Natural communities conservation planning: California's new ecosystem approach to biodiversity.

There is an emerging consensus that current legal approaches to the preservation of species are insufficient to achieve their objectives. The most drastic of these approaches, embodied in the Endangered Species Act of 1973 (ESA),(1) has bogged down in political and economic controversy, bureaucratic inertia, and what has been called "individual species gridlock." These difficulties arise in part from the fact that new threats have supplanted the problems the ESA was designed to address and in part from the realization that our understanding of the value of biological diversity has matured. At the same time, economic realities have forced many landowners to re-examine their important, but often expensive, participation in the preservation of biodiversity.

As long as the ESA was concerned with the disappearance of exotic animals due to depredation (which in fact was not very long), it was a workable approach. The ESA regulatory procedure focuses on the listing of individual species as threatened or endangered.(2) This procedure ignores the complex ecosystems in which species exist. As a result, the ESA approach in most cases cannot reverse the decline of listed species despite strict regulation of activities involving such species. Few species have ever been removed from the threatened or endangered lists.

The listing of individual species and the failure to take notice of an entire ecosystem results in endangered species crisis management. By statutory definition, an "endangered species" is one on its ecological deathbed.(3) Such species need critical care; many probably cannot be saved. Many observers find triage, or the administration of emergency measures in a crisis, inadequate and offensive in this context,(4) for it results in the devotion of enormous resources to hopeless cases.

The ESA approach as it has developed forces a false choice between economic activity and the preservation of biodiversity. Participation by private landowners, perhaps the most critical actors on the stage of conservation, is discouraged by this false choice. It is also discouraged by the apparent unfairness of the ESA regulatory approach, which is perceived as placing the entire burden of conservation and recovery on the landowner or developer with the most recent project.

This article describes the basics of the ESA approach as the background to the development of California's Natural Communities Conservation Planning (NCCP) program. NCCP is the first ecosystem planning program to involve all levels of government--from Capitol Hill to City Hall--and to encourage private landowner participation through incentives.

I. ESA STRATEGIES

A. The Federal Endangered Species Act

The regulatory linchpins in the federal ESA are sections 7 and 9 of the Act.(5) Section 7 requires federal agencies to consult with the Secretary of the Interior(6) to ensure that agency actions are not likely to jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of critical habitat of such species.(7) Section 7 acquired its regulatory teeth in 1978, when the U.S. Supreme Court decided that section 7 required a halt to the construction of the Tellico dam to preserve the snail darter, a rare fish jeopardized by the project.(8) Section 7 also covers private activities to the extent that they require the authorization or other involvement of a federal agency.(9)

Section 9 of the federal ESA prohibits, among other things, the "taking" of endangered species.(10) To "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in such conduct."(11) Section 9 applies to any person, public or private.(12) The regulations promulgated by the U.S. Fish and Wildlife Service (USFWS) further define "harm" as "an act which actually kills or injures wildlife [including) significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(13) In Palila v. Hawaii Dep't of Land and Natural Resources, the court held that showing "harm" does not require proof of death of individual members of a species, but only evidence of habitat destruction.(14) Section 9 and the regulations promulgated under it are, therefore, the blunt end of the club for those who seek to modify critical habitat.

Sections 7 and 9 represent the least sophisticated aspects of preserving biodiversity. Fortunately, however, they are not the last word in the federal ESA. Section 10(a) of the Act allows the Secretary of the Interior to permit a taking otherwise prohibited by Section 9 "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."(15) To receive such an "incidental take permit," an applicant must submit a plan specifying the likely environmental impacts of the taking, steps the applicant will take to minimize and mitigate the impacts (and the funding available to implement these steps), alternatives to the taking and reasons why they are not being used, and any other measures the Secretary may require as necessary and appropriate to the plan.(16) Such plans are known as habitat conservation plans (HCPs). To secure approval of an HCP, the Secretary must solicit public comment and then find that: 1) the taking will be incidental; 2) the applicant will, to the maximum extent practicable, mitigate and minimize the impacts of the taking; 3) the applicant will ensure sufficient funding for the plan; and 4) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.(17)

Congress added the HCP process to the ESA in 1982.(18) Shortly thereafter, the process was judicially blessed in Friends of Endangered Species v. Jantzen.(19) In that case, challenges to an HCP based on the ESA and the National Environmental Policy Act(20) were rejected.(21)

Section 10(a) and the HCP process bring a degree of certainty to the economic aspects of habitat preservation,(22) as well as better cooperation between landowners and wildlife agencies. Most significantly, an HCP allows conservation to be accomplished on a regional basis. Clearly, these are positive aspects of the HCP idea.

