An evaluation of the endangered species act and private landowner assurances. (Special Series Part III--Education in Action).

Editor's Note

The UPDATE presents a three-part series of educational essays from Nancy Mathews' Wildlife Ecology class at the University of Wisconsin. We are presenting a selection of position papers regarding Section 10 of the Endangered Species Act. This educational exercise is an example of how the next generation of conservation biologists is being trained. In particular, the essay set reflects an emphasis on remaining sensitive to the perspectives of multiple stakeholders. Perhaps some novel ideas are embedded in these essays as well as fresh eyes often bring new insights to old controversies.

Wildlife Ecology students were given sample Habitat Conservation Plans and were instructed to assume the identity of the associated landowner, who also happened to be a trained wildlife biologist. The role-playing assignment was then given as follows:

Please write a position paper to be presented at a Senate sub-committee hearing on reauthorization of the Endangered Species Act. Support or refute the intent of the Section 10 administrative policies that attempt to make conservation planning more palatable to private property owners. Give a brief overview of the policies and present the pros and cons of the private landowner assurances. Support your position using what you have learned in class, the Endangered Species Act, and the assigned Habitat Conservation Plan.

Introduction

Good morning. My name is Brian Heywood. I am a private landowner in Humbolt County, California. I am here to represent my opinion on the Endangered Species Act (ESA) and private landowner assurances.

In 1990, I inherited a parcel of forested land. In order to stop the Internal Revenue Service from repossessing my property I was required to pay a substantial inheritance tax. Logically I decided the most prudent way to raise this needed revenue was to develop a small timber harvest plan for part of the newly acquired property. However, upon further review I found that two pairs of Northern spotted owls (Strix occidentalis caurina) are presently residing within the property limits.

Subsequently, I have been trying to receive approval from the U.S. Fish and Wildlife Service (FWS) for an Incidental Take Permit using a Habitat Conservation Plan (HCP). I have a degree in wildlife ecology and understand that the basic purpose of the ESA is endangered species management and natural resource conservation. However, until I was put in the precarious position of a landowner with endangered species on my land, I never really understood the multi-faceted complexities of the ESA. Fundamentally, I have to conclude that the ESA has serious flaws. As a private landowner I feel that my rights have been violated and believe that other options for private landowner assurances must be created. Therefore, I support the reauthorization of the ESA with stronger private landowner assurances.

Present policies

To begin, I feel it is important to discuss the options that are presently available under the ESA. First, Candidate Conservation Agreements (CCAs) allow foresighted managers to protect potentially endangered or threatened species. In this case, the landowner volunteers to enhance or favorably manage the property in order to keep the population of the candidate species above a predetermined baseline level. In creating CCAs two major benefits are possible: the agreements can prevent the need for species listing in the future, and the landowner is assured that if he/she follows through on the management, no further restrictions can be placed upon them. This is certainly the most proactive approach to land management under the ESA. However, this provision requires extremely foresighted management.

As an owner of recently acquired land who needs to generate revenue immediately, this option is not available to me. Furthermore, it is difficult for landowners to determine baseline species populations and incur the costs of additional monitoring. At this time, it seems that the CCA does not allow me to receive any economic benefits from my land, and therefore I feel this plan limits the freedom I have as a new private landowner.

Second, an Enhancement of Survival Permit (Section 10(a)(1)(A)) with a Safe Harbors agreement is another option available to private landowners. These agreements are entered into with a specific time period in mind. During this pre-established time period the landowner improves the habitat and hopes that the population of the target species increase(s). Then, after the time period is up the landowner is free to develop the land as long as the population stays above the agreed upon baseline. The main idea is that if enhancements are made before development, then the species will propagate and the baseline population will be easy to maintain. Landowners are assured that they will not be subject to additional restrictions if they continue their conservation efforts.

In theory, the Safe Harbors agreements seem reasonable. Similar to CCAs, this provision is proactive and requires long time periods. Thus, this provision is a great option for established landowners. However, incurring the costs as a new landowner is extremely difficult.

