticated and elegant market systems to encourage habitat
conservation.\27\
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\27\ For a discussion of one such market-based approach, see T.
Olson, D. Murphy, and R. Thornton, The Habitat Transaction Method: A
Proposal for Creating Tradable Credits in Endangered Species Habitat,
in Fischer and Hudson, Building Economic Incentives Into the Endangered
Species Act (Defenders of Wildlife 1993).
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__________
Statement of William C. Pauli, American Farm Bureau Federation
Good afternoon. I am William Pauli; I grow winegrapes in Potter
Valley, in Mendicino County, California where I own Braren-Pauli Winery
and Redwood Valley Cellars. Furthermore, I am President of the
California Farm Bureau Federation, and am appearing today on behalf of
the American Farm Bureau Federation and the California Farm Bureau
Federation. I welcome the opportunity to present testimony on the
practical implications of the Habitat Conservation Planning (HCP)
process on agriculture. This issue is extremely important, as HCP's in
general simply do not work for farmers and ranchers. HCP's do not work
for small farmers and ranchers at all. In fact, our experience in
California with the Regional Multispecies HCP's is that they are tools
for encouraging urban sprawl, and magnify the loss of good farmland by
forcing productive land into public habitat preserves.
As an initial matter we would like to emphasize that, given the
proper protection and incentives, farmers and ranchers can play an
important role in the protection and recovery of listed species. In
fact, the agencies must have the cooperation of farmers, ranchers and
private property owners if the Endangered Species Act (ESA) is going to
work. A report of the General Accounting Office\1\ found that over 90
percent of listed plants and animals have some of their habitat on
nonFederal lands, with 78 percent occupying privately owned lands. Only
about 34 percent of all listed species occur entirely on nonFederal
lands. Private landowners and private lands are clearly the key to the
Act's success. They do a better job than the government and they
contribute to the local tax base while they also support wildlife.
Farmers and ranchers, who own most of the suitable species habitat, are
especially important if the ESA is to succeed.
---------------------------------------------------------------------------
\1\``Endangered Species Act: Information on Species Protection on
Nonfederal Lands,'' GAO/RCED-95-16 (December, 1994)
---------------------------------------------------------------------------
Farmers and ranchers produce the food that feeds our Nation and
many others in the world. They are a vital part of local economies.
They support people who keep schools running, provide local jobs, and
provide opportunities for newcomers to this country. Our productive
farm and ranchlands are indispensable to our character and our future
as a nation. Farm and ranch lands need to continue to be productive in
order to continue meeting this considerable responsibility.
You must understand that there are two types of HCP's. There are
the HCP's for one or two species and one property--like the Red
Cockaded Woodpecker Plan. These can work for some large institutional
landowners--large timber operations for example or developers. Then
there are the regional multispecies plans. These work well for
developers, but their sole function is to mitigate for urban growth by
taking farmland out of production--destroying its food-producing
potential. Instead of preserving farms and ranches, the HCP process
encourages the opposite result, by taking agricultural lands out of
production and using them as mitigation lands for HCP-allowed urban
development. It is critically important for all species, including
humans, that we work with our farmers and ranchers to enhance the
habitat value of their properties in a way that does not impair the
present and future productivity of their land. Unfortunately, HCP's are
designed and controlled by ``-ologists'' who care nothing for human
needs, and by developers.
Many farm and ranch activities, if allowed to continue, actually
benefit listed species. Many species depend heavily on cultivated land
or rangeland for their continued existence. In California, for example,
a U.S. Forest Service study found that Swainson's hawks nesting in
sagebrush habitats more than one mile from cultivated alfalfa fields
suffered 100 percent nesting failure, while those nesting within one-
half mile of cultivated alfalfa fields enjoyed an 86 percent success
rate in rearing broods.
One of the largest nesting colonies of tri-color blackbirds, a
candidate species, was recently found in a San Joaquin Valley
grainfield. This species was recently determined not to be endangered,
specifically because of the numerous colonies hosted by California
farmers on their lands--at no cost to the American taxpayer.
We have found that several species of federally-listed kangaroo
rats are thriving in drip-irrigated vineyards after our members have
adopted some simple kangaroo-rat friendly rodent control measures.
Our western water supply networks, our levees, our water
impoundments, all offer tremendous opportunities for endangered
species--all wildlife--if only farmers and ranchers are helped and not
hindered by wildlife agencies.
Yet instead of encouraging farmers and ranchers to maintain and
improve species habitat on their lands, the ESA actually discourages
habitat conservation. The consultation requirements imposed by section
7 of the ESA and the prohibitions against ``taking'' listed species
imposed by section 9 of the ESA often impose blanket restrictions on
human activity and land use that penalize farmers for necessary
agricultural activities because some of the creatures supported by
their farms may be ``taken.'' This necessarily creates a negative
attitude of landowners toward listed species on their lands. The law is
turning wildlife into a significant liability for the farmer and
rancher.
Farm Bureau believes that endangered species protection can be more
effectively achieved by removing disincentives and providing incentives
to private landowners and public land users rather than by imposing
land use restrictions and penalties. Desired behavior is always more
apt to be achieved by providing a carrot rather than a stick. There is
no ``carrot'' provided by the Endangered Species Act as currently
written. This is important because it bears directly on the nature of
HCPs and why they were authorized.
i. habitat conservation plans are not suited for agriculture
The concept of the Habitat Conservation Plan had its origin in
California, and California has more approved or pending HCPs than any
other State by far. HCPs were envisioned as a mechanism to allow high-
value urban development of species habitat if other habitat were set
aside in mitigation. It was designed to give some relief to private
landowners from the otherwise absolute ``take'' prohibitions of section
9 of the Act. As the process developed, mitigation took the form of
either purchase or dedication of additional habitat, or payment of a
predetermined sum of money into a mitigation fund. In return, the
landowner was granted a permit for an ``incidental take'' of the
species if it was in the course of the approved activity. Because these
HCP's were designed for single project, one-time developments, in urban
areas, they never considered the problems of co-existing with species
in a working landscape. Farmers don't build and leave; they and the
habitat they provide live together. This worked pretty well until the
Endangered Species Act.
A. The HCP Process Is Not Affordable For Farmers, Ranchers And Most
Small Individual Landowners
Habitat Conservation Plans came into being in order to accommodate
land developers who were otherwise restricted from developing species
habitat by the prohibitions of section 9. The HCP process incorporates
a series of costly biological surveys and the development of an
extensive planning process whose central theme is habitat mitigation.
Once developed, the entire package must be approved by the Federal
Government before it becomes operational.
In practice, the HCP process has been costly, cumbersome and
controversial. The process requires extensive and expensive biological
data covering virtually every square foot of the proposed habitat area.
The data collection alone can cost a million dollars. It also requires
that a funding mechanism be in place to accomplish the mitigation
purposes of the HCP. In addition, the data required under the process
often takes several years to accumulate, making the process time-
consuming at best.
But even after all of the data requirements have been met and the
incidental take application has been accepted, it still must be
approved by the U.S. Fish & Wildlife (FWS) Service, a process which can
take several more years. Many applications have been pending with the
FWS for several years. Recently, only 40 of the more than 150 Habitat
Conservation Plans that had been submitted to the FWS had been
approved. So far in California, only one multispecies regional HCP is
complete and approved--a small one for the city of San Diego involving
use primarily of public land enhancement for habitat mitigation. There
is no guarantee that a carefully crafted and negotiated HCP will result
in FWS approval. Our experience has been frustrating with FWS
repeatedly raising new demands and endlessly renegotiating the HCP.
Kern County has been working for the better part of a decade on its
HCP.
As a result of these factors, the HCP process is generally
unsuitable and impractical for small private landowners like individual
farmers and ranchers. The extensive data requirements alone price
farmers and ranchers out of the HCP process. The mitigation
requirements are also much too expensive and burdensome for farmers and
ranchers to use on a practical basis. You simply cannot grow grain or
row crops or even grapes if you are going to have to give the FWS an
acre or more of land for every acre you plant.
