Reshaping habitat conservation plans for species recovery: an introduction of a series of articles on habitat conservation plans.

I. INTRODUCTION

One of the hottest debates among Endangered Species Act (ESA)(1) policy experts is about habitat conservation plans (HCPs), the legal device by which the federal government authorizes habitat disturbing activities by private and other nonfederal landowners in return for conservation commitments.(2) The Clinton Administration has aggressively promoted HCPs as a win-win method for implementing the ESA on nonfederal lands. As a result of the Administration's efforts, over 200 plans covering nine million acres of land have been approved in the past four years.(3) Prior to the Administration's arrival in Washington, a mere fourteen plans had been developed and approved(4) Many conservationists and independent scientists have expressed serious concerns about the Administration's HCP initiatives, arguing that important habitat is being destroyed pursuant to HCPs without adequate consideration of species' recovery needs.(5)

In an effort to focus attention on HCPs and the overall problem of declining wildlife on nonfederal lands, the National Wildlife Federation (NWF) sponsored two HCP-related events. In November 1996, it held an activists' workshop in Oregon where 150 conservation professionals and volunteers from ten states shared information and began formulating HCP strategies. In May 1997, NWF convened a national HCP conference that brought together roughly 280 activists, policymakers, representatives of regulated interests, and leading academics in Washington, D.C. for two days of discussion and debate. This introduction and the four articles that immediately follow were prepared following these exciting events and reflect some of the thinking that emerged. In a parallel effort, several speakers at the national HCP conference contributed articles to Endangered Species UPDATE, a policy journal from the University of Michigan, for a special HCP edition to be released in September 1997.(6)

Although the articles in this symposium shed light on different aspects of the HCP debate, the unifying theme is that HCPs are likely to have enormous implications for the future of biological diversity in the United States. HCPs and related plans are the current Administration's primary strategy for protecting imperiled species on nonfederal lands, and these lands provide important habitat for virtually all of the nation's imperiled species.(7) To date, the environmental community has generally not been involved in shaping HCP policy. If we are to conserve this nation's rich natural heritage, we will need to focus on influencing the next wave of HCPs--the Administration estimates that another 200 will be developed in the next few years--and on ensuring that the plans are consistent with species recovery. The remainder of this introduction makes recommendations on how the goals of the ESA might best be achieved.

II. A PROPOSED AGENDA FOR REORIENTING HABITAT CONSERVATION PLANS TOWARD RECOVERY

Recently developed habitat conservation plans (HCPs) have been roundly criticized by conservationists and independent scientists for allowing substantial habitat destruction without appropriate consideration of species' long-term survival needs.(8) In deciding what to do about HCPs, one must first decide whether they are an appropriate conceptual device for conserving imperiled species on nonfederal lands. If HCPs are an appropriate device, then the HCP debate turns not on whether to develop HCPs, but on how HCPs should be improved.

A. The Need to Improve Rather Than to Abandon HCPs

Some in the environmental movement have castigated the very concept of the HCP as an unwarranted concession to developers and resource extraction interests, a concession that they claim is by definition harmful to imperiled species.(9) However, this approach ignores the fact that HCPs potentially can bring about conservation gains that could never be achieved by sole reliance up,on the prohibitions of the Endangered Species Act (ESA) for nonfederal lands.(10) For example, enforcement of the take prohibition of the ESA by the United States Fish and Wildlife Service (USFWS), the National Marines Fisheries Service (NMFS) (collectively, the Services), and citizens has always been spotty, probably due to the cost and difficulty of proving a taking and a lack of political will.(11) Moreover, even if this and other regulatory prohibitions were enforced more consistently, it would not elicit affirmative conservation measures such as the prescribed burning and removal of invasive species which is often essential for species recovery. Likewise, the enforcement of the section 9 prohibition age takings would do little for plants, which are not regulated by section 9, and would do virtually nothing for unlisted species, which are not covered by any of the regulatory prohibitions of the ESA.(12) HCPs provide an important opportunity to ensure that plants and unlisted species are protected, degraded habitats are restored, fragmented habitats are reconnected, invasive species are removed, and numerous other essential conservation measures are undertaken.