B. The California Endangered Species Act

The California Endangered Species Act (CESA)(23) prescribes an analog to the federal ESA section 10(a) process.(24) Understanding that analog, however, requires an explanation of some of the differences between the CESA and the ESA. The significant enforcement provision of the CESA is found in section 2080 of the California Fish and Game Code.(25) Like ESA section 9, section 2080 prohibits, among other things, the taking of threatened or endangered species. Unlike the ESA, however, the CESA has no definition of "taking" set out specifically for the protection of threatened and endangered species. Instead, it appears that CESA must rely on the general definition of "taking" in the California Fish and Game Code, enacted long before preservation of species became a popular concern.(26) While similar to the ESA definition, it is significant that this definition does not include the terms "harm" or "harass." Furthermore CESA has no regulations to give further guidance on the meaning of the statute. Nevertheless, in Dep't of Fish and Game v. Anderson-Cottonwood Irrigation District,(27) the California Court of Appeals rejected the argument that CESA prohibited only the killing of animals in hunting or fishing activities.(28) The court held that the killing of a protected animal incidental to an otherwise lawful activity is also prohibited by section 2080.(29)

To relieve some of the harsh effects of section 2080, the California Fish and Game Code contains a scheme analogous to the federal incidental takings provision. Section 2081 of the California Fish and Game Code provides:

Through permits or memorandums of understanding, the [Department

of Fish and Game] may authorize individuals, public agencies,

universities, zoological gardens, and scientific or educational institutions

to import, export, take, or possess any endangered species

[or] threatened species ... for scientific, educational, or management

purposes.(30)

Since 1991, the California Department of Fish and Game has used section 2081 to accomplish the purposes served by the HCP provisions of the ESA. An individual or public agency desiring to engage in activity involving the habitat of a state-listed threatened or endangered species, where the death of animals may result, may enter into a memorandum of understanding (MOU) with the Department to manage the affected species and its habitat.(31) Generally, an MOU requires the applicant to mitigate and minimize the project's potential effects on the species by acquiring substitute habitat ("habitat management lands") and performing other mitigation measures during and after the project.(32) Further, the proponent typically must provide funds as a permanent endowment for conservation, restoration, and enhancement of the habitat management lands. The proponent must also follow a strict set of conditions developed by the Department's biologists to minimize the likelihood of the taking of an animal. A taking incidental to the project activities is not unlawful as long as the proponent abides by the conditions of the MOU.(33) Notably, public comment is apparently not required on the so-called "CESA MOU." However, most projects that may affect threatened and endangered species are subject to the notice and public comment provisions of the California Environmental Quality Act (CEQA)(34)

The Department has no statutory standards to follow in determining when to enter into a CESA MOU. In practice, however, the Department does not enter into such agreements unless it finds that the conditions of the MOU will offset project impacts and that the project will not jeopardize the continued existence of the species.

While there have been relatively few HCPs approved under section 10(a) of the ESA, California has entered into numerous CESA MOUs (sometimes also called 2081 agreements).(35) The state has thus been able to further the goals of conserving, protecting, restoring, and enhancing populations of endangered species without shutting down economic development.

Like Section 10(a) and the HCP process, the 2081 process allows some certainty about the costs of habitat preservation and results in a planned and bargained, though biologically based, exchange that serves critters as well as commerce. Nonetheless, these devices do not completely solve the problems of "endangered species crisis management." Although there are some multispecies programs underway, the existing processes still tend to focus on one species or one project at a time. The most recent developer still tends to bear the greatest burden of mitigation. Additionally, there is not enough certainty as to yet-to-be-listed species and potential future mitigation requirements. Finally, the existing processes do not acknowledge the role of actors critical to the entire process: local government land-use planners.