As noted before, the HCP process was not designed to address
ongoing activities on land such as agricultural production. Rather, its
mitigation policy was designed to accommodate one-time development of
property that essentially removes that property as species habitat and
replaces it with mitigated habitat. Such a process applied to
agriculture serves neither the needs of species nor of people. Since
species depend on agricultural lands for habitat, the goal of an
agricultural habitat policy should be to find ways to maximize both
agricultural production and species habitat on the same agricultural
lands. We believe that such a policy can and would work.
The addition of the concept of ``incidental take'' was a positive
one. The ESA must be amended to allow this concept of habitat
conservation to be used for their ongoing activities by farmers and
ranchers who coexist with species, and not only by those who have high-
priced urban projects and can afford the exorbitant price tag. The
current system has created a two-tier exemption program that is
available to developers and the super-rich, but not to the smaller
businessman or the family farmer and rancher. Family farmers and
ranchers are being hurt most by the current application of the ESA.
But even the perceived ``super-rich'' are now bailing out of the
HCP process. A large industrial timber operation in California spent
millions to complete an HCP. After years of work, the company finally
dropped the entire process citing its cost, the inflexibility of the
Federal agencies, and the endless litigation that is caused by the
failure of the law to provide for a workable HCP process with real
safeguards for the landowner.
The current provision for HCPs in the ESA is too cumbersome and
inflexible. The provision and implementing regulations contain fairly
specific requirements that perpetuate the problem of making these
procedures largely unavailable for most farmers, ranchers and small
landowners. Section 10 and accompanying regulations provide such
specific and detailed requirements for HCP and incidental take permits
that there is little flexibility to adapt the HCP process. In order to
achieve the flexibility that is needed for an agricultural HCP process,
both the statute and the regulations will have to be amended.
B. Multi-Party Or Regional HCPs Fail To Adequately Consider The Needs
Of Local Agricultural Producers
Many areas within California are seeking to develop HCPs on a
county or regional basis. The advantage to such a process in theory is
that such plans will cover a more comprehensive habitat area and will
encompass a wider range of normal human activities. Instead of covering
one entity or one land use, a regional HCP could cover many different
types of normal activities within the HCP area. In practice, these
regional multispecies HCPs do nothing to relieve the disincentives for
the agricultural landowner, and only increase the conversion of
agricultural land to urban uses because of the expensive mitigation
such plans require. Land in these HCP's falls into two categories,
developed or habitat. Under the current process neither use is
consistent with maintaining a viable agricultural operation.
Agricultural land is classified as a habitat type, depending on
what species benefits the particular FWS staff office thinks it
provides. There is no consistency in--Kern County, row crop land is
given no habitat value (but landowners who build on it have to pay 1 to
1 mitigation!), but in San Joaquin County, row crop land is given the
second-highest habitat value. Mind you, this habitat ``value'' schedule
means that farmers can't change from one type of farming to another
without paying mitigation! FWS is in the business of agricultural
market control. We may all have to eat what they think provides the
best habitat value.
The role of agriculture within a regional or multispecies HCP
(MHCP) is different from nearly all other affected interests. This
difference is not taken into account in establishing the MHCP or in
setting its parameters. These basic differences are of such a nature
that affected interests within the MHCP area often benefit at the
expense of agriculture. Some of these differences are as follows:
1. The mitigation schedules that are so harmful to agricultural
production actually encourage conversion of agricultural land.
Agricultural producers have the most land within a MHCP area but often
have very little ready money. Developers and others who might take
advantage of the HCP process usually have money, but very little land.
Since the primary focus of the HCP process is on mitigation of habitat
loss caused by urban development (involving dedication of additional
lands for habitat), agricultural lands become prime targets for those
mitigation areas because they are cheap compared to urban lands. In
Kern County, for example, the mitigation ratio for using native lands
as mitigation is 3:1 acre of developed land. The mitigation ratio for
using agricultural lands for mitigation purposes is 1:1. The California
process thus actively encourages the use of our most valuable
agricultural lands for mitigation purposes under HCPs, thereby further
reducing the amount of agricultural lands available for the production
of food and fiber. By the same token, agricultural producers generally
cannot afford the same process of mitigation to increase the
productivity of their lands by changing crops, or to purchase more land
for food production. This is not a minor issue. For example all of the
land in San Joaquin County HCP is private farmland. In San Diego
County, more than 100,000 acres would be designated in the North San
Diego HCP, thus precluding any agricultural improvements on the land.
2. For those HCPs that involve the payment of mitigation fees
instead of purchase of mitigation lands by the applicant, developers
can pass along the costs to the ultimate users of the property whereas
farmers and ranchers cannot. Thus, for most within an HCP area, the
mitigation fee is merely a cost of doing business, whereas for the
farmer or rancher it is much more.
3. Outside of the specific land that they have targeted for
development, developers or the habitat authority itself care little
about what land is used or purchased for mitigation purposes. For them,
it is almost as if such land is a fungible commodity. However, for
farmers and ranchers who actually use the land, every aspect of their
land is unique in the role it plays within their operation.
4. Developers can complete their mitigation by the one-time
purchase of additional dedicated habitat or the payment of a mitigation
fee. The purchase of the additional land or the payment of the fee does
not affect the development because the land so purchased or mitigated
is outside their development site. Farmers and ranchers, who own most
of the suitable habitat within the HCP area must mitigate by setting
aside part of their own property. Without compensation and/or
incentives, the process of setting aside lands does not work for small
farmers and ranchers. Frequently, the mitigation requires them to take
more land out of production than they had desired to put in.
5. In most cases developers are engaged in speculative uses of the
land that involve future activity and not ongoing present activities.
HCP restrictions on land uses within the habitat area that might result
from required data collection activities or pending planning decisions
only affect the timing of the development of the speculative uses
without appreciable impact on present activities. In addition, once
those developers have received their permit and finish their projects,
they have no additional impacts. Farmers and ranchers, on the other
hand, use their property on an ongoing basis so that the same
restrictions placed by the HCP authority pending collection and review
of data have significant present impacts on current operations.
Furthermore, because their operations are ongoing, farmers and ranchers
are impacted at every stage and by every decision of the HCP authority.
Those impacts include continued liability for compliance with the
section 7 consultation requirements and the section 9 take
prohibitions.
6. In our experience, the HCP authority also imposes permitting
requirements on farmers and ranchers for activities that do not
currently require permits. Such activities might include grading,
plowing or discing land--activities considered normal farming practices
that are necessary to the continued use of the land for farming
purposes, and which cannot accommodate the uncertainty of the
permitting process.
7. Farmers and ranchers often use their property in ways that are
beneficial to wildlife and listed species, whereas developers do not.
Thus, in many cases farmers and ranchers can actually enhance habitat
through application of normal farming practices. These benefits,
however, are generally not considered or explored in the HCP process.
8. Value of land within an HCP area generally goes down simply by
virtue of its being included in an HCP. Theoretically, this value can
be restored as mitigation opportunities are identified. Since
agricultural lands are themselves the very ``mitigation opportunities''
that developers identify, the value of agricultural land is always less
than designated. In the Stephens Kangaroo Rat HCP, the HCP authority
became the only ``market'' for agricultural land, and the ``value'' of
such lands included in the HCP area was at the mitigation fee of $1,950
per acre--substantially less than actual market value outside the HCP.
The mere inclusion of property within a HCP is a per se declaration
that such property is habitat for a listed species, and its value drops
accordingly.
The practical impacts of these problems can be illustrated by a few
examples.
Pleasant Valley Habitat Conservation Plan
The impetus for this plan came from the town of Coalinga in western
Fresno County, an area that contains habitat for the listed kit fox,
blunt-nosed leopard lizard and the Tipton kangaroo rat. Coalinga is a
town of approximately 9,000 people. The Pleasant Valley Habitat
Authority sought to have a habitat area of approximately 250 square
miles, of which only 2.3 percent encompassed urban uses. Yet the
pressure for the HCP was from developers seeking to expand in urban
areas. Of the remaining area in the proposed HCP, 76 percent of the
land was either intensive agricultural lands or productive rangelands.