Weak and inadequate HCPs, of course, will not likely fill the gaps in protection left by the ESA. However, with appropriate policy guidance, the Services could now begin to design HCPs that both support species recovery and allow some economic activities in or around the habitats of imperiled species.(13)

B. The Need to Define and Utilize the Regulatory Prohibitions of the Endangered Species Act

In evaluating the recent flurry of HCP activity across the country, it is noteworthy how the number and quality of HCPs in any region bears little if any relation to the seriousness of endangerment of wildlife in that region. For example, a recent study of the geographic distribution of threatened and endangered species in the United States shows that there a relatively small handful of "hot spots" where imperiled species are heavily concentrated.(14) The locations of these hot spots generally do not coincide with the locations of HCP activity or any other signs of significant ESA implementation efforts. Although there are many possible explanations for this lack of significant ESA implementation in such hot spots, the failure to develop HCPs in these areas suggests that the Administration has no method of generating HCPs in response to the pressing needs of a specific species.

To generate HCPs which address the needs of imperiled wildlife, the Administration must place greater emphasis on defining the regulatory obligations of landowners, educating landowners about their obligations. and, if necessary, enforcing these obligations. Once the habitat needs of species are defined as specifically as possible and landowners with such habitats are notified about their obligations not to disturb such habitats without a permit, a dialogue about what kind of HCP would be appropriate can begin. Without such guidance and a credible threat of enforcement, landowners have no incentive to engage in meaningful discussions about HCPs.

Defining and utilizing the regulatory prohibitions of the ESA will be essential to achieve meaningful HCP negotiations between the regulators and the regulated. The Administration's current practice is to characterize HCPs as purely voluntary,(15) thus suggesting that landowners will suffer no repercussions for refusing to agree to appropriate safeguards for species. This gives regulated interests a powerful upper hand in negotiations and leads to HCPs that "give away the store" to landowners and create unacceptable risks for species.

C. The Need to Clarify the Goal of HCPs

By definition, an HCP authorizes habitat destruction, and thus an HCP poses potentially significant risks of harm to species both listed and unlisted. Section 10 requires the Administration to avoid this harm when it approves HCPs by, for example, ensuring that adequate minimization and mitigation strategies are developed and ensuring that the habitat destruction will not "appreciably reduce" the likelihood of survival and recovery.(16) Unfortunately, the Administration's HCP Handbook undercuts this requirement by stating that HCPs need not be consistent with species recovery or even benefit the species.(17) Such statements leave open the door for HCPs that worsen the condition of imperiled species and undermine recovery.

HCPs are rapidly becoming the Administration's primary strategy for addressing the needs of threatened and endangered species on nonfederal lands--already they cover nine million acres of habitat and much more habitat will be affected by the many HCPs under development.(18) By implicitly authorizing HCPs that could undermine recovery, the Services violate their ESA duty to promote recovery and conservation,(19) and contravene the very purpose of habitat "conservation" plans, which is to support the Service's efforts to achieve recovery.(20) A simple statement clarifying that HCPs must be consistent with recovery would vastly increase public support for HCPs and increase the likelihood that HCPs will meet the needs of both landowners and wildlife.

D. The Need to Add Legal Safeguards to Ensure that HCPs Do Not Undermine Recovery

Although a statement clarifying that HCPs must be consistent with recovery is important, legal safeguards are essential to ensure that HCPs contain appropriate management prescriptions and enforcement mechanisms. Unfortunately, section 10 of the ESA is far too vague to provide these safeguards.

As this introduction was being finalized, the Clinton Administration had not yet issued any regulations interpreting section 10(a). Over the course of its first term, it issued a series of policy guidance announcements and related public pronouncements about the emerging HCP program, culminating in the November 1996 issuance of a detailed HCP Handbook.(21) All of these policy statements were designed to make the ESA more landowner-friendly--a laudable goal, but not always consistent with providing needed safeguards for species. In the spring of 1997, in response to litigation concerning its failure to seek public comment on its No Surprises HCP Policy, the Administration issued a proposed rulemaking on the No Surprises Policy(22) and two other HCP-related initiatives: the Candidate Conservation Agreement Policy and the Safe Harbor Agreement Policy.(23)