Third, a Habitat Conservation Plans (HCP) with a No Surprises Clause provides perhaps the most development freedom for landowners. This agreement calls for a comprehensive written plan that properly minimizes and mitigates the incidental take of endangered species. Landowners must create a development plan that protects listed species "to the maximum extent possible." The No Surprises Clause assures private landowners that they will not be responsible for additional economic restrictions as long as they follow the approved HCP. In addition, if "unforeseen circumstances" arise, no further commitment in the form of land or compensation will be required by the landowner. HCPs do not call for enhancement of population levels but instead call for no net loss of the species during the time period of the plan. In order to achieve no net loss the landowner offers proper mitigation in the form of money and other land conservation. The landowner must also provide assurances that the proposed action is the least invasive option. HCPs do not necessarily provide habitat enhancement, but, rather, the plans allow the landowner greater freedom to develop the land. Accordingly, HCPs seem contrary to the intended purpose of the ESA. Perhaps no net loss is achieved for the species but this is certainly not proactive conservation management.

Policy shortcomings

In Northern California, I do not have adequate options to protect my rights as a private landowner while also protecting endangered species. Simply put, I have no choice but to develop my land in order to maintain ownership. While I understand the importance of long-term species management, I am distraught that the costs associated with CCAs and Safe Harbors agreements limit my involvement. The HCP is my only option. I have a sentimental attachment to the land and the species that reside on it. However, unless I generate some revenue through development, I will certainly lose this land. I believe that I am a proper steward of my land, but I have become immersed in financial obligations and diminishing returns with this property. The ESA needs to have more palatable compensation plans for landowners like myself.

I feel that the ESA in its current form overlooks two serious issues when it comes to private ownership provisions. First, any land that has an endangered species on it usually becomes devalued. None of the plans under the current ESA provide any assurance that land containing an endangered species will retain its value. If land devaluation continues, private landowners in this country will continue to feel that the ESA is an infringement on private property rights. Without question, land ownership always has been risky; risk is an inherent characteristic of a market structure. However, the magnitude of land devaluation that results from policies associated with the ESA disproportionate. The ESA must be reauthorized with provisions that financially protect private landowners. Landowners must feel confident that their land can retain some vestige of its original value even after endangered species are discovered.

Second, private landowners are expected to bear the burden (the cost) to protect what is a public good. In effect, landowners are paying to protect something that belongs not only to them but to every citizen in this country. If the ESA truly intends to promote the viability of wildlife, then the general public should be partially responsible for the associated costs of species protection. Last year the budget for HCPs and land acquisition for the FWS was $6 million. In contrast, a $1.3 billion tax cut is now being debated in Congress. Perhaps some of the money from the proposed tax cut could be used to compensate private landowners that are protecting endangered species. I understand that this suggestion is idealistic; however, I firmly believe that enough money is available in the national budget to properly reimburse these private landowners. If the government compensated me, then I would not have to carry out the timber harvest plan. As a result, the spotted owl population potentially could increase rather than simply remain at the no-net-loss level.

Closing comments

As a trained biologist I understand the need for species conservation. In fact, the mitigation and minimization efforts in my HCP are sound and have species conservation in mind. I do not feel that my HCP will negatively effect the survival of the species as a whole due to the strong metapopulations in the region. In addition, the location where I plan to harvest trees will not harm the breeding pair of spotted owls. However, without my background in ecology I feel that my HCP could have been much more intrusive to the species. It worries me that many uninformed landowners might proceed with more intrusive plans. I am not attempting to profit in any major way from this project. In fact, over 68% of the revenues from this project will go towards paying for incurred costs. It worries me that large lumber companies surrounding my land are more profit minded. Certainly, the HCPs designed by these companies provide mitigation and minimization in the short-term. However, if every HCP allows for a taking of species, then where do we draw the line when considering long-term effects?

Private property is likely the most valuable asset that citizens possess. However, natural resources are the combined asset of the country. If we want to protect our assets we must be willing to provide financial compensation for landowners affected by the ESA. Most landowners support and love these endangered species just as much as environmentally conscious people. The problem is, despite the current landowner assurances, the structure of the ESA forces us to make a choice between our fiscal health and endangered species. The ESA needs to include policies that acknowledge the relative willingness of landowners to protect their natural resources. Somebody who owns a parcel of land and intends to protect a rare species should be compensated differently than a developer that has no intention to protect species. The ESA needs to make public funds available to landowners that engage in conservation activities. This will create an awareness of the "public" ownership of wildlife and mitigate against the devaluation of private lands. Only through comprehensive redesign of the ESA are we going to achieve true endangered species conservation.

Thank you for your time. Have a good afternoon.

Brian Heywood
University of Wiscosin, Department of Wildlife Ecology, 215 Russell
Laboratory, 1630 Linden Drive, Madison WI 53706

Nancy E. Mathews
University of Wiscosin, Department of Wildlife Ecology, 215 Russell
Laboratory, 1630 Linden Drive, Madison WI 53706
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