It became apparent that the extensive agricultural acreage was
proposed for inclusion in the HCP for only one reason--to provide lands
for mitigation so the urban developers could undertake their projects.
The plan was for these productive farm and range lands to be taken out
of production and dedicated for habitat for the target species so that
others could reap their own benefits. All of the benefits of this
proposed HCP were geared to these urban developers, and all the burdens
were projected to fall on agriculture. It was clear that there were no
benefits to the farmers and ranchers whose lands would have been
included in the HCP area.
The Fresno County Farm Bureau objected to the development of this
HCP on these grounds, and the HCP did not go forward.
Riverside County Habitat Conservation Plan
Another example that illustrates the problems experienced by
agriculture in the HCP process involves the Riverside County Habitat
Conservation Plan (RCHCP) that is for the protection of the Stephens
kangaroo rat.
The RCHCP scheme involves the establishment of a mitigation fund
administered by the Riverside County Habitat Conservation Agency. The
funds will go in part to purchasing mitigation lands to be dedicated to
habitat for the Stephens kangaroo rat.
The mitigation fee that as established was $1,950 per acre. Payment
of the fee and associated costs entitled the owner to make improvements
on the property. The fee is the same for both developers and farmers,
and therein lies its inequity. Agricultural production is a land
intensive business that involves little or no building. Buildings that
might be constructed are low density, low cost structures that pale in
comparison of value to residential or commercial construction. Yet the
mitigation fee is $1,950 per acre regardless whether the construction
is residential, commercial or agricultural.
An example will illustrate the point. A western Riverside County
poultry operation constructed a 30,000 square foot agricultural
building on 39 acres. The cost of the building was $340,000. The $1,950
per acre mitigation fee cost the operation a total of $67,500,
amounting to approximately 20 percent of the total cost of the
building. On the other hand, a typical subdivision might include four
houses per acre, resulting in mitigation fees of $487.50 per house. If
the homes were built for $100,000 each, the mitigation fee would be
less than .5 percent of the cost of construction. In addition, the
costs of the mitigation fee for residential or commercial development
can be passed on to the purchasers of such development. Farmers cannot
pass the fee along to anyone.
Farmers and ranchers in the RCHCP area have experienced other
problems due to their inclusion in the HCP area. They have been
prevented from discing or working their fields due to the suspected
presence of kangaroo rats. Even if their lands do not actually contain
the species, they are still prevented from using the land until it has
been cleared as a possible habitat or mitigation site. Most cannot
afford the $1,950 per acre mitigation fee it would take.
This Committee has heard several horror stories from residents
within the RCHCP area on previous occasions. Cindy Domenigoni has
testified that the family farm that has been in her husband's family
for several generations was prohibited from planting on over 800 acres
for 3 years because the farm was in the RCHCP area and therefore
kangaroo rat habitat. It was only after a government official remarked
that the species had moved out of their lands earlier that the
Domenigonis were allowed to resume operating on that portion of their
farm. This of course happened after fires ravaged the area and
eliminated the k-rat and their habitat.
The Committee also heard from several other victims of forest fires
in the area that occurred in 1993. Part of the restrictions for
protecting the kangaroo rat habitat involved prohibitions against
discing fields and removal of habitat. These prohibitions created
conditions conducive to swift fire movement through the area. In
addition, the discing prohibitions prevented people from creating
firebreaks around their homes to protect their residences. Some people
who obeyed the restrictions lost their homes to fire. Others who
ignored the restriction kept theirs.
By and large, the HCP process was designed to facilitate growth on
the outskirts of urban areas. Section 10a was written for only the
largest landowners who could afford the costs of the process and who
could pass the costs on to the ultimate purchasers. The HCP process is
poorly adapted to all segments of a community. There are few benefits
to farmers and ranchers, if any, from participation in the HCP process
as it is currently authorized. The entire process needs to be reviewed
and revised.
While titled ``habitat conservation planning,'' the HCP program
deals very little with the conservation of habitat. By focusing on the
``incidental take'' of individuals of a species as the end result of
the HCP process, the program focuses less on habitat development or
maintenance than on individual members of the target species. A revised
HCP process that truly involves ``habitat conservation'' and that
provides for the unique problems and benefits of the agricultural
landowner is called for, and it must be accomplished by legislation.
ii. proposals to increase the effectiveness of the hcp process and make
it more available for agriculture
The process for change must begin with a consideration of the
American farmer and rancher, and the role they play in the creation,
maintenance and development of wildlife habitat. In order to be
effective, the new HCP process must provide a ``carrot'' to the
landowners instead of a ``stick.'' For most farmers and ranchers,
removal of the ``stick'' would be welcome enough relief. Furthermore,
we have to recognize the importance of our farm and ranchlands to the
future of this country. We all know that we are losing more land than
we can afford. If we are to provide a secure food base for next
generation we can't afford to sacrifice our farm resource lands to
wildlife habitat or concrete and houses. In California, we have lost
nearly 400,000 acres to habitat in the 1990's alone (see attachment 1).
Farm Bureau is working at different levels to develop programs that
would remedy some of the problems described above.
A. Habitat Enhancement Landowner Program (H.E.L.P.)
In the San Joaquin Valley in California, a coalition of
agricultural organizations including the California Cattlemen's
Association, the California Farm Bureau Federation and others has
developed a proposal called the Habitat Enhancement Landowner Program
(H.E.L.P.). The H.E.L.P. program would provide a general incidental
permit program for participating agricultural regions. Under the
program, participating farmers and ranchers would be allowed to conduct
normal farm or ranch activities on their property and receive a general
incidental take permit for such activities or for emergency response or
repair activities. In exchange for dispensing with the normal section 9
taking prohibitions for such activities on their property, regional
committees of farmers and ranchers would agree to develop and implement
actions to improve or enhance species habitat on their lands. It is
designed to provide incentives for habitat management by removing the
considerable disincentives that currently exist. We believe this
program could usher in a new era of farming for food, fiber and the
future of wildlife.
As stated, the purposes of the H.E.L.P. program are as follows:
1. To develop a general permit program that will remove current
disincentives to habitat protection.
2. Develop a voluntary program that will enable farmers and
ranchers to conduct normal agricultural activities, and to undertake
additional actions that may benefit listed species, without threat of
liability for incidental take under either the State or Federal laws.
3. Maximize what willing landowners can accomplish on their
property by developing incentive mechanisms that will support species
and habitat conservation practices while at the same time maintaining
and protecting the long-term economic viability of their agricultural
operation.
The program is premised on the fact that farmers and ranchers want
to preserve listed species and that given the proper incentives they
will do so. For this program, the ``incentive'' is nothing more than a
suspension of the considerable disincentives that currently drive the
ESA. The program is also premised on the belief that farmers and
ranchers can do a good job in protecting species and their habitat, and
that normal farming and ranch activities are generally compatible with
habitat protection. California Farm Bureau Federation tried negotiating
with the Fish and Wildlife Service and the California Fish and Game
Department for adoption of this program.
Our own Fish and Game Department worked cooperatively with us--they
understand the value of agriculture to wildlife. The Fish and Wildlife
Service, on the other hand, sat silently at our meetings and refused to
work with us--they raised objection after objection and could never
commit to anything. As a result, this very valuable program for
maximizing both farm value and habitat value is still just a dream of
California farmers and ranchers. It's now clear that the only way this
common-sense program will be adopted, will be for you to pass
legislation mandating its adoption.
B. North Carolina Sandhills Habitat Conservation Plan
This limited ``safe harbor'' agreement is currently in place in
Moore County, North Carolina. This program is designed for the
protection of red cockaded woodpeckers and their habitat. The major
elements of this program are as follows:
1. FWS conducts an inventory of red cockaded woodpeckers (RCW) on
the lands proposed for inclusion in the program. This establishes a
baseline population.