The cornerstone of the Administration's overall HCP effort is its No Surprises Policy, in which the Administration gives a landowner assurances that an HCP will not be modified without the landowner's consent if the landowner is in compliance with the HCP's terms, regardless of whether the HCP fails and a species covered by the HCP slides toward extinction.(24) The Administration justifies this policy on the ground that no landowner would be wiring to engage in a lengthy and difficult planning exercise and undertake the substantial conservation commitments required in an HCP without reliable assurances that the HCP will not be reopened at additional expense to the landowner.(25)

Up to a point, the Administration's argument makes sense. Landowners need regulatory assurances before making substantial investments in the HCP process and HCP conservation measures--any potential that the terms of the deal would change soon after its completion would not make the deal worth pursuing. The Administration is correct in arguing that a bargain needs to be struck so that landowners will step forward and undertake the affirmative conservation measures that so many species require. Unfortunately, however, the Administration's HCP policies only deliver half the bargain. While generously giving landowners rock-solid assurances about the exact nature of their future ESA obligations for decades to come--assurances that are found nowhere else in environmental law--the Administration provides the public with virtually no safeguards to ensure that HCPs will in fact provide longterm conservation benefits.

The following safeguards must be added to achieve a proper balance between the legitimate interests of landowners and the recovery needs of imperiled wildlife.

1. Clarification of Approval Standards for Listed Species Making HCPs Consistent with Recovery

Under the No Surprises Policy, the Administration drastically reduces its ability to adjust plans as needed to ensure species recovery(26) and thus create an unacceptable risk for imperiled species. The serious nature of this risk is apparent when one evaluates the Administration's current weak HCP approval standards for listed species. As noted earlier, under the Administration's interpretation of section 10, HCPs are approved even if they provide no benefit to listed species.(27) HCPs are allowed to promote the decline of species, so long as they do not push the species to the very brink of extinction (ie., cause jeopardy) and so long as they contain some minimal provision for minimizing and mitigating adverse impacts.(28) This latter "minimize and mitigate" requirement is based in part upon the landowners' financial abilities,(29) but no affordability analysis is ever made a part of the public record. With such lax approval standards in place, the No Surprises Policy effectively locks in HCPs that are likely to exacerbate the decline of listed species and HCPs that inevitably will need to be changed in the future to save species from extinction.

Rather than locking into place HCPs that promote species decline and undermine recovery, the Administration should clarify that HCPs may only be approved if they are consistent with a carefully-defined, peer-reviewed strategy for recovering the species.

2. Clarify Approval Standards for Unlisted Species so that HCPs Provide a Net Benefit.

The loss of flexibility to adjust HCPs is also problematic due to the Administration's current lax approval standards for unlisted species. Under the Administration's interpretation of section 10, HCPs covering unlisted species can be approved so long as the HCPs' protections for unlisted species satisfy section 10 approval standards for listed species.(30) This interpretation offers essentially no protection for unlisted species, because the Administration applies section 10 in a manner that does little more than prevent jeopardy, a level of protection that is meaningless to a species not at the brink of extinction. With such lax approval standards in place, the No Surprises Policy effectively locks in HCPs that may be doing little or nothing to protect unlisted species and will need to be changed in the future if the species declines and needs to be listed.

Fortunately, the Administration's proposed Candidate Conservation Agreement (CCA) policy(91) sets forth language that may be useful in ensuring that unlisted species benefit from HCPs. The proposed policy requires CCAs to provide a net benefit to unlisted species, and it elaborates further by requiring that CCAs contribute to elimination of the threats that would lead to a listing.(32) Such a requirement is equally appropriate for protecting unlisted species covered by HCPs.

3. Allow Greater Participation by Concerned Citizens and Independent Scientists

Far too many HCPs are being developed behind the scenes by the Administration and permit applicants, and then released at the close of negotiations for comment by conservationists, independent scientists, and other concerned citizens. This was noted by a group of leading scientists who assembled at Stanford University to analyze HCPs, because HCPs are being "developed without adequate scientific guidance."(33) Conservationists have expressed similar distress about the results of their having been denied opportunities to contribute information and unique perspectives during the HCP development process. To ensure that the best available science is being incorporated into HCPs, to increase the likelihood of acceptance by conservationists and the broader public, and to reduce the likelihood that HCPs will need to be reopened, the Administration should develop rules that ensure that independent experts and affected interests have a seat at the negotiation table from the onset of HCP negotiations.(34)