II. CALIFORNIA'S NATURAL COMMUNITIES CONSERVATION PLANNING

Environmentalists and land managers have found that the failure to plan on an ecosystem basis has produced great uncertainty in the existing approaches to endangered species conservation. After all, nature itself operates as an ecosystem. Public policy on biodiversity should follow natural contours. Although this consensus has been emerging for some time now, California has led the way in putting into practice an ecosystem approach to preserving biodiversity without stifling economic development. In 1991, the California Legislature enacted Governor Pete Wilson's innovative Natural Community Conservation Planning Act (NCCP ACT),(36) which encourages unprecedented cooperation among land managers, environmentalists, local governments, and state and federal agencies.

Under the NCCP Act, the Department of Fish and Game may enter into agreements with private citizens to prepare natural community conservation plans.(37) Such plans, according to the NCCP Act, identify and provide for "regional or area-wide protection and perpetuation of natural wildlife diversity, while allowing compatible development and growth."(38) The purpose is to secure and protect habitat before it declines, taking with it the species that depend upon the habitat for their existence.

The concept underlying the NCCP Act is that a collaborative process involving public agencies, land managers, and the public will best achieve the goals of long-term species protection and economic growth. The plans under the program are designed to provide comprehensive management and conservation of multiple wildlife species, including, but not limited to, those species listed under the CESA.(39) Unlike the ESA and the CESA, this approach brings a preventive medicine philosophy to preservation of biodiversity and shifts away from the trauma care species management of the past.

The NCCP program is being implemented initially in the coastal sage scrub (CSS) ecosystem in southern California.(40) This ecosystem is home to about fourteen animal and plant species on either state or federal lists of endangered, threatened or rare species, including the Coastal California Gnatcatcher.(41) Other species of concern in this ecosystem include the orange-throated whiptail, the cactus wren, and the San Diego homed lizard. Additionally, estimates of the number of other species associated with the CSS ecosystem considered "sensitive" range as high as thirty animal species and sixty plant species. Among these are at least thirty candidates for federal listing. More than sixty percent of the historic CSS habitat has been lost.(42)

The CSS program area covers about 6,000 square miles in Los Angeles, San Bernardino, Orange, Riverside, and San Diego counties. The area has some of the highest land values in the nation, as well as some of the fastest rates of population growth. There axe also a number of major military installations and other federal facilities in the planning area that are cooperating with the NCCP program.(43)

To initiate the CSS pilot program, the California Department of Fish and Game and the USFWS entered into a MOU in December, 1991, under which the agencies pledged to share information and cooperate in the program.(44) The USFWS has also agreed to support the program financially.(45)

The CSS pilot program began an eighteen-month planning phase in May, 1992. The CSS program area will be divided into planning subregions, designated by local agencies. This will allow the flexibility to reflect local conditions while operating a program of basic regional conservation. Local governments will enter into planning agreements with the Department of Fish and Game and the USFWS to coordinate subregional decision making. The planning agreements will commit the local agencies to cooperate in scientific surveys of habitat lands and in the development of natural community conservation plans. Land-use regulatory agencies also will agree to increase discretionary review of activities affecting CSS habitat. The California Environmental Quality Act (CEQA)(46) will be a tool to find reasonable alternatives to destruction of CSS habitat and to require mitigation for habitat destruction.

The natural community conservation plans will be designed to satisfy the requirements of the ESA, CESA, the National Environmental Policy Act, and CEQA. After public comment and review by the Department of Fish and Game and the USFWS, the parties will sign an implementing agreement that represents state and federal approval of the plan. This approval will allow issuance of a section 10(a) ESA permit or the signing of a CESA MOU as appropriate should particular species become listed.