2. The landowner agrees to manage the lands in such a way as to
protect this baseline population, and to conduct habitat improvement
activities on their lands. This is accomplished through a cooperative
management agreement.
3. There are no additional constraints on the landowner with regard
to additional RCW that may subsequently inhabit the lands.
4. As with the H.E.L.P. program, this program is voluntary with
landowners. In addition, the RCW program allows landowners to opt out
of the program at their option.
5. There will be no additional restraints placed on landowners
other than the management activities that they have agreed to
undertake. The guidelines to be followed are those in effect at the
time of execution of the agreement. Also, the habitat improvements
carried out under the agreement will not result in any additional
restrictions on the participating lands or neighboring lands.
6. Program participants are responsible for monitoring compliance
with the program.
Program administrators believe that even if private landowners opt
out of the program after a short time, there will still be benefits to
the red cockaded woodpeckers. The red cockaded woodpeckers have been in
decline on the private property within the program area for so long
that any beneficial habitat enhancement--however short--will help
reverse that decline.
Although valuable for highly focused species conservation efforts
keyed to critical needs of some species, this approach cannot be
extended regionally to cover normal activities or for covering multiple
species.
The North Carolina program is the only ``safe harbor'' agreement to
be approved thus far. Details on both programs will be provided for the
hearing record.
The safe harbor concept in North Carolina is positive. It shows
that a single-species HCP can work for single landowners, where a
positive working relationship is offered by the FWS. However, it does
not show that HCP's can work for multiple species or for regional
economic development. It will not work in the Western States, because
it is based on the premise of trust and cooperation between the
agencies and private landowners.
It's clear that landowners under the ESA are not treated the same
in the West when compared to other states. Where voluntary means to
preserve species in are allowed in some states, they are rudely
dismissed in the West where agency authority overrules everyone
including Members of Congress.
C. Critical Habitat Reserve Program
In addition to these specific programs, Farm Bureau has developed a
proposal for a voluntary program called the Critical Habitat Reserve
Program (CHRP) administered by the Secretary of Interior. Under the
proposal, the Secretary of Interior would enter into contracts with
willing landowners and public land users in areas designated as
``critical habitat'' for a listed species. The private landowner/
operator would agree to implement a plan for the management of a listed
species. Management plans would focus on actions that would enhance the
species instead of blanket land use prohibitions.
In return, the Secretary would provide the costs for implementing
the CHR program, pay annual rental and management fees to the private
landowners for the conversion of private property to CHR use, and
provide technical assistance and management training to cooperating
landowners.
The program would be voluntary, and must protect the private
property rights of both participants and non-participants alike. The
program must contain assurances that participants in the CHRP will not
be later restricted in the use of their property outside the terms of
their voluntary agreements. Participants who enhance species habitat
pursuant to their agreements to the point where other listed species
might also take up residence should not be restricted because of the
presence of these other residents.
The CHR contract would be for a period of no more than 5 years, to
coincide with the periodic species review mandated by the Act. In order
not to de-stabilize the economic base of the community, the CHR would
be restricted to no more than 25 percent of the total area of any one
county.
The program would also permit the enrollment of land that might
already be enrolled in other government conservation programs, and
would require consultation between the Secretaries of Interior and
Agriculture to ensure harmony between the CHR program and other
programs.
We believe that, given the opportunity and proper support from the
government, farmers and ranchers can do a better job of enhancing
listed species than the government. As experienced, practical land
managers who may have observed the species for a number of years, they
bring a working knowledge that government scientists do not have. More
importantly, they can offer day-to-day management of the species that
the government certainly cannot do. Such a program will result in
better management and greater chance for recovery of the species than
is provided under the current law.
We also believe that with the proper incentives and a respect for
private property rights of participants and their neighbors, farmers
and ranchers will be willing to participate in the program.
We would be happy to discuss this program with you in greater
detail.
D. General Provisions
It's clear that changes are needed to authorize and improve the HCP
process. The following elements are essential to the debate.
1. Compensation to affected landowners. The promise of incentives
alone will not work. The only way to ensure agency employees do not
abuse the law is to require compensation when their activities
undermine the use or value of the land. In those instances where land
is identified as critical to the survival of listed species, it should
be acquired by compensation, not regulation.
2. Participation in any HCP must be voluntary. County-wide or other
multi-species plans must not include any landowners who do not wish to
participate in this process.
3. HCP's must not be allowed that require any exterior habitat
buffers on agricultural lands. They must instead, provide protection
for adjacent landowners should listed species migrate onto their
property. We must stop turning endangered species into a nightmare of
liability for neighboring landowners.
All four of these proposals are designed to maximize protection of
species habitat while minimizing disruptive impacts to private lands.
They are designed to avoid the ``train wrecks'' caused by species-human
conflicts by removing the conflicts. Finally, and most importantly,
they are designed to replace the ``stick'' of negative ESA enforcement
through section 7 and section 9 restrictions with a ``carrot'' approach
to habitat management. All sides to these proposals realize that this
approach is a ``win-win'' situation for both species and for people.
That is why the North Carolina proposal was in part supported by the
Environmental Defense Fund. These changes are designed to encourage
landowners protect and enhance species habitat because they want to,
and not because they have to. This simple attitude adjustment makes a
world of difference for habitat protection, and may turn the current
horror stories of the ESA into success stories.
But these changes will require legislation. Some believe that the
current section 10a is sufficient to enact these subtle but important
changes, but we have doubts whether the current statutory language
would allow such provisions. The current section 10a may work well for
the larger landowners and developers, and they may want to retain that
section. One thing that Farm Bureau has learned through participation
in several HCP negotiating exercises is that different landowners have
different interests and goals as far as the HCP process is concerned.
We believe that enactment of a separate section to protect agricultural
producers and small landowners along the lines outlined in the four
proposals above is appropriate and necessary if this Nation is to
preserve both the capacity to produce food for its residents and
protect species from becoming extinct.
iii. ``no surprises'' policy
Under this policy, landowners entering into cooperative agreements
for the protection and maintenance of habitat would not be required at
some later time to undertake additional mitigation measures for species
covered under the plan. In other words, the government would be bound
by what it promised in any landowner agreement.
This should be a necessary element of any agreement that any
landowner would enter with the government. While it protects landowners
from being hit with any additional requirements that they might not
have agreed to, it does not begin to solve any of the problems that
farmers and ranchers experience with HCPs or with the Act. If anything,
even the need for such a policy illustrates the problems of dealing
with the government, and the problems faced by farmers and ranchers
under the ESA.
conclusion
All of the proposals that we have discussed above benefit different
elements of the public and at the same time benefit endangered or
threatened species by conserving, managing and enhancing habitat.
Different proposals use different methods and benefit different
segments of the community. One plan does not fit all.
Agricultural interests do not benefit from current HCPs because it
is their lands that are eyed for mitigation. Further, they generally
cannot afford the mitigation fees that can be paid by large developers
and passed on to ultimate purchasers. The CHRP or the broader H.E.L.P.
type of agreement is better suited for agricultural concerns. In
addition, requiring compensation under this process keeps everyone
honest when it comes to ESA regulations. Requiring the landowners
consent to include land in a designated HCP is only fair.
We urge the Committee to consider these proposals as a coordinated
policy that benefits both listed species and people. It is a situation
where everybody wins, and affected interests from all sides should
embrace such an effort. Also, demonstrating that the interests of
species and people can be accommodated through the enactment of such a
coordinated policy might open the door to other necessary ESA reforms.
conversions of productive farmland to habitat since 1990
State Agricultural Land Acquisitions: 307,251 acres
Federal Agricultural Land Acquisitions: 36,172 acres
CALFED Agricultural Land Acquisitions: 40,023 acres
All Government Agricultural Land Acquisitions Totaled: 383,446
acres
All acreage totals are either previously acquired, in the
process of being acquired, or are actively being sought for acquisition
(i.e., the agency is looking for willing sellers in the project area.)
All of the aforementioned purchases involve agricultural
resources, as far as we know. As better information becomes available,
we will update these figures.