4. Develop a Credible Adaptive Management Strategy

The fundamental problem with the No Surprises Policy is that it fails to ensure that HCPs are adjusted to take into account new information and changed circumstances. The failure to provide for any adjustments to HCPs could have devastating consequences for imperiled species, which need careful monitoring and frequent management changes to survive in highly-altered landscapes. To ensure that HCPs are adjusted as needed to ensure species recovery, the following adaptive management provisions need to be built into any HCP assurances policy.

a. Monitoring and Biological Goals

The Administration should require that the performance of the HCP be carefully monitored. Biological indicators should be established at the outset of the plan so that key assumptions of the plan can routinely be tested. The landowners should be required to generate monitoring data, and the Administration should in turn be required to evaluate the data and issue regular progress reports for public inspection.

b. Requirements to Take Corrective Action 

The Administration should require the HCP to identify all foreseeable changes in conditions that would have an adverse effect on species recovery, and include the landowner's agreement to undertake specific mitigation strategies to address those changes. The Administration acknowledges the need for such a strategy, but has failed to require it. The Administration also should acknowledge that it bears responsibility to take corrective action to address unforeseeable changed conditions that would adversely affect recovery.

c. Limits on Duration

To ensure that adaptive management strategies are credible, the Administration should limit the duration of HCPs to a time period in which the landowner can reasonably foresee--and design mitigation strategies to address--the future conditions that would adversely affect species recovery. This would create an incentive for landowners to improve the quality of science that is developed for HCPs, since better science would justify longer-term HCPs.

d. Reliable Funding

On the essential question of how plan changes will be funded, the Administration argues that existing appropriations will be adequate and that the need for additional appropriations is "extremely unlikely."(35) This argument is without basis. As discussed above, HCPs often contain questionable scientific assumptions which pose serious risks to species recovery. If the assumptions prove to be flawed as better data is acquired or as a result of changing ecological, social, and economic conditions, new and costly mitigation will likely be needed. The costs of additional mitigation escalates over time as the species decline. Thus, contrary to the assertions of the Administration, it is extremely likely that the costs of remedying failed plans will exceed the notorious low Service budgets.

To ensure adequate funding for corrective action, the Administration should ensure that responsibility is properly divided between private and public sources. As discussed earlier, the landowner should be required to respond to reasonably foreseeable risks in an HCP's adaptive management provisions. A performance bond or other evidence of the landowner's ability to carry out this responsibility should be required as a condition of plan approval. For risks that cannot reasonably be foreseen, the Administration should work to establish a trust fund, and in the interim, establish a line item in their appropriations requests, to cover the costs of corrective action.

III. CONCLUSION

The safeguards discussed above, combined with better guidance on and enforcement of Endangered Species Act regulatory prohibitions and clarification of the goals of habitat conservation plans (HCPs), would help ensure that HCPs are developed in a manner that serves the needs of both landowners and imperiled wildlife.

Unfortunately, the Administration is not likely to make these changes on its own initiative--development interests have been lobbying hard to ensure that the existing HCP program is maintained. Conservationists will need to work even harder to ensure that these policy changes are enacted at the national level and then implemented in individual HCPs. By reshaping the HCP program in this manner, the environmental community can make an essential contribution to the conservation of imperiled wildlife on nonfederal lands.

(1) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(2) Id. [subsections] 1539(a)(1)(B), 1539(a)(2)(A) ("No permit may be issued by the Secretary authorizing any taking . . . unless the applicant . . . submits to the Secretary a conservation plan ...."). Under section 10(a)(2) of the ESA, an incidental take permit may be issued to an applicant if the Secretary finds that the submitted conservation plan specifies:

the impact which will likely result from such taking [authorized by the

plan]; what steps the applicant will take to minimize and mitigate such

impacts, and the funding that will be available to implement such steps;

what alternative actions to such taking the applicant considered and the

reasons why such alternatives are not being utilized;

and such other measures that the Secretary may require as being necessary

or appropriate for purposes of the [conservation] plan. Id. [section] 1539(a)(2)(i)-(iv)

(3) United States Fish & Wildlife Service & National Marine Fisheries Service, Habitat Conservation Planning Handbook i (1996) [hereinafter HCP Handbook]. Prior to 1996, most of the HCPs which were approved covered areas of less than 1,000 acres Id. "However, of the HCPs being developed as of early 1996, approximately 25 exceed 10,000 acres in size, 25 exceed 100,000 acres, and 18 exceed 500,000 acres," suggesting that HCPs have become a "landscape level planning tool utilized to achieve long term biological and regulatory goals." Id.