Landowners and local governments may enroll in the program through voluntary agreements with the Department of Fish and Game. The agreements cover land that the owners commit to protect during the NCCP planning period. At this writing, more than forty private landowners and about thirty local jurisdictions, including Orange County, San Diego County, and the City of San Diego, have enrolled, covering about 210,000 acres of the nearly 394,000 acres of CSS habitat in the planning area.(47) In all, about a million acres of land have been enrolled.(48)

These agreements with public and private landowners commit the landowners to protect enrolled habitat lands, to participate in and cooperate with scientific surveys of their land, and to cooperate in the development of a natural community conservation plan for their land and the region.(49)

Essential to the CSS pilot program is a Scientific Review Panel (SRP) established by the Department of Fish and Game. The SRP consists of five distinguished biologists, chaired by Dr. Dennis Murphy of Stanford University. The SRP has developed conservation principles for CSS habitat to be used in the subregional planning.

The NCCP process is an anticipatory, multi-species approach to biodiversity preservation. It addresses the inefficiencies in the traditional process while permitting a degree of certainty for land managers. The NCCP program does not supplant the ESA or the CESA. Indeed, the NCCP will succeed because of both the existence of the ESA and CESA. The possibility of regulatory intervention to protect listed species encourages landowners and local governments to commit to the voluntary approach of the NCCP.

An example of the relationship of the NCCP program to the ESA is provided by the California gnatcatcher, a small insectivorous songbird whose historical range extends throughout southern California and northwestern Baja California.(50) The USFWS had proposed the gnatcatcher for federal listing as an endangered species before the NCCP Act was passed.(51) After the Act was passed, the USFWS entered into an MOU with the Department of Fish and Game pledging cooperation in the NCCP program.(52) In the meantime, the ESA listing process went forward. On March 30, 1993, the USFWS announced the listing of the gnatcatcher as a threatened species (instead of the proposed "endangered").(53) Such a listing ordinarily triggers the prohibitions of section 9 of the ESA. Affected parties would be able to apply for incidental taking permits under section 10(a) of the ESA by developing a habitat conservation plan.(54) Of course, in the traditional scheme, the HCPs would be developed and 10(a) permits issued on project-by-project basis.

Recognizing California's efforts under the NCCP program, however, the USFWS has promulgated a special rule relating to the California gnatcatcher.(55) The special rule permits taking of the gnatcatcher associated with activities under an approved natural community conservation plan. While such plans are being developed, the proposed special rule permits taking of the gnatcatcher resulting from activities conducted in accordance with conservation guidelines developed by the SRP.(56) Such taking is permitted only in an area enrolled in the NCCP program, and provided that loss does not exceed restrictions established by the SRP.

The special rule for the gnatcatcher seeks to put preservation of the bird largely in the hands of local officials, with state guidance and federal cooperation. At the same time, the special rule gives landowners and developers some assurance that the plans they have created with local officials will not be snagged on the horns of the ESA. Thus, the special rule is an expression of confidence that the NCCP program will result in the establishment of long-term, ecosystem-wide plans sufficient to preserve the biodiversity of the CSS community.

III. CONCLUSION

The NCCP program is the most comprehensive effort yet to preserve biodiversity on a broad scale that avoids project-by-project, species-by-species inefficiencies. The CSS pilot project will demonstrate the feasibility of long-term, ecosystem-wide planning that involves various levels of government, developers, and conservationists.

In California, other ecosystems or "bioregions" may benefit in the future from planning under the NCCP. Not all of these ecosystems are completely terrestrial: some of California's most difficult problems involve water-use issues complicated by the need to preserve endangered fish species and the desire for development near riparian corridors. The NCCP may provide a framework for planning in these situations.