Undoubtedly, more agricultural land conversions have
occurred than we have listed in these figures.
The best information available states land acquisitions in
terms of whether agricultural resources are involved, and total acres
of the project. This means that some of the acres purchased were not
agricultural. Currently, there is no way to determine the acreage
break-down for each project. Thus, if agriculture is involved, the
whole project is treated an agricultural conversion.
Definition of Agricultural Land = agriculturally zoned
parcels, and/or parcels currently or previously in agricultural
production.
These land totals are basically the same parcels as
depicted on our preliminary land acquisition map. The only change is
the addition of 14,400 acres that are currently being purchased by
State agencies. These additional parcels were discovered through State
Clearinghouse records and conversations with Farm Bureau Executive
Directors who are familiar with the circumstances of these projects.
Northern California Water Association (NCWA) Publication on Land
Conversions Land Acquisition and Habitat Protection in the Sacramento
Valley, September 28, 1999 Attachment 1 to Statement of William Pauli
on October 19, 1999. (Table 1)
Table 1
------------------------------------------------------------------------
Program Acres
------------------------------------------------------------------------
DFG Wetlands Easements.................... 2,371
State Wildlife & Ecological Reserves...... 116,900
WCB Inlands Wetlands Conservation......... 3,565
DWR/Rec Board Mitigation.................. 1,625
Department of Parks and Rec............... 700
State Lands Commission (a)................ 12,000
NRCS Wetlands Reserve Program............. 12,397
BLM....................................... 12,574
USFWS Conservation Easements.............. 26,781 (24,316 = acres in
easements)
Sacramento NWR Complex.................... 33,593
The Nature Conservancy.................... 51,290
Bay-Delta Ecosystem Funding............... 5,090
Total................................... 278,886 (W/O TNC=227,596)
------------------------------------------------------------------------
These totals do not include access acquisitions or habitat
restoration projects. (Table 1, FN 1.)
Bay-Delta Ecosystem funding includes = Prop. 204, Category III,
Federal Bay-Delta Act, and CVPIA Restoration Funds. (Table 1, FN 4.)
These figures only refer to the Sacramento Valley.
(Introduction)
Approximately 3.6 million acres are contained within this area,
of which 1.85 million acres are dedicated to irrigated agriculture.
(Introduction.)
The acquisitions in the NCWA publication will duplicate some of
the FB generated ``agricultural land conversion'' data.
Table 2.--NCWA Proposed Acquisitions
------------------------------------------------------------------------
Program Acres
------------------------------------------------------------------------
Central Valley Habitat Joint Venture 54,400
Wetlands.
Upper Sac. River Acquisitions--BLM........ 4,000
BLM ``Exchange Lands''.................... 10,000
Sacramento River Inner Zone............... 10,200
CALFED ERP Riparian Acquisitions.......... 15,000-20,000
Inks Creek Conservation Easement.......... 13,000
Stillwater Plains Conservation Area....... 2,667
Total................................... 104,300-114,300 acres
------------------------------------------------------------------------
______
Statement of Rudolph Willey, President, North California Presley Homes
Before Presley purchased our land in San Jose in 1997, we were
aware that the property had once been occupied by the threatened Bay
checkerspot butterfly. We contacted the nationally recognized Stanford
conservation biologist, Dr. Dennis Murphy (who addressed this
subcommittee on July 20 on science and habitat conservation planning),
because he was the scientist who petitioned the USFWS to list this
butterfly, and no individual is more committed to this species. We were
told by Stanford University scientists who studied this species for
decades, that the butterfly had abandoned the site in 1990 and that
weedy exotic grasses had almost entirely replaced the host plants which
the butterfly requires to survive. The butterfly would be unable to re-
colonize this site on its own because of this weedy invasion.
Dr. Murphy worked with Presley to develop a plan to conserve nearly
two-thirds of the area onsite that was once occupied by the butterfly,
eliminate the non-native weeds, restore native plants, and bring
butterflies back to the site. (A condition that would never exist again
without aggressive habitat management.) These objectives formed the
basis of our draft HCP, which took many months and $300,000 to produce.
Even though there was no listed animal species on the property, and
thus no incidental take permit was required, Presley chose to purse an
HCP and Section 10 permit voluntarily because it would be prudent to
obtain the ``No Surprises'' assurances, and because it was the right
thing to do. The HCP included extraordinary conservation commitments,
with specific biological goals of:
71 acre permanent butterfly habitat preserve, including 17
acres of host plants
20 major plant conservation areas--
The first agency sanctioned man-made California tiger
salamander pond
Substantial avoidance/Translocation of listed plants
The HCP also included an exemplary adaptive management plan with
some of the following points:
An Environmental Trust to which Presley will deed over 50
percent of the 575 acres and provide initial funding of $1.6 million.
Thereafter, the trust will receive $200,000 a year in
perpetuity for professional biological management and monitoring of the
preserved lands.
Given the voluntary nature and progressive scope of the HCP,
Presley expected the plan to be embraced by the Service. Instead, the
Service has fought this project at every turn, and refused to act on
the HCP at all. Presley met with the Sacramento Field office several
times before drafting the HCP. We then submitted our HCP and Section
10(a) permit application and fee in October 1998 and the following
month had a formal meeting with Service staff to present our plan. At
this and subsequent meetings, a Service staff biologist asserted that
nearly the entire 575 acres constituted ``habitat'' for the butterfly,
that the current unsuitability of the habitat for the butterfly did not
matter, the fact that the species could no longer survive there without
heroic management did not matter, and the 4 year complete absence of
the species on the site (as confirmed by annual surveys) did not
matter. He did not offer any empirical or scientific evidence to
support any of these opinions. At the conclusion of this meeting,
Service staff and management agreed to produce and deliver written
comments to Presley's draft HCP within 2 weeks. The comments never
came. After three and a half months of calls, and letters to the Chief
of the Service's California/Nevada Operations Office which were never
answered or acknowledged, we contacted the Field Supervisor of the
Sacramento office. He said he had a letter from the Service to give us,
but wanted to talk with us and Dr. Murphy first. We pointed out to the
Field Supervisor of the Sacramento Office that since we had no listed
animal species onsite we could legally grade without having an
incidental take permit. He agreed, and said he had told his staff that
unless they cooperated in this engagement that they would lose their
opportunity to influence this project. He also said that he was
powerless to override or direct his subordinates' actions since he
feared lawsuits from third party special interest groups. He concluded
with saying that he was not going to give us the letter.
We then proceeded, obtaining the appropriate permits from
California Department of Fish and Game, the U.S. Army Corps of
Engineers and obtained a waiver from the Regional Water Quality Control
Board. At every step, personnel from the Service repeatedly called and
wrote these agencies demanding they deny Presley at every approval. In
every instance, after extensive consultation, each agency agreed that
the Service had no jurisdiction. In June, the Army Corps of Engineers
authorized Presley to fill less than one half acre of wetlands and
concluded that the Corps' permitting action would not affect listed
species, thereby denying the Service a Section 7 consultation on the
project. San Jose issued Presley a grading permit allowing for clearing
of the site and Presley began work.
The Service inexplicably passed on a Section 10, did not get a
Section 7 consultation with the Corps and did not take Section 9
enforcement action. Instead, they stepped completely out of the
regulatory process. First, they sent documents to private interest
groups which were then used by these groups to sue another Federal
agency (the Army Corps) and Presley. Then they sent the City of San
Jose threatening letters and e-mails asserting, with no substantiation,
that grading the site would cause illegal ``take'' of the butterfly and
the City would be held liable for such a ``take''. The Service urged
the City to withhold any more grading permits. The City capitulated to
these threats, explaining to Presley that the Service was holding up
$3.5 million in Federal funds for City projects, that they did not want
to upset the Service for fear that they would lose that money and would
not issue Presley's further grading permits.
We have been at a dead stop for almost 3 months now. We may not be
able to grade until at least next spring at a cost of approximately $3
million. We have contacted every level of the service to get this
resolved. They did acknowledge 2 weeks ago that there was no take,
would be no grounds for a Section 9 action, and said that I could have
a letter to that effect to show the City of San Jose. Although it has
been promised on almost a daily basis, we just received a qualified
letter this last Friday, October 15.