(4) Id.

(5) See Scott Sonner, More and More, AP Press Pol. Serv., May 3, 1997, at *1-*2, available in 1997 WL 2522322 (noting several environmental and conservation group leaders have serious reservations about the Clinton Administration's No Surprises Policy and efforts to encourage more and more HCPs).

(6) See the forthcoming Volume 14 issue of Endangered Species Update for these articles.

(7) According to the General Accounting Office, over 90% of threatened and endangered species rely on nonfederal lands for some part of their habitat, and over 60% rely on these lands for the majority of their habitat. United States General Accounting Office, endangered Species Act: Information on Species Protection on Nonfederal Lands 1 (1994).

(8) Brussard Quinn, Meffe, Ralls, Murphy, Soule, Noon, Tracy & Noss, A Statement of Proposed Private Lands Initiatives and Reauthorization of the Endangered Species Act from the Meeting of Scientists at Stanford University (Mar. 31, 1997); see also Scott Sonner, Interior to Publish its `No Surprises' Policy on Land Use, Anchorage Daily News, May 29, 1997, at *1, available in 1997 WL 6234959 (quoting the concerns expressed by the scientists who met at Stanford University in February to discuss HCPs which could "become habitat giveaways that contribute to, rather than alleviate, threats species and their habitats").

(9) See Scott Sonner, More and More, AP Press Pol. Serv., May 3, 1997, at *2, available in 1997 WL 2522322 (quoting environmentalist Melinda Pierce as saying "[e]ssentially, [HCPs are] a new way to get around enforcing the Endangered Species Act").

(10) See HCP Handbook, supra note 3, at i, 1-2, 1-7. For the main regulatory prohibitions of the ESA, see 16 U.S.C. [section] 1536(a)(2) (1994) which prohibits federally approved or federally-funded activities from jeopardizing the existence of species or adversely modifying their critical habitats and id. [section] 1538(a)(1)(B) which prohibits the taking of a species within the United States or the territorial sea of the United States. Although a wide variety of other non-regulatory tools can and should be used to persuade developers and others to avoid and minimize harmful impacts to wildlife (e.g., tax incentives, elimination of subsidies, grant programs, technical assistance), these tools will not fill the gaps left by sole reliance on the regulatory prohibitions of the ESA.

(11) Lack of political will is often due to the fact that the economic activities which are harmful to wildlife do not always have the immediate appearance of being harmful to society in general. In fact, even the most broadly supported economic activities (e.g., building hospitals and schools) can pose serious risks to wildlife. To ensure that legitimate economic activities can go forward without undermining the goal of the ESA to protect recovering and imperiled wildlife, an HCP-type process is needed to minimize and mitigate harmful impacts.

(12) See 16 U.S.C. [section] 1538(a)(1)(B) ("[W]ith respect to any endangered species of fish or wildlife . . . it is unlawful for any person subject to the jurisdiction of the United States to . . . take any such species . . . .") (emphasis added). Although unlisted species might indirectly benefit from enforcement of the take prohibition against tasted species that share the same habitat, this benefit would not be realized if the landowner were to engage in preemptive removal of unlisted species from its land in anticipation of an imminent ESA listing.

(13) Of course, a better outcome would be for HCP safeguards to be codified in ESA reauthorization. For a recent constructive proposal to improve section 10, see Endangered Species Recovery Act of 1997, H.R. Res. 2351, 105th Cong. (1997), full text of bill available at <http://thomas.loc.gov>. The bile which has been referred to the House Committee on Resources and the House Ways and Means Committee, was introduced by Rep. George Miller ((D-Cal.) on July 31, 1997. The Services recently issued a proposed rule to codify the substance of the ESA No Surprises Policy as set out in this handbook, which was issued in November, 1996. Proposed Rules, 62 Fed. Reg. 29,091 (May 29, 1997) (to be codified at 50 C.F.R. pt. 17).