There is an emerging consensus among environmentalists, landowners, and government at all levels that the ecosystem approach exemplified by the NCCP program is an overdue refinement in conservation.(57) California's experience no doubt will encourage emulation elsewhere. States and local governments, however, need federal cooperation to go further down this road. An adequate commitment of resources to broad, cooperative planning and a willingness to step away from the past ultimately will reduce the number of ecological train wrecks forced by the false dichotomy between biodiversity preservation and economic development. (1.) 16 U.S.C. [subsections] 1531-44 (1988). (2.) Id. (3.) 16 U.S.C. [sections] 1532(6) ("|Endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range." (4.) See supra this volume, John C. Kunich, The Fallacy of Deathbed Conservation Under the Endangered Species Act, 24 Envtl. L. at 501 (1994). (5.) 16 U.S.C. [subsections] 1536(a)(2), 1538(a)(1). See James C. Kilbourne, 7he Endangered Species Act Under a Microscope, 21 Envtl. L. 499 (1991). (6.) Jurisdiction is also shared with the Secretary of Commerce. 16 U.S.C. [sections] 1532(15). (7.) 16 U.S.C. [sections] 1536(a)(2). (8.) Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978). (9.) 16 U.S.C. [sections] 1536(a)(2). See also Sweet Home Chapter of Communities for a Greater Oregon v. Babbit, 1994 U.S. App. LEXIS 4341 at *11 (D.C. Cir. March 11, 1994), Conservation Law Foundation of New England, Inc. v. Andrus, 623 F.2d 712 (1st Cir. 1979), and Riverside Irr. Dist. v. Andrews, 785 F.2d 508 (10th Cir. 1985). (10.) 16 U.S.C. [sections] 1538(a) (1988). (11.) 16 U.S.C. [sections] 1532(19) (1988). (12.) 16 U.S.C. [sections] 1538(a) (1988). (13.) 50 C.F.R. [sections] 27.3 (1992). (14.) 649 F. Supp. 1070 (D. Hawaii. 1986), aff'd without opinion, 852 F.2d 1106 (9th Cir. 1988). But see Sweet Home Chapter of Communites for a Greater Oregon v. Babbitt, 17 F.3d 1463 (D.C. Cir. 1994), petition for reh'g en banc docketed, No. 92-5255 (D.C. Cir. Apr. 25, 1994) (holding that USFWS regulations defining "harm" exceeds the legislative intent in the statute). (15.) 16 U.S.C. [sections] 1539(a)(1)(B). (16.) 16 U.S.C. [sections] 1539(a)(2)(A). (17.) 16 U.S.C. [sections] 1539(a)(2)(B). (18.) Pub. L No. 97-304 [sections] 6(1), 96 Stat. 1422 (1982). (19.) 596 F. Supp. 518 (N.D. Cal. 1984), aff'd on reh'g, 589 F. Supp. 113 (N.D. Cal. 1984), aff'd., 760 F.2d 976 (9th Cir. 1985). (20.) 42 U.S.C. [subsections] 4231-4370c (1988). (21.) Id. (plaintiff, Friends of Endangered Species, sought injunction to stay issuance of permit by U.S. Fish and Wildlife Service to cities including San Francisco, allowing incidental taking of the Mission Blue Butterfly in the development of the San Bruno Mountain. Three other endangered species, the Calippe Silverspot Butterfly, the San Bruno Elfin butterfly and the San Francisco Garter Snake, also had some habitat on the mountain). See Lindell Marsh and Robert D. Thornton, San Bruno Mountain Habitat Conservation Plan, in Managing Land use Conflicts: Case Studies in Special Area Management 81 (David Brower and Daniel Carol, eds., 1987). (22.) See Robert D. Thornton, Searching for Consensus and Predictability. Habitat Conservation Planning Under the Endangered Species Act of 1973, 21 Envtl. L. 605 (1991). (23.) Cal Fish & Game Code [subsections] 2050-98 (1994). (24.) Id. (25.) Id. [sections] 2080. (26.) Id. [sections] 86 ("Take' means hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill") . (27.) 11 Cal. Rptr.2d 222 (Ct. App. 1992) (California Department of Fish and Game successfully sought reversal of denial of injunction to prevent irrigation district from operating pump division facility on Sacramento River in manner that would result in killing of endangered species, the winter-run chinook salmon). (28.) Id. at 1563. (29.) Id. (30.) Cal Fish & Game Code [sections] 2081 (1994). (31.) Id. Although it is not clear that the Legislature intended the term "management" in sction 2081 to include management of habitat or incidental take, the Department of Fish and Game has construed the statute in this manner. The Department's interpretation is the subject of a current court challenge. See San