I ask you, where is the certainty in the regulatory process for me
as an applicant? I ask you, how can it be acceptable to the Congress to
have the Fish and Wildlife Service simply ignore the ESA and its duty
to implement the Act, and instead wage an improper, ideological
campaign to stop this project? What does the Service have against HCPs,
especially one this generous? Unfortunately, for the endangered
species, I'm afraid this is sending the wrong message to the
development community, not to become involved in the HCP process. I
think HCPs, in theory, are a great idea. Yet, we can't escape the irony
here . . . the developer attempting to protect and restore the species,
and the Service trying to block that effort.
Presley Homes List of Exhibits
------------------------------------------------------------------------
Exhibit No. Exhibit Description
------------------------------------------------------------------------
1. Executive Summary to Presley's draft
HCP. A full copy of the HCP is
available by contacting Sharla
Moffet-Beall at Senator Crapo's
office or by contacting Laura Murray
at Presley Homes (925)229-8880.
2. October 9, 1998 letter from H.T.
Harvey and Associates to Bill
Lehman, Chief of the Conservation
Planning Division at the USFWS/
Sacramento office. This is a short
but comprehensive letter which
accompanied the section 10(a)
application and submitted the draft
HCP.
3. Pages 1-10 of the Environmental Trust
for the Ranch on Silver Creek. A
full copy of the Environmental Trust
is available by contacting Sharla
Moffet-Beall at Senator Crapo's
office or by contacting Laura Murray
at Presley Homes (925)229-8880.
4. December 21, 1998 letter to Bill
Lehman, Chief of the Conservation
Planning Division at the USFWS/
Sacramento office from David Moser
of McCutchen, Doyle, Brown and
Enerson, LLP, requesting written
comments to the HCP promised by the
service, now overdue.
5. January 27, 1999 letter to Mike
Spear, Manager, California/Nevada
Operations Office from David Moser
requesting written comments to the
HCP now three and a half months
overdue. This letter was never
answered or acknowledged.
6. March 28, 1999 letter to James Meek
at Presley Homes from Dr. Dennis
Murphy detailing his conversations
with Service staff biologists. Even
though Dr. Murphy is a leading
expert on the butterfly, an agency
staffer questions his competence.
7. July 23, 1999--An e-mail from David
Wright, a staffer at the Service, to
the City of San Jose asserting a
take and warning the City of its
liability. ``Mass grading on the
site would cause increased take of
listed wildlife. Presley Homes does
not have a permit from us for this
take, nor does the City of San Jose.
I think it's important you be aware
that courts and cities and local
governments can be liable for their
actions that result in a take.''
8. July 28, 1999 letter from Wayne
White, Field Supervisor at the USFWS/
Sacramento office to Joe Horwedel,
Deputy Director of the city of San
Jose Planning Department urging the
city to deny Presley grading permits
or the city may be held accountable.
9. September 29, 1999--An e-mail from
USFWS staffer, David Wright, to Joe
Horwedel, Deputy Planning Director
at the city of San Jose. This e-mail
was sent after the Service told
Presley that the official decision
was no take and details how USFWS
wants to approve site erosion
control methods and implies that
even the erosion control may result
in a take and is offering to
indemnify the city from it.
10. Service Recommended Helpful Hints vs.
Actual HCP Process for the Ranch on
Silver Creek. These ``helpful
hints'' are excerpted from November
1996 issue of the ``Endangered
Species Habitat Conservation
Planning Handbook'', a reference
book for Service biologists and for
applicants. In the left hand column
are the helpful hints and in the
right hand column are the actual
experiences.
11. Aerial photo of the Ranch on Silver
Creek. Note the housing projects
surrounding the site as well as
Highway 101 along the west side of
the project.
------------------------------------------------------------------------
______
Exhibit 1
executive summary
The 575-acre Ranch on Silver Creek is a master-planned residential
and golf community designed and developed by Presley Homes of
California. Located at the northern end of the Silver Creek hills in
San Jose, California, the project comprises approximately 88 acres of
homes in several residential neighborhoods, 280 acres of habitat and
open space, 18 acres of common area open spaces, 13 acres of roadway,
160 acres of golf course (including clubhouse, parking, and golf course
maintenance facilities), and 16 acres of regional and public park
facilities.
The project site is located on the northern end of a northwest-
trending ridge of the Silver Creek Hills. Elevations range from
approximately 819 feet national geodetic vertical datum (NGVD) at the
top of the ridge on the southeastern boundary to 200 feet NGVD on the
western edge of the site. The moderately steep, rounded hills support
numerous rock outcroppings and broad drainages. The site is underlain
at the surface by serpentine and sandstone. The northern half of the
site drains to Silver Creek, a perennial stream that originates above
the Silver Creek Country Club project, while the southern half of the
site drains to an unnamed tributary (Hellyer Canyon). All flows from
the project site eventually travel to Coyote Creek. The site is
dominated by non-native annual grassland on a serpentine substrate (92
percent). It also includes relatively small areas on non-native annual
grassland on a non-serpentine substrate, Diablan sage scrub, freshwater
ponds, seeps, and marshes, and central coast live oak riparian forest
habitats.
The species that will be covered by the HCP and Incidental Take
Permit include the Bay checkerspot butterfly (Euphydryas editha
bayensis; federally threatened), Santa Clara Valley dudleya (Dudleya
setchellii; federally endangered), Metcalf Canyon jewel-flower
(Streptanthus albidus ssp. albidus; federally endangered), Mount
Hamiltion thistle (Cirsium fontinale var. campylon; CNPS 1B), and
California tiger salamander (Ambystoma californiense; federal candidate
species).
The project site has historically supported populations of the Bay
checkerspot butterfly. As late as 1993, it was estimated that 25
percent of the northern Silver Creek Hills population (65 percent on
Silver Creek Country Club and 10 percent on Chelmer/Wong) occurred
onsite. However, extensive surveys conducted between 1996 and 1998
failed to detected larvae and adult butterflies onsite. In addition,
the quality and quantity of the habitat onsite had dramatically
declined. Presently, no butterflies and no suitable habitat exist
onsite for the butterfly.
The project site presently supports numerous populations of Santa
Clara Valley dudleya totally 21,947 individual plants. Several
populations of the Metcalf Canyon jewelflower occur onsite that support
approximately 75,000 plants and several populations of Mt. Hamilton
thistle of 3,000 plants were also documented.
A small pond (approximately 24,000 square feet) north of the old
quarry onsite supports breeding for the California tiger salamander. A
maximum area of approximately 25 acres circumscribes the total
estivation habitat for this pond.
It has been estimated that 3,836 individual dudleya plants (17.5
percent of the onsite population), no Metcalf Canyon jewelflower
plants, and 350 individual Mt. Hamilton thistle (11.7 percent of on-
site population) will be directly lost due to project implementation.
Current development of the project site will likely not result in
``take'' of any life stage of the Bay checkerspot butterfly because the
species is absent from the site. The possibility of take, however, does
exist if immigrant females entered the site, laid eggs, and the larvae
succeeded in reaching diapause during the 1998 or subsequent seasons.
The project would result in loss of breeding and estivation habitat
for the California tiger salamander. The maximum impact would total 25
acres.
Impacts to the plants will be mitigated by the establishment of 20
Plant Conservation Areas (PCA). These areas will be set aside and
monitored into perpetuity. The objective of the dudleya mitigation is
to replace through restoration all plants and the habitat lost during
project implementation. On-site restoration will be comprised of
several different elements, including: (1) salvage dudleya plants from
serpentine rocks and transport them into suitable PCA's; (2) recreate
dudleya habitat on suitable unoccupied habitat; (3) transplant
container-grow plants into existing ``unoccupied'' rock outcrops; (4)
create new habitat by fracturing unoccupied rock; and (5) plant dudleya
seed collected during the salvage effort into recreated dudleya
habitat. Mitigations for Mt. Hamilton thistle include: (1) salvage
mature plants from within the impacted drainages and transport these
plants into adjacent reaches that do not currently thistle; and (2)
collect seed from both impact and non-impact plants and distribute into
suitable unoccupied habitat onsite.