(14) See A.P. Dobson, et al., Geographic Distribution of Endangered Species in the United States, 275 Science 550 (Jan. 24, 1997); see also Edward O. Wilson, The Diversity of Life 261 (1992). The term "hot spot," coined by Norman Myers in 1988, refers to "the emergency care cases," the areas that contain both "large numbers of endemic species and are under extreme threat." Id. Myers labeled only eighteen areas as hot spots, however even these relatively small areas contain over one fifth of the world's plant species. Id.

(15) See HCP Handbook, supra note 3, at 1-4 ("The decision to obtain a[n HCP] permit lies with the prospective permit applicant.").

(16) Id. at 3-20.

(17) Id. at 3-20 to 3-21.

(18) See supra note 3 and accompanying text.

(19) See 16 U.S.C. [section] 1536(a)(1) (1994).

(20) See id. [section] 1532(3) (defining "conservation" as "all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary"). The HCP process was modeled after the San Bruno Mountain HCP and was endorsed by Congress when the HCP process was incorporated into the ESA in 1982. HCP Handbook, supra note 3, at 1-2 to 1-3.

(21) See, e.g. Administration's New Assurance Policy Tells Landowners: "No Surprises" in Endangered Species Planning, Office of the Secretary, U.S. Dep't of the Interior, News Release, Aug. 11, 1994, available in 1994 WL 440313; HCP HAndbook, supra note 3, at 1-1 to 1-3 (both recounting the history behind the issuance of the HCP handbook).

(22) Proposed Rules, 62 Fed. Reg. 29,091, 29,091 (May 29, 1997) (to be codified at 50 C.F.R. pt. 17). This proposed rule was largely in response to the settlement agreement reached in Spirit of the Sage v. Babbitt, No. 96-CV-02503 (D.C. Cir. filed Mar. 21, 1997). 62 Fed. Reg. at 29,091.

(23) Announcement of Draft Policy for Candidate Conservation Agreements, 62 Fed. Reg. 32,183 (June 12, 1997); Announcement of Draft Safe Harbor Policy, 62 Fed. Reg. 32,178 (June 12, 1997). While candidate conservation agreements and safe harbor agreements are outside the scope of this introduction and the following articles, they may present keys to ensuring the goals of the ESA are furthered.

(24) See HCP Handbook, supra note 3, at 3-29 to 3-32.

(25) Id.

(26) Id. at 3-29 to 3-33 (stating that "if unforeseen circumstances occur during the life of an HCP, the [US]FWS and NMFS will not require additional lands, additional funds, or additional restrictions on lands or other natural resources").

(27) Id. at 3-21 ("No explicit provision of the ESA or its implementing regulations requires that an HCP must result in a net benefit to affected species.").

(28) Id. at 7-3.

(29) Id. (noting that in the HCP development phase there may be a "weighing [of] the costs of implementing additional mitigation").

(30) Id. at 4-4. The HCP Handbook states:

Under the "No Surprises" policy [] an unlisted species is said to be

"adequately covered" by an HCP and subject to the assurances of "No

Surprises" when the species is addressed in the HCP "as if it was listed

pursuant to section 4 of the ESA, and in which the HCP measures for that

species would satisfy permit issuance criteria under section 10(a)(1)(B)

of the ESA if the species was listed." Id.

(31) Announcement of Draft Policy for Candidate Conservation Agreements, 62 Fed. Reg. 32,183 (June 12, 1997). The ultimate goal of candidate conservation agreements is "to encourage, to the extent feasible and controllable by a participating property owner or State or local land management agency, the removal of threats to the covered species so as to nullify the need to list them as threatened or endangered." Id. at 32,185.

(32) Id. at 32,186 ("Before entering into an Agreement, the Services . . . must make a written finding that species included in such an Agreement will receive a sufficient conservation benefit from the activities conducted under the Agreement."). (33) Jocelyn Kaiser, When a Habitat is Not a Home: Many Ecologists Say Conservation Plans Designed to Ease Tensions Between Landowners and Environmentalists are Not Grounded in Good Science, 276 Science 1636, 1636 (June 13, 1997).

(34) See John Kostyack, Habitat Conservation Planning: Time to Give Conservationists and Other Concerned Citizens a Seat at the Table, 14 Endangered Species Update 51 (1997).

(35) HCP Handbook, supra note 3, at 3-32.

John Kostyack, Mr. Kostyack is Counsel with the National Wildlife Federation Office of Federal and International Affairs in Washington, D.C., where he specializes in endangered species and biodiversity law.