Bernardino Valley Audubon Society v. City of Moreno valley, No. 218310 (Calif. Superior Ct., Riverside City). (32.) California Endangered Species Act Memorandum of Understanding By and Between Taft Community Development Agency and California Department of Fish and Game Regarding Taft K-Mart Shopping Center (August 16, 1993). (33.) Id. This is based on the Department's interpretation of section 2081. See supra note 31. (34.) Cal. Pub. Res Code [subsections] 21,000-21,177 (1994). Sections 21,083.5 and 21105 in particular contain citizens notice and comment clauses. (35.) There are more than 75 CESA MOUs with public and private entities, including Chevron USA, Inc., Pacific Gas & Electric Co., and even the federal government. (36.) Cal. Fish & Game Code [subsections] 2800-40 (1994). (37.) Id. [sections] 2810. (38.) Id. [sections] 2805(a). (39.) Conservation supra note 39. (40.) Memorandum of Understanding Between the California Department of Fish and Game and the U.S. Fish and Wildlife Service Regarding Coastal Sage Scrub Natural Community Conservation Planning in Southern California, December 4, 1991 [hereinafter Memorandum). See also Southern California Coastal Sage Scrub Natural Community Conservation Planning Process Guidelines 1, California Department of Fish and Game and California Resources Agency, November 1993 [hereinafter Guidelines]. (41.) Id. (42.) NCCP News Highlights 1, Natural Community Conservation Planning Process Coastal Sage Scrub Newsletter, California Resources Agency, April 1992, An NCCP Special Report, The Coastal Sage Scrub Community Conservation Planning Region 1, Natural Community Conservation Planning Process Coastal Sage Scrub Newsletter, California Resources Agency, March 1992, and Ecosystem Conservation, The Natural Communities Conservation Planning Program, California Department of Fish and Game, March 1993 [hereinafter Conservation]. (43.) NCCP News Highlights 1, Natural Community Conservation Planning Process Coastal Sage Scrub Newsletter, California Resources Agency, April 1992, 24, An NCCP Special Report: The Coastal Sage Scrub Community Conservation Planning Region 1, Natural Community Conservation Planning Process Coastal Sage Scrub Newsletter, California Resources Agency, March 1992, and Ecosystem Conservation, The Natural Communities Conservation Planning Program California Department of Fish and Game, March 1993. (44.) Memorandum, supra note 40. (45.) 58 Fed. Reg. 16,742 (1993) (to be codified at 50 CFR Part 17) (proposed March 30, 1993). (46.) California Pub. Resources Code, [sections] 2100 et seq. (47.) Conservation, supra note 39. (48.) Id. (49.) Guidelines, supra note 39, at i-iii. (50.) 58 Fed. Reg. 16,742 (1993) (to be codified at 50 C.F.R. Part 17) (March 30, 1993) (determination of threatened status for Coastal California Gnatcatcher). (51.) 56 Fed. Reg. 47,053-01 (1991) (to be codified at 50 C.F.R. Part 17). (52.) Memorandum, supra note 40. (53.) 58 Fed. Reg. 16,742 (1993) (to be codified at 50 C.F.R. Part 17) (proposed March 30, 1993) (determination of threatened status for Coastal California Gnatcatcher). (54.) 16 U.S.C. [sections] 1539. (55.) 58 Fed. Reg. 16,758 (1993). (56.) Id. (57.) See Nancy Kubasek, The Endangered Species Act: Time for a New Approach?, 24 Envtl. L. at 329(1994). See also H.R. 2043 (introduced May 6, 1993) and S. 921 (introduced May 6, 1993).

Craig Manson (*) General Counsel of the California Department of Fish and Game; adjunct professor of law, University of the Pacific, McGeorge School of Law; J.D. with great distinction, University of the Pacific, McGeorge School of Law, 1981, Order of the Coif; B.S., U.S. Air Force Academy, 1976. Prior to appointment to his present post, the author practiced administrative, regulatory, and environmental law with a major Sacramento law firm. From 1985 to 1989, he was associate professor of law at the United States Air Force Academy, Colorado Springs, Colorado, where his academic endeavors included international environmental legal issues. The opinions expressed in this article are those of the author and do not represent the expression of policy by the California Resources Agency, the California Department of Fish and Game, or any other government office.