An approximately 71-acre Butterfly Conservation Area (BCA) will be
established and managed for the butterfly into perpetuity. The goal of
the BCA is to support a minimum of several hundred Bay checkerspot
butterflies on a long-term basis. Management goals of the BCA include
the establishment of 17 acres of Plantago erecta in densities of
several hundred plants per square meter. This is expected to be
accomplished by manipulating areas of 5,000 to 10,000 square feet and
then seeding these areas with Plantago erecta, the larval food plant.
In addition, this area will be grazed in a winter/spring phase so as to
maximize the competitive advantage of the Plantago erecta patches.
The loss of tiger salamander habitat will be mitigated by
preservation of offsite habitat (within a 40-50 mile radius) at a 1:1
ratio (breeding and estivation habitat) and the creation of new
breeding habitat onsite. The offsite area should consist of a breeding
pond (or pond complex) and must include adequate estivation habitat. In
addition to offsite acquisition, tiger salamanders would be salvaged
from the impact site and transferred to the new breeding habitat.
The incidental take permit will be in effect for 7 years from date
of issuance. The permit will allow Presely Homes or its successors to
take the species covered by this HCP over that time period within the
geographical boundaries and during the implementation of otherwise
lawful activities identified in this HCP.
______
Exhibit 2
H.T. Harvey & Associates,
Alviso, CA, October 9, 1993.
Mr. Bill Lehman,
Chief, Conservation Planning Division,
U.S. Fish and Wildlife Service,
Sacramento, CA.
Subject: The Ranch on Silver Creek (aka ``Cerro Plata'') HCP (PN 1315-
01)
Dear Mr. Lehman: Enclosed is the Habitat Conservation Plan (HCP)
and Endangered Species Act (ESA) Section 10(a) incidental take permit
application for the Ranch on Silver Creek. Dave Moser (applicant's
attorney) notified you in a September 24, 1998 letter that we would be
submitting this application on behalf of Presley Homes. This HCP is a
significant effort in coalescing all known data on the biology of
several serpentine endemic plant and animal species. This document was
prepared by staff biologists with significant experience with the
relevant species from H.T. Harvey & Associates and Sycamore Associates.
For example, several experts (a combined 80-plus years experience with
research of the butterfly) of the Bay Checkerspot Butterfly contributed
significantly to the sections related to the butterfly (e.g. Dr.
Raymond White) or were consulted as reviewers of the document (e.g. Dr.
Dennis Murphy). Other biologists contributed by conducting surveys on
the site since the early 1990's (e.g. Drs. Alan Launer and Stuart
Wiess).
The Presley environmental team has met on five separate occasions
with staff biologists of the Endangered Species Division (ESD). These
staff members include Jim Browning, David Wright, Betty Warne, and
Diane Elam. These meetings have included two meetings with the Service
in Sacramento and three meetings on the project site. Not all Service
staff members attended each meeting, but Browning. Wright and Warne
were present at three of the five meetings. We invited (through ESD) a
representative of the HCP group to one of the Sacramento meetings, but
were informed that the HCP group would only become involved once an HCP
was submitted to the Service for review. We also requested that the
Service staff (i.e., Browning, Wright, and Warne) provide us any
examples of HCP's they believed satisfactorily handled similar level of
issues; recognizing an HCP addressing these same species may not be
available. However, no examples were provided to us, so we relied on
the HCP handbook and other accepted HCP's such as those prepared for
the City of Bakersfield and the Natomas Basin.
We believe this HCP represents a significant effort at avoidance,
minimization, and compensation for impacts to the relevant species.
This document should serve as a significant basis for the protection of
significant populations of several serpentine plant species and allow
rehabilitation of the site for the Bay checkerspot butterfly.
To this end, we have based the general goals and objectives of this
HCP, to the extent possible, on the goals and objectives of the Draft
Recovery Plan for Serpentine Soil Species of the San Francisco Bay
Area. Specifically this HCP will:
Protect and restore 71 acres that formerly supported the
Bay checkerspot butterfly. In addition, significant Plant Conservation
Areas will be established onsite for Santa Clara Valley dudleya,
Metcalf Canyon jewelflower, and Mt. Hamilton thistle. Nearly 18,000
dudleya plants will be protected onsite, 4,000 dudleya plants directly
impacted will be relocated and at least one of the plant conservation
areas will protect a population of over 2,000 plants.
Contribute research on co-management of dudleya and Bay
checkerspot butterfly habitat. The Butterfly Conservation Area also
supports a large population of dudleya.
Require on-going monitoring of the butterfly and plant
conservation areas.
Allow translocation of butterflies to conservation area if
allowed and feasible.
Provide for adaptive management for all conservation areas
onsite.
Develop educational programs for homeowners, golfers and
local residents of the unique resources onsite.
Support research on various aspects of the Bay checkerspot
butterfly biology and on seed germination, propagation techniques, and
demographics of the plant species covered by the HCP.
We believe this plan allows for the protection, preservation,
restoration and adaptive management of the significant serpentine plant
and animal resources onsite and look forward to discussing the approach
and focus of this document. We hope that the HCP reviews process can
speedily evolve into a productive and cooperative relationship between
the Service and the Presley team. We recognize that comments on this
document will tend to fall into the categories of form and content. We
would propose that our initial efforts with the Service focus on
content (e.g., the biology of the species and specific mitigation
programs), leaving issues relating to form for later discussions.
Sincerely,
Rick A. Hopkins, Ph.D.,
Wildlife Ecologist and Project Manager.
______
Exhibit 3
Environmental Trust for The Ranch on Silver Creek, San Jose,
Santa Clara County, CA
i. introduction
The plan for the Environmental Trust for The Ranch on Silver Creek
(Trust) is a traditional concept that uses a modern approach. The Trust
is rooted in the American tradition of land stewardship for
environmental protection, and utilizes state-of-the-art knowledge and
scientific approach for adaptive resource management. The essence of
the concept is that Presley Homes, the project developer, will protect
the resource-critical portion of The Ranch on Silver Creek (about 52
percent of the site or 298 acres) by deeding it to the Trust and
ensuring that the Trust has an adequate financial base to assure the
best chance for survival and recovery from pre-existing conditions for
endangered plants, animals, and habitats.
The key to Presley's plan, and what sets it apart from nearly all
other currently implemented resource management programs required as
mitigation, is that the protection and scientific management of the
sensitive resources is provided for in perpetuity rather than for a
limited number of years.
ii. resources worth protecting
The Ranch on Silver Creek has significant resources to protect and
manage, including plant and animal species, wetlands and riparian
habitat, and serpentine habitat (see Attachment A, Site Photographs).
The project has been designed to avoid as many of these resources as is
feasible. The following paragraphs summarize these plant, animal, and
habitat resources that are present on the project site, and quantify
the degree of avoidance that the project design has produced. The
Project avoidance percentages listed below represent the amount of the
onsite species population that has been avoided by the project.
Listed Species
Federally Endangered plants:
Santa Clara Valley dudleya (Dudleya setchellii) [project
avoidance 82 percent]
Metcalf Canyon jewelflower (Streptantus albidus ssp.
albidus) [project avoidance 100 percent].
California Native Plant Society 1B-ranked plants:
Mount Hamilton Thistle (Cirsium fontinale var. campylon)
[project avoidance 88 percent]
fragrant fritillary (Fritillaria lilacea) [project
avoidance 89 percent]
chaparral bush mallow or Hall's bush mallow (Malacothamnus
fasciculatus) [project avoidance 100 percent].
As indicated, these rare plants are largely avoided by the proposed
project.
The site is also habitat for the State species of special concern
and Federal Candidate species, California tiger salamander (Ambystoma
californiense). An onsite translocation project has been conducted in
1999 for this species, relocating it into a pond newly created for the
salamander. Please see Attachment B for a complete list of Special-
status plant and animal species, their status, and known or potential
occurrence on The Ranch on Silver Creek project site, San Jose.
Project mitigation includes management and restoration of pre-
project populations of dudleya and jewelflower. Transplanting,
propagating, seeding, and enhancing and creating potential habitat are
among the conservation measures planned to assure this success.
The site also has noteworthy potential for the development of
viable habitat for federally threatened Bay checkerspot butterfly
(Euphydryas editha bayensis). Currently, this species is not present,
but the Environmental Trust will create the proper host and food plant
community to sustain the butterfly on 17 acres within a 71 acre
preserve. The butterfly formerly occupied this portion of the site,
therefore the soils, aspect, slopes are suitable to habitat
restoration, provided a management regime favorable to the host plants
is implemented.
Wetlands and Riparian Habitat
Ninety-one percent of the 4.70 acres of wetland arid riparian
habitats on the site are avoided by the project. Ninety-six percent (of
the 10,270 linear feet) of the two major riparian corridors will be
avoided: Silver Creek, consists of a main stem (3,200 feet
in length) and a tributary (1,600 feet), and Hellyer Creek
consists of a main stem (4,900 feet) and a tributary
(1,000 feet). Lower Hellyer Canyon also includes an on-
stream pond of 15,190 square feet surrounded by 4,495 square feet of
riparian habitat. Silver Creek is a rich riparian corridor with an
abundant community of riparian forest and shrubs. In contrast the
Hellyer Creek corridor consists of herbaceous vegetation and very few
trees. A portion of the Silver Creek riparian corridor will be deeded
to the City of San Jose as a part of the Silver Creek Linear Park; the
balance of the riparian corridors is to be owned and managed by the
Trust. There will also be an additional 0.75 acre of constructed
wetlands in lower Hellyer Canyon and a California tiger salamander pond
of 0.22 acre has already been built in upper Hellyer Canyon.
Serpentine Habitat
Since this site is predominantly serpentine habitat, there are many
endemic species which could occupy and potentially use the site. The
Trust has a special opportunity to enhance this site for these species.
The U.S. Fish and Wildlife Service in the Recovery Plan for Serpentine
Soil Species of the San Francisco Bay Area (1998) points out that these
are unique habitats worthy of protection. The Service also notes that
in most cases the lands require active management in order to maintain
and enhance habitat values for the 14 federally listed species and 14
species of concern of plants and animals that occur exclusively or
primarily on serpentine soils and serpentine grasslands in the San
Francisco Bay Area.
iii. rationale
The Ranch on Silver Creek project impacts natural resources of
national, state, and local significance. Wetlands, endangered and
threatened species, and critical habitats are being adversely affected.
Mitigation measures usually required by regulatory agencies include
avoidance, minimization, and/or compensation through habitat
enhancement or habitat creation. The Ranch on Silver Creek has
exercised significant avoidance and minimization of impacts, and
provides for compensation.
In most other resource management programs, open space is put into
a permanent conservation easement and a funding mechanism, such as the
local Homeowner's Association, provides for long-term management of
these resources. Such easements and funding are frequently required as
conditions of project approval. Unfortunately, permanent funding and a
Homeowner's Association are not enough to assure permanent professional
management of the resources. Such management is usually needed to
provide a good chance of long-term survival for listed species and
enhancement of habitat. Homeowner's Associations are ill-equipped to
manage or oversee management of natural resources. Furthermore,
effective long-term (i.e. permanent) management can only occur with
certain administrative elements, which typically are not incorporated
into the long-term plan. These elements include:
(1) Permanent record keeping of materials on management procedures
and practices including: environmental site documents, methodologies of
measurement, results of prior studies, information on benchmarks for
plot or sample locations, photography for repeat studies, and results
from long term monitoring. Inadequate record keeping seriously
undermines the validity of any management strategies or resource
studies.
(2) Regular professional staff assigned to the site/resource to
continuously perform and/or oversee management practices, scientific
studies, and data collection. This is especially important because, as
the regulatory agencies have repeatedly pointed out in species recovery
plans, developing the underlying scientific knowledge for effective
management of many of these habitats and species will require years or
even decades of studies, experiments, and experience with adaptive
management and specific sites. Professionals are essential because of
the complexity of the biological and habitat issues.
(3) Coordination with other sites and studies which share similar
resources or constraints. Progress toward understanding management
issues requires knowledge of what has been learned in other study/
management sites.
For the Ranch on Silver Creek, Presley Homes has taken the
initiative to provide continuity and professional management of site
resources, open space for restoration and mitigation, and conservation
of easement sites. By making this commitment, Presley Homes is
demonstrating a concern for the resources to the public and the
agencies.
iv. mission statement
The Environmental Trust for The Ranch on Silver Creek will actively
provide stewardship of the Trust properties in perpetuity for the
sensitive and unique plant and animal species, and sensitive habitats
of concern including serpentine, wetland, and riparian habitats. The
Trust will function in a scientifically, fiscally, and socially sound
manner.
v. objectives
In order to attain the goal embodied in the Mission Statement, a
number of objectives need to be met. The objectives of the Trust
include:
Site Management
Protect existing natural resources
Maintain, repair, and replace physical property
Maintain fences and signs
Maintain public access in suitable areas
Patrol habitat, report violations to law enforcement
Work with the golf course to assure enforcement of out-of-
bounds areas
Work with City of San Jose, Pacific Gas & Electric, and
other stakeholders with easements or adjacent property to minimize
impacts
Monitor golf course maintenance to minimize impacts
Collect golf balls from protected habitat
Monitor and maintain permanent water quality best
management practices (BMPs)
Maintain appropriate fire buffers
Communicate with other sites managing similar resources
Science and Research
Participate in the Northern California research community
through ongoing communications, writing papers, attending and
participating in conferences, and disseminating knowledge gained from
studies conducted on the site
Plan, facilitate, and conduct scientific studies
Utilize the site for scientific studies
Monitor and document resources and environmental
conditions
Maintain involvement of academic and research communities
Propagate special status species
Encourage California native plant horticulture through
outreach to interested organizations
Administration
Maintain a science and management handbook
Manage finances and staff
Public Education and Relations
Maintain and develop public education and raise local
environmental consciousness [e.g. via an interpretive center and
outreach including web site]
Build a constituency for the site resources including
volunteer involvement
Promote public understanding of the natural history and
history of the site
Sell environmental materials including native plants,
posters, local maps, nature art
Educate community about using non-invasive species
Library and Records
Serve as a repository for a reference library of historic
and contemporary documents (see Attachment C for a Preliminary
Reference Bibliography)
Maintain site and resource documents, records, and data
Provide appropriate computer systems, including a
geographic information system, and equipment for utilizing library
materials including maps, aerial photographs and scientific data
Provide public access to Trust library materials
Mitigation and Compliance
Mitigate for impacts resulting from The Ranch on Silver
Creek project
Ensure compliance with the Ranch on Silver Creek project
city and agency Conditions of Approval, and FEIR and EIR Addendum
mitigation measures
Coordinate mitigation for projects affecting the site
vi. governance
The Environmental Trust will be governed by a seven member Board of
Directors who have the ultimate responsibility for fulfillment of the
Mission of the Trust. They will set policy, prioritize major
objectives, oversee management, hire and fire the Trust Manager, and
provide primary fiscal responsibility. The Board must take care that
directors, officers, and staff avoid conflicts of interest. It is
essential that the Board limit its activities to protect its Non-
Profit, tax-deductible Status. See Attachments D and E, Draft Articles
of Incorporation and Draft Bylaws.
vii. staff, consultants, and volunteers
The site will be managed by a Trust Manager. This individual, who
will likely be associated with a consulting or resource management
firm, will be responsible for overall management, as well as all the
day-to-day aspects of the Trust including:
Implementing the policies of the Board of Trustees
Reporting to the Board
Maintaining a strong scientific and historic knowledge of
the site